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A. M. v. Newmont Slate Co. (January 4, 2007)

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A. M. v. Newmont Slate Co. (January 4, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
A. M. Opinion No. 59-06WC
By: Margaret A. Mangan
v. Hearing Officer
Newmont Slate Co. For: Patricia Moulton Powden
Commissioner
State File No. U-09157
Hearing held in Montpelier on September 26, 27 and 28, 2006
Record closed on December 4, 2006
APPEARANCES:
Steven J. Howard, Esq., for the Claimant
David R. McLean, Esq., for the Defendant
ISSUES:
1. Whether Mr. McFarren is permanently and totally disabled as a result of the November 5, 2003 injury.
2. Whether Mr. McFarren has committed fraud such that he is not entitled to any further workers’ compensation benefits.
EXHIBITS:
Joint: Miscellaneous correspondence
Claimant:
A. Whitehall Health Center Records
B. Physical Therapy Records
C. Vermont Orthopaedic Clinic records
D. Rutland Regional Medical Center records
E. Vermont Neurosurgery Associates records
F. Dr. Kirbach’s FCE Report
G. CNA letter March 19, 2004
H. Photographs (1-3)
I. Report of Ken Sutton March 31, 2005
J. Paul Langevin’s Report and attachments June 15, 2005
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Defendant
1. Dr. McLellan IME Report
2. Dr. McLellan correspondence
3. John May’s Vocational Assessment
4. Vocational Rehabitation Closure Report
5. Surveillance Video and report October 3, 2005
6. Paul Langevin’s notes
7. Supervisory Knowledge Test
8. Dr. Vargas deposition transcript
9. Correspondence Howard to Langevin May 31, 2005
10. Vargas to Howard letter December 13, 2004
11. New York State Disability Examination Report September 27,2004
12. Documents from Kirbach FCE
13. VR Progress report
14. Entitlement Assesment
15. Report #1 January 27, 2004
16. Report #2 February 19, 2004
FINDINGS OF FACT:
1. At all times relevant to this action, Claimant was an employee and Newmont Slate his employer within the meaning of the Employer’s Liability and Workers’ Compensation Act (Act).
2. CNA Insurance, the carrier, was the workers’ compensation insurer for Newmont Slate at all times relevant to this action.
3. Claimant is 57 years old. He has worked in the quarry industry his entire adult life, doing hard work as a laborer and slate trimmer, work that suited him with his physical strength, limited education and below average intellectual abilities.
4. On November 5, 2003, Claimant injured his lower back in the course of his employment with Defendant.
5. Since the date of injury, except for a brief return to work, Claimant has not worked. His physical activities are limited to household chores and walking short distances. Otherwise, he sits and watches television.
Medical treatment
6. Dr. Arvin Aranda, Claimant’s primary care physician, diagnosed low back strain after the injury in November of 2003. He prescribed Vicodin, a week out of work and physical therapy.
7. By January 2004 Claimant was referred to the Vermont Orthopaedic Clinic and an MRI was performed. A disc protrusion and bulges were revealed from L3 to S-1.
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8. Next, Claimant was treated with epidural steroid injections and more physical therapy. Because he failed to receive pain relief, Claimant was referred to a neurosurgeon, Dr. Joseph Corbett. However, Dr. Corbett determined that Claimant was not a surgical candidate.
9. Claimant remained symptomatic.
10. In November 2004 Dr. Vargas placed Claimant at medical end result with a 7% whole person impairment, based on range of motion deficits.
Vocational Rehabilitation Services
11. In January 2004 Claimant was referred to Patricia Carr of Concentra Integrated Services who determined that Claimant was entitled to VR services.
12. VR services were discontinued in June 2004 based on a determination by Claimant that he was permanently and totally disabled under the odd lot doctrine.
Functional Capacity
13. Claimant was released to work with the restriction that he not lift more than ten pounds, have no prolonged sitting or standing, and no bending or twisting at the waist. Claimant tried to return to his old job with those restrictions, but worked less than a full workday.
14. Dr. Corbett expressed doubt that Claimant would ever be able to return to work.
15. Dr. Vargas opined that Claimant would not be able to perform any heavy work.
16. A formal FCE with a J-Tech system led to the conclusion that Claimant could lift 18 pounds at waist level and 13 pounds at shoulder and overhead, but that he was not able to carry weights over significant distances. Based on the FCE, the examiner, Dr. Arnold Kirbach, determined that Claimant had no functional capacity conducive to employment. He later explained further that Claimant would need to change positions frequently, would be unable to drive long distances or ride for more than 30 minutes without having back pain.
17. Dr. Robert McLellan then examined claimant at the carrier’s request. Dr. McLellan determined that pain behaviors were not consistent or reliable. On examination, he noted that Claimant’s range of motion was limited by pain. Dr. McLellan first determined that Claimant had a part-time, sedentary capacity.
18. In October 2005, Claimant helped his brother hang lights on the outside of his home, an activity that was captured on videotape. Based on an investigator’s report, Dr. McLellan modified his opinion, giving Claimant a light to moderate level work capacity.
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19. The videotape, work of a private investigator, shows Claimant lifting a flag, stringing lights around the house, bending to pick up objects, carrying yard debris, and lifting a fiberglass and aluminum ladder. None of the objects lifted were heavy. The tape did not show what Claimant was doing when he took breaks.
Vocational Opinions
20. Paul Langevin and Ken Sutton support this claim for permanent total disability benefits based on their evaluations. Mr. Sutton performed the vocational assessment. He determined that Claimant had a sixth grade math level, fifth grade level for spelling and ninth grade level for reading. He showed an interest, but little aptitude, for technical work. Mr. Sutton determined that Claimant’s temperament was not well suited for an educational setting. In sum, Mr. Sutton determined that Claimant was “vocationally limited to unskilled manual labor,” and that there are substantial barriers to his ability to return to work.
21. Mr. Langevin conducted a forensic vocational rehabilitation evaluation for the Claimant. In conducting his assessment, Mr. Langevin did not consider part-time work as regular gainful employment. In fact, Mr. Langevin did not address part-time employment in any regard in his assessment.
22. Mr. Langevin agreed that the work injury tracking forms from Vermont Orthopedic Clinic indicated that Mr. McFarren was not totally disabled but rather that he was not able at that time to return to his former occupation.
23. Mr. Langevin conceded that the likelihood of the Claimant returning to regular gainful employment if he did obtain his GED is as yet unresolved. It is not something that Mr. Langevin assessed or analyzed in his forensic report.
24. John May conducted an independent forensic vocational evaluation for the employer. Mr. May has extensive experience conducting forensic vocational rehabilitation evaluations and is certified by the American Board of Vocational Experts. Mr. May had available to him the reports prepared by Mr. Langevin and Mr. Sutton, records from Ms. Carr, and the Claimant’s medical records. Mr. May did not meet with the Claimant individually, however he felt that the reports of the three other vocational rehabilitation counselors was sufficient for him to develop his opinions.
25. Based upon Mr. May’s review of the vocational rehabilitation records, he opined that rehabilitation services had been seriously underutilized and further that the Claimant voluntarily withdrew from the vocational rehabilitation services such that the Claimant never fully engaged the process such that it can be reasonably concluded he is permanently and totally disabled from all regular gainful employment.
26. Even if Dr. Kirbach’s FCE report was a valid indicator of the Claimant’s overall work capacity, Mr. May felt that there were options available to return the Claimant to regular gainful employment.
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27. Mr. May opined that the abilities demonstrated by Mr. McFarren in the surveillance video would give him at least a light duty work capacity.
28. Further, Mr. May concluded that the Claimant’s age, experience and work history would be beneficial to him in an attempt to find regular gainful employment. With respect to his education, Mr. May testified that vocational rehabilitation exists for the very purpose of assisting people in overcoming such issues. However, given the surveillance video it appeared to Mr. May that there would be employment opportunities at his current education level.
CONCLUSIONS OF LAW:
Permanent and Total Disability
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1962).
2. Claimant alleges he is permanently totally disabled pursuant to 21 V.S.A. § 644 (b), the odd lot doctrine, defined as following in WC Rule 11.3100:
A claimant shall be permanently and totally disabled if their work injury causes a physical or mental impairment, or both, the result of which renders them unable to perform regular, gainful work. In evaluating whether or not a claimant is permanently and totally disabled, the claimant’s age, experience, training, education, occupation and mental capacity shall be considered in addition to his or her physical or mental limitations and/or pain. In all claims for permanent total disability under the Odd Lot Doctrine, a Functional Capacity Evaluation (FCE) should be performed to evaluate claimant’s physical capabilities and a vocational assessment should be conducted and should conclude that the claimant is not reasonably expected to be able to return to regular, gainful employment. A claimant shall not be permanently totally disabled if he or she is able to successfully perform regular, gainful work. Regular, gainful work shall refer to regular employment in any well-known branch of the labor market. Regular, gainful work shall not apply to work that is so limited in quality, dependability or quantity that a reasonably stable market for such work does not exist.
3. Claimant must have “no reasonable prospect for finding regular employment.” 21 V.S.A. §645. Regular and gainful work means work that is not casual or sporadic, work that is not charitable, where one earns wages. See, Rider v. Orange East Supervisory Union, et. al. Op No. 14-03 (2003). Claimant has a long history of reliable work performance. While there is conflicting testimony on his mental and social abilities, his ability to communicate, interact with others, and learn new skills, as demonstrated before this hearing officer and in his long employment, demonstrates that he could greatly benefit from vocational rehabilitation services. To date, the Claimant has not used vocational rehabilitation at all in an attempt to return to suitable employment. Without such an effort, permanent total disability benefits will not be awarded.
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4. Furthermore, the medical evidence support the defense position that he is capable of much more than that reflected in the FCE report. Section 644 does not require that one have a full time work capacity to be capable of regular gainful employment. In sum, Claimant has not proven permanent total disability.
Defense of fraud
5. Finally, Defendant alleges that Claimant misrepresented his actual physical capacity to health care provider to obtain workers’ compensation benefits.
6. The Act vests discretion in the Commissioner to require forfeiture of “all or a portion” of workers’ compensation benefits if an employee “wilfully makes a false statement or representation, for the purpose of obtaining any benefit or payment under the provisions of this chapter…” 21 V.S.A. § 708(a).
7. The defense argues “Claimant has repeatedly misrepresented his condition to his healthcare providers, the vocational rehabilitation specialists hired to pursue his claim for permanent total disability benefits, the employer’s independent medical examiner and this hearing officer.” It contends that the Claimant is not entitled to any further worker’s compensation benefits, including temporary and permanent impairment benefits and medical benefits.
8. The allegation of fraud is based on the assumption that Claimant is not in the pain he says he has. I cannot agree. With the subjectivity of pain, one’s belief that he is unable to perform certain actions, while not necessarily true, is not necessarily a false statement. The videotape provides information that helps the defense defeat this permanent total claim. But standing alone, with the limited actions seen on the tape, I do not find that Claimant willfully misrepresented his condition to obtain benefits.
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ORDER:
Therefore, based on foregoing findings of fact and conclusions of law:
• The Claim for Permanent Total Disability benefits is DENIED;
• The defense of fraud is also DENIED.
Dated at Montpelier, Vermont this 4th day of January 2007.
________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

R. C. v. Consolidated Memorials, Inc. (January 2, 2007)

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

R. C. v. Consolidated Memorials, Inc. (January 2, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
R. C. Opinion No. 54-06WC
By: Margaret A. Mangan
v. Hearing Officer
Consolidated Memorials, Inc. For: Patricia Moulton Powden
Commissioner
State File No. W-03620
Hearing held in Montpelier on September 12, 2006
Record closed on October 17, 2006
APPEARANCES:
Heidi S. Groff Esq., for the Claimant
Joseph M. Lorman Esq., for the Defendant
ISSUES:
1. Did the Claimant sustain an April 2004 work injury that caused an infection, which led to the amputation of both legs above the ankles, resulting in permanent total disability?
2. Is the Claimant entitled to thirteen weeks of temporary total disability benefits?
3. If entitled to a workers’ compensation award, may the Claimant receive a lump sum payment of benefits?
EXHIBITS:
Joint Exhibit No. I: Medical Records on CD
Claimant’s 1: C.V. of Ernest Atlas, M.D.
Defendant’s A: C.V. of Philip Carling, M.D.
FINDINGS OF FACT:
1. The Claimant was an employee within the meaning of the Vermont Workers’ Compensation Act (Act) for all relevant periods.
2. The Defendant was an employer within the meaning of the Act for all relevant time periods.
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3. By April 2004, the Claimant was working roughly sixty hours per week as the General Manager of Consolidated Memorials.
4. As General Manager, the Claimant chipped granite with a chisel and handset, used a saw, drove trucks, placed orders for materials, and performed other similar tasks.
5. The Claimant wore gloves to perform these tasks only when it was cold.
6. The Claimant always had cuts on his hands and arms from working with sharp granite.
7. On April 5, 2004, the Claimant cut and scraped his hands and arms while chipping granite with a chisel and handset. Some of these injuries bled. The Claimant was familiar with the first aid kit and used antibiotic ointment and bandages.
8. On April 9, 2004, the Claimant was performing his duties as General Manager. While at work, the Claimant suddenly became nauseated and began vomiting.
9. Later that day, the Claimant’s wife came home to find the Claimant lying on the couch, shivering and wrapped in blankets. The Claimant was vomiting with chest pain and diarrhea.
10. That evening, the Claimant’s was treated at the Central Vermont Hospital’s Emergency room, where he was diagnosed with influenza and pulled chest muscles. Upon release, the Claimant was given medication and was instructed to return if his symptoms worsened.
11. The Claimant’s symptoms continued throughout the night and into the following morning.
12. On April 10, 2004, the Claimant continued to experience nausea, vomiting, diarrhea, and chest pain. Additionally, the abrasions on the Claimant’s hands and arms began to feel very itchy. The Claimant requested that his wife scratch these abrasions.
13. Upon scratching the Claimant’s hands and arms, the Claimant’s wife noticed that a cut on the Claimant’s right pinky finger had opened and was exuding puss. She treated this wound with peroxide, triple antibiotic ointment, and a band-aid. She also noticed other scratches and abrasions on the Claimant’s hands and arms.
14. At approximately 10 PM on April 10, 2004, the Claimant was admitted to the Central Vermont Hospital because of his worrisome and persistent symptoms.
15. In the early morning hours on April 11, 2004 the Claimant’s vital signs continued dropping. As a result, he was admitted to the Intensive Care Unit and given intravenous fluids.
16. The April 11, 2004 medical records show that the Claimant had multiple sores on his hands from work related trauma. These records also note that one of the sores “had a
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pustule that was I&D’d by the wife yesterday.” The records then state that the sores appeared to be healing with no active discharge.
17. A stool sample taken that day at the Central Vermont Hospital tested positive for a few colonies of Group A Streptococcus.
18. Later that morning, the Claimant’s condition continued to worsen until he was in a state of septic shock. At this time he was transported by helicopter to Dartmouth-Hitchcock Medical Center (DMHC).
19. The Claimant became comatose as a result of his severe illness.
20. Also on April 11, 2004, a DMHC CT scan found that the Claimant’s terminal ileum, cecum, and ascending colon were moderately thick-walled. The differential diagnosis of this condition included “typhilitis, Crohn’s disease, lymphoma, infectious etiology such as Giardia; ischemia less likely without supporting clinical evidence such as acidemia.”
21. On April 12, 2004, a paronychia, infection in the tissue surrounding the nail bed, on the Claimant’s right thumb tested positive for Group A Streptococcus.
22. By April 13, 2004, the Group A Streptococcus was found in the Claimant’s bloodstream and urine.
23. DHMC repeatedly tested the Claimant’s stool for the presence of white blood cells. These tests were all negative.
24. The doctors at DHMC found inflamed and necrotic tissue along the Claimant’s left chest wall.
25. As a result of complications from the septic shock, the Claimant’s lower extremities became gangrenous. This condition led to bilateral, below the knee amputations of the Claimant’s legs.
26. Beginning on April 12, 2004, the Claimant was out of work for a total of thirteen weeks as a result of this experience.
27. On July 12, 2004, the Claimant returned to work as a General Manager at Consolidated Memorials.
28. The Claimant is requesting TTD compensation for the recovery period from April 12, 2004 through July 11, 2004.
29. The Claimant is requesting attorney fees and costs. Claimant’s Counsel has a 25% Fee Agreement with the Claimant and an approved Attorney Lien. The Claimant has included an itemized list of litigation costs totaling $5,762.54.
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Medical Testimony
Ernest Atlas, M.D.
30. Dr. Atlas is an expert in infectious diseases and has been practicing for over thirty years. He regularly consults in infectious disease cases and has personally treated over a dozen cases involving Group A Streptococcus.
31. After reviewing the Claimant’s medical records, the Claimant’s wife’s deposition testimony, and interviewing the Claimant’s wife, Dr. Atlas opined that the Group A Streptococcus entered the Claimant’s body via the work related cuts and abrasions.
32. From there, Dr. Atlas believes that the bacteria spread through the Claimant’s bloodstream to the deep tissue of the left chest wall, where it produced a necrotizing fasciitis and septic shock. This condition caused blood clotting in the small vessels of the Claimant’s legs and gangrene. The septic shock also resulted in decreased blood flow and the need for vasoconstrictor medications. As a result of these factors, below the knee amputations of the Claimant’s legs were required.
33. Dr. Atlas explained that a superficial scratch or abrasion is likely to heal quickly once pus is exuded, even if this was the initial source of the Group A Streptococcus infection.
34. Dr. Atlas stated that the vast majority of Group A Streptococcus infections originate from breaks in the skin. He also stated that once this infection enters the bloodstream, the bacteria can circulate throughout the body.
35. While not impossible, in over thirty years of infectious disease practice Dr. Atlas had never seen, read about, or heard of Group A Streptococcus entering the body through the bowel.
36. Dr. Atlas opined that if this type of infection were to begin in the bowel then the stool would have had heavy growth of Group A Streptococcus and a high white blood cell count.
Philip C. Carling, M.D.
37. Dr. Carling has specialized in infectious disease medicine for over thirty years. However, he does not have first hand experience treating patients with Group A Streptococcus resulting in necrotizing fasciitis.
38. After reviewing the Claimant’s complete medical records, witness depositions, and medical reports, Dr. Carling opined that the work related scratches and abrasions were not the most likely source of the Group A Streptococcus.
39. Rather, Dr. Carling believed that the primary infection developed in the Claimant’s terminal ileum and ascending colon. This infection led to overwhelming streptococcal sepsis, organ failure, and the need for a bilateral leg amputation.
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40. Dr. Carling believed that the presence of a “few” colonies of Group A Strep showed that the bowel was the primary site of the infection.
41. Dr. Carling opined that the Claimant’s right thumb tested positive for Group A Streptococcus because the thumb came in contact with infected stool.
42. Dr. Carling agreed that gastrointestinal symptoms can be a result of the sepsis, no matter where the source of the infection is.
43. Dr. Carling could not recall any examples of cases, or any literature where Group A Streptococcus entered the body via the bowel.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1962). The claimant must establish by sufficient credible evidence the character and extent of the injury and disability as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984).
2. To qualify for workers’ compensation benefits, the personal injury must arise out of and in the course of employment. See 21 V.S.A. § 618 (a)(1).
3. In Vermont, a worker who is injured at work may collect temporary disability benefits depending upon his actual capacity to work during the period that he is healing, until such time as he or she reaches maximum medical improvement. Hepburn v. Concrete Professionals, Inc./Traveler’s Insurance Co., Opinion No. 16-03WC (2003).; 21 V.S.A § 642.
4. A Claimant is entitled to temporary total disability benefits under 21 V.S.A. § 642, while either: (1) in the healing period and not yet at a maximum medical improvement, Orvis v. Hutchins, 123 Vt. 18 (1962), or (2) unable as a result of the injury either to resume the former occupation or to procure remunerative employment at a different occupation suited to the impaired capacity. Roller v. Warren, 98 Vt. 514 (1925); Votra v. Mack Molding, Inc. Opinion No. 44-02WC (2002).
5. Under 21 V.S.A. § 644(a)(2), a Claimant is entitled to at least 330 weeks of permanent total disability if the work related injury causes the loss of both feet at or above the ankle.
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6. There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the inference from the facts proved must be the more probable hypothesis. Burton Holden & Martin Lumber Co., 112 Vt. 17 1941. Where the causal connection between an accident and an injury is obscure, and a layperson would have no well-grounded opinion as to causation, expert medical testimony is necessary. J.G. v. Eden Park Nursing Home, Opinion No. 52-05WC (2005) (citing Lapan v. Berno’s Inc., 137 Vt. 393 (1979)).
7. When qualified medical expert opinions are in conflict, this Department has traditionally examined the following criteria: 1) the length of time the physician has provided care to the claimant; 2) the physician’s qualifications, including the degree of professional training and experience; 3) the objective support for the opinion; and 4) the comprehensiveness of the respective examinations, including whether the expert had all the relevant records. J.C. v. Richburg Builders. Opinion No. 37-06WC (2006). (citing Miller v. Cornwall Orchards, Opinion No. 20-97WC (1997); Gardner v. Grand Union, Opinion No. 24-97WC (1997)).
8. The medical experts in this case were both highly qualified infectious disease experts. Neither physician provided treatment to the Claimant. Rather, both doctors relied on the Claimant’s medical records, depositions, and their own extensive training and experience when rendering their expert medical opinions. As a result, the fact that Dr. Atlas has personal experience in treating patients with similar Group A Streptococcal infections lends greater weight to his opinion.
9. Dr. Atlas testified that Group A Streptococcal bacteria most often enters the body via a break in the skin. The Claimant had multiple work related cuts and abrasions on his arms and hands at the onset of his illness. The Claimant’s medical records document signs of infection on two of these wounds, one testing positive for the infectious bacterium.
10. By contrast, neither expert could recall any case they had ever worked on, read about, or even heard of where the bowel was the point of origin for a Group A Strep infection. Furthermore, while a CT scan showed moderate thickening of the bowel wall, none of the DMHC physicians connected this finding with the Claimant’s sepsis or took further action.
11. Furthermore, Dr. Atlas stated that if the bowel were the primary infection site then the Claimant’s stool would have been teeming with white blood cells and bacterial colonies. Instead, white blood cells were absent each time the Claimant’s stool was tested. Rather than finding a heavy concentration of bacterial colonies, the stool contained only a few colonies that were likely deposited via the Claimant’s bloodstream.
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12. Hence, the April 2004 work related injuries sustained by the Claimant caused the above infection and complications leading to a bilateral leg amputation. This is a scheduled injury under 21 V.S.A. § 644(a)(2); therefore, the Claimant is entitled to at least 330 weeks of permanent total disability.
13. Furthermore, from April 12, 2004 through July 11, 2004, the Claimant was recovering from complications resulting from his work related injury, unable to work and had not yet reached medical end result. As such, the Claimant is also entitled to TTD benefits for this thirteen-week period.
14. Based on 21 V.S.A. § 678(a) and Rule 10, Claimant is awarded Attorney fees of 20% of the total award or $9,000, whichever is less.
Lump Sum Payment
15. In 2000, the legislature amended 21 V.S.A. § 652(b) to permit a Claimant to request an award payment in one lump sum. Sanz v. Douglas Collins Const., ¶ 6, 2006 Vt. 102. The Commissioner will grant this request if it is in the best interest of the Claimant or his family. Id.
16. The Department considers the following factors when determining whether a lump sum payment is in the best interest of a claimant. The claimant and/or the claimant’s household receives a regular source of income aside from any workers’ compensation benefit, the lump sum payment is intended to hasten or improve claimant’s prospects of returning to gainful employment or the lump sum payment is intended to hasten or improve claimant’s recovery or rehabilitation; the claimant presents other evidence that the lump sum award is in their best interests. Patch v. H.P. Cummings Const., Opinion No. 49-02WC (2002); Rule 19.5000.
17. A lump sum payment will not be awarded if: the award was based upon a hearing decision for which an appeal has been filed and the employer or insurer objects to the payment of the lump sum; or the claimant is best served by receipt of periodic income benefits; or the payment is intended to pay everyday living expenses; or the lump sum payment is intended to pay past debts. Id.
18. In the present case, this Claimant has returned to work, earning regular income outside of any workers’ compensation award. Therefore, the Claimant need not rely on the periodic payment of benefits for everyday expenses. As such, the Department recognizes that a lump sum award is in the best interest of this Claimant.
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ORDER:
THEREFORE, based on the above Findings of Fact and Conclusions of Law, the Claimant’s claim is compensible and the Defendant is ORDERED to pay:
1. Related Medical Benefits;
2. TTD benefits from April 12, 2004 through July 11, 2004;
3. A lump sum payment of PTD, pursuant to 21 V.S.A. § 644(a)(2), for at least 330 weeks;
4. Statutory interest from the date the ordered benefits should have been paid had this case been accepted, pursuant to 21 V.S.A. §664;
5. Attorney fees of 20% of the total award or $9,000, whichever is less.
Dated at Montpelier, Vermont this ____ day of December 2006.
___________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

S. C. v. Barre Supervisory Union School (July 9, 2007)

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S. C. v. Barre Supervisory Union School (July 9, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
S. C. Opinion No. 18-07WC
v. By: Rebecca L. Smith
Staff Attorney
Barre Supervisory Union School For: Patricia Moulton Powden
Commissioner
State File No. T-11595
RULING ON DEFENDANT’S MOTION FOR RECONSIDERATION AND/OR STAY OF FINAL DECISION AND CLAIMANT’S MOTION TO RECONSIDER REGARDING ATTORNEY’S FEES, COSTS, INTEREST AND IMPAIRMENT RATING
The Defendant moves that the Department reconsider and modify, or in the alternative stay pending appeal, the final decision, Opinion No. 53-06WC, issued on January 2, 2007 after formal hearing in this workers’ compensation matter. Specifically, the Defendant disputes the Department’s finding of permanent partial impairment in Conclusion of Law 8, which states that Dr. Farrell’s is the only permanency opinion on record. The Defendant asserts that Dr. Hebben’s assessment of no permanent impairment is the correct one.
The Claimant requests several actions in her motion: 1) award of attorney’s fees and costs on the basis that the Claimant partially prevailed at hearing, 2) clarification of the specific percentage of impairment awarded, 3) an award of interest on all outstanding benefits ordered, and 4) an order directing payment of the permanent partial disability benefits in a lump sum pursuant to §652.
The initial opinion denied permanent total disability and awarded permanent partial impairment as assessed by Dr. Farrell, who provided a rating in the form of a range of 26-32%. It did not address attorney’s fees and costs or interest.
Permanent Partial Impairment
The Defendant argues that the Department erred in awarding permanent partial disability because that conclusion was not based on the facts found. Specifically, the Defendant disputes the statement in Conclusion of Law 8 that Dr. Farrell’s was the only permanency rating advanced, noting that Dr. Hebben assessed no impairment associated with the work injury.
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Dr. Hebben’s opinion is founded on her conclusion that the Claimant suffered no psychiatric or cognitive injury as a result of the January 2003 accident. However, Dr. Hebben did find a somatoform disorder, which had not previously been diagnosed. Dr. Hebben describes that the mild head injury provided the Claimant with “a shelf to place [her preexisting psychological conditions] on.” Further, Dr. Hebben questioned the diagnosis of concussion and post concussion syndrome, while it is well established by both the Claimant’s treatment providers and by independent examiners hired by the Defendant that the Claimant experienced mild grade 1 concussion, followed by post concussion syndrome with persistent effects. Both Dr. Preis and the Claimant testified that a series of pre-injury conditions, essentially controlled and not significantly interfering with the Claimant’s teaching career, markedly worsened subsequent to the injury. Dr. Preis describes the post-injury symptoms as becoming chronic rather than episodic.
Therefore, upon review and reconsideration, the original finding that the lingering effects of the work injury combined with the pre-existing conditions to produce disability are the most probable hypothesis. This conclusion is additionally supported by Dr. Peyser, who opined that “the incident may have spawned a psychological reaction which may be impacting the results of some of her testing,” and recommended that the Claimant work with a vocational rehabilitation psychologist to “map out compensatory and recovery strategies along with pain management skills.”
Percentage of Impairment
In June 2005, Dr. Farrell found a psychological impairment directly attributable to the work injury of 26-32 % based on the Colorado Department of Labor and Employment guidelines. The AMA Guides to the Evaluation of Permanent Impairment assess impairment due to mental and behavioral disorders, but do not assign numerical impairment ratings as they do for other injuries. The Department has recognized the Colorado system for the purpose of assigning an impairment percentage to mental disorders. See, e.g. Bodell v. Webster Corporation, Opinion No. 62-96WC (October 22, 1996), Sargent v. Town of Randolph Fire Department, Opinion No. 37-02WC (August 22, 2002). Close comparison of Dr. Farrell’s findings with Table 13-8 of the Guides (Criteria for Rating Impairment due to Emotional or Behavioral Disorders) and the corresponding examples indicates correlation with high end Class 2 (moderate limitation of some activities of daily living, 15-29%) to low end Class 3 (severe limitation in performing most activities of daily living, 30-69%) impairment. Consequently, I find the Claimant’s whole person impairment rating to be 30%.
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Attorney’s Fees and Costs
By oversight, the initial opinion neglected to address attorney’s fees and costs. The Claimant has submitted an accounting of $19,719.00 in fees and $6,826.34 in costs.
The Claimant sought to establish work-related permanent total disability, or, in the alternative, work-related permanent partial disability; the Defendant disputed any permanent disability attributed to the work injury. Awarding of attorney’s fees is discretionary pursuant to 21 V.S.A. §678. The Claimant has prevailed in part, and is thereby entitled to of a portion of the fees and costs sought. An award in the amount of 50% of the fees sought, or $9,859.50, is appropriate to the degree of the Claimant’s success, in consideration of the extent to which the necessary preparations for the alternative positions overlapped.
Necessary costs are mandatory when a claimant prevails. Having prevailed in part, the Claimant is entitled to an award of costs, however the costs sought in this matter far exceed the norm for claims of this type. Payments to one individual alone, Dr. Paul R. Solomon, exceed four thousand dollars. Dr. Solomon’s role in preparing the case is not clear, and without further elaboration cannot be deemed necessary. Accordingly, $2,776.34 in costs is awarded.
Interest
Pursuant to 21 V.S.A. §664, an award shall include the date on which the Defendant’s obligation to pay compensation began, and shall include interest at the statutory rate computed from that date. Defendant’s obligation to pay temporary partial disability compensation began at the termination of the period of temporary total disability, which the parties have stipulated occurred on April 26, 2005. Interest on the benefits due shall be paid from that date.
Lump Sum
The Claimant requests an order requiring that the permanent partial disability benefits be paid in a lump sum in accordance with 21 V.S.A. §652 in order to protect her Social Security benefits from offset. Section 652 was amended in May 2006 to require that, in the absence of a claimant’s request to the contrary, any order for a lump sum payment of permanent partial disability benefits shall include a provision accounting for excludable expenses and prorating the remainder of the lump sum payment in the manner set forth by the Social Security Administration in order to protect the claimant’s entitlement to Social Security Benefits. The Department relies upon party counsel to provide such an accounting for review and approval, and cannot approve lump sum payment in its absence.
Stay
To prevail on its request for stay of the award of permanent partial disability benefits, the Defendant must demonstrate 1) that it is likely to succeed on the merits of the appeal; 2) that it would suffer irreparable harm if the stay were not granted,; 3) that a stay would not substantially harm the other party; and 4) that the best interests of the public would be served by the issuance of the stay. In re Insurance Services Offices, Inc. 148 Vt. 634, 635 (1987).
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The Defendant argues that it will likely prevail on appeal because the Department’s conclusions were not based upon the facts as presented at hearing. Specifically, the Defendant notes that Conclusion of Law 8 conflicts with the facts found in Finding 38. The Defendant’s arguments regarding the other three stay factors are similarly based. Those concerns are addressed above in the discussion regarding the reconsideration of the award of permanent partial disability benefits. The defendant has failed to sufficiently demonstrate that another forum, after interpreting all submitted evidence, would reach a different conclusion. See, e.g. Carter v. Portland Glass, Opinion No.8RS-98WC (April 3, 1998 and Feb. 6, 1998). Without this essential prong of the four-part test under In re Insurance Services Offices, Inc., the Defendant’s arguments regarding the other three prongs are diminished, and lead to the conclusions that the required factors are not demonstrated. Accordingly, the motion for a stay must be denied.
ORDER:
Therefore, based upon the forgoing:
1. The award of permanent partial disability is upheld after reconsideration;
2. PPD shall be at the rate of 30% whole person disability;
3. Interest is awarded as though the PPD payments had commenced on April 26, 2005;
4. Claimant is awarded attorney’s fees and costs in the amount of $10,625.00;
5. Claimant’s request for a lump sum payment of benefits is denied.
Dated at Montpelier, Vermont this 9th day of July 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.

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