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Matthew Commo v. Stevens Gas Services, Inc. (February 3, 2010)

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Matthew Commo v. Stevens Gas Services, Inc. (February 3, 2010)

STATE OF VERMONT
DEPARTMENT OF LABOR
Matthew Commo Opinion No. 03-10WC
v. By: Jane Dimotsis, Esq.
Sal Spinosa, Esq.
Stevens Gas Services, Inc. Hearing Officers
For: Patricia Moulton Powden
Commissioner
State File Nos. W-7337 and Z-3648
OPINION AND ORDER
Hearing held in Montpelier on February 27, 2009 and June 17, 2009
Record closed on September 8, 2009
APPEARANCES:
Richard Goldsborough, Esq, for Claimant
Tammy Denton, Esq., for Defendant
ISSUES PRESENTED:
1. What is the appropriate permanent impairment rating for Claimant’s April 13, 2005 low back injury?
2. What is the appropriate permanent impairment rating for Claimant’s June 17, 2005 shoulder injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Curriculum Vitae, Verne Backus, M.D.
Defendant’s Exhibit A: Curriculum Vitae, John Johansson, D.O.
CLAIM:
Permanent partial disability benefits pursuant to 21 V.S.A.§648
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 contained in the Department’s file relating to this claim.
Claimant’s Back Injury
3. On April 13, 2005 Claimant injured his lower back while making a fuel delivery. Defendant accepted the injury as compensable and paid workers’ compensation benefits accordingly.
4. Claimant’s symptoms included right-sided low back and hip pain, with radiation down his right leg. Diagnostic imaging revealed disc herniations on the right at L4-5 and on the left at L5-S1. When his symptoms failed to abate with conservative treatment, in October 2005 Claimant underwent L4-5 disc surgery. Afterwards, he reported to Dr. Krag, his treating surgeon, that with the exception of some residual numbness in his toe, his right leg symptoms had completely resolved.
Claimant’s Shoulder Injury
5. On June 17, 2005, after his April 13, 2005 back injury but before his October 2005 back surgery, Claimant fell down a flight of stairs while at work and injured his right shoulder. Claimant was diagnosed with a torn rotator cuff, which Dr. Slaughterbeck surgically repaired on October 24, 2005. Thereafter, Claimant underwent a course of physical therapy. By May 2006 Dr. Slaughterbeck reported that he had regained full range of motion in his shoulder. The March 2006 physical therapy discharge note reflected the same results.
Permanent Impairment Ratings – Spine
6. At Defendant’s request, in September 2006 Dr. Johansson, an osteopathic physician, evaluated Claimant for the purpose of rating the extent of his permanent impairment relative to both the April 2005 low back injury and the June 2005 shoulder injury. In March 2007, upon referral of his attorney Claimant underwent a second permanency evaluation, this time with Dr. Backus, an occupational medicine specialist.
7. As to Claimant’s low back injury, both doctors determined that Claimant had reached an end medical result as of September 5, 2006, the date of Dr. Johansson’s examination. Using the AMA Guides to the Evaluation of Permanent Impairment, 5th ed. (the “AMA Guides”), both doctors concluded that Claimant fit within DRE Category 3, which provides an impairment range of ten to thirteen percent. According to the AMA Guides, to select the appropriate impairment rating within that range requires an analysis of how the injury has impacted one’s activities of daily living.
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8. Dr. Johansson placed Claimant at the low end of the range and therefore rated him with a 10% whole person impairment referable to his spine. In Dr. Johansson’s opinion, it was inappropriate to assign any additional percentage attributable to the impact on Claimant’s activities of daily living, as at least some of that impact was attributable instead to Claimant’s June 2005 shoulder injury.
9. Dr. Backus disagreed. Unlike Dr. Johansson, he documented Claimant’s responses on both a pain disability index and an impairment impact inventory. From that he concluded that the impact of Claimant’s low back injury on his ability to perform activities of daily living merited a rating at the high end of the scale, or 13% whole person. Dr. Backus also noted that, to the extent that Claimant’s shoulder injury also affected his activities of daily living, that impact was accounted for in the impairment rating for that injury. While he agreed that the impact of an injury on one’s activities of daily living should not be counted twice, neither should it be ignored in the context of a rating for which the AMA Guides dictate that it be considered.
Permanent Impairment Ratings – Shoulder
10. Again, both doctors agree that Claimant reached an end medical result for his June 2005 shoulder injury as of September 5, 2006, the date of Dr. Johansson’s examination. Both also agree that under the AMA Guides, the appropriate impairment rating for this injury depends on the extent of any residual deficit in Claimant’s shoulder range of motion. They disagree as to how best to measure it.
11. According to Dr. Johansson’s range of motion measurements, Claimant was left with a 2% whole person impairment referable to his shoulder injury. Dr. Johansson found corroboration for this rating in Claimant’s medical records, specifically the reports from Dr. Slaughterbeck and the physical therapist indicating that by May 2006 Claimant had regained full range of motion in his shoulder.
12. Dr. Backus reached a different result. According to his measurements Claimant’s shoulder range of motion was significantly more limited than what Dr. Johansson had reported. Dr. Backus’ rating was higher, therefore – 6% whole person.
13. Dr. Backus attributed the difference between his rating and Dr. Johansson’s to a variety of factors. Noting that the AMA Guides require that an impairment rating be based on active, not passive, range of motion, Dr. Backus questioned Dr. Johansson’s reliance on both the March 2006 physical therapy report and Dr. Slaughterbeck’s May 2006 report as corroboration for his findings. Those reports reflected passive, not active, range of motion findings. In addition, Dr. Backus noted that range of motion measurements that are taken shortly after active treatment has concluded, as both the physical therapist’s and Dr. Slaughterbeck’s measurements were, often do not reflect the true extent of a patient’s permanent loss. With the passage of time, additional deficits may become evident.
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14. For his part, Dr. Johansson acknowledged that the AMA Guides require that range of motion be measured actively, not passively. In his formal hearing testimony, Dr. Johansson clarified that he too took active range of motion measurements. Dr. Johansson expressed confidence in both his measurements and his methodology. He was skeptical that Claimant’s range of motion could have decreased to the level that Dr. Backus reported.
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 (September 17, 2003).
3. Applying the above test to the conflicting medical opinions offered in the current claims, I find Dr. Backus’ permanency ratings to be the most persuasive. First, as to Claimant’s low back injury, I find that Dr. Backus’ report was indicative of a more careful and thorough examination. Most notably, consistent with AMA Guides protocol it included an impairment impact inventory from which it was easy to discern why Dr. Backus reached the rating that he did. In contrast, the basis for Dr. Johansson’s rating is less apparent.
4. Similarly, as to Claimant’s shoulder injury I find Dr. Backus’ impairment rating to be better supported than Dr. Johansson’s, and therefore more credible. Again, Dr. Johansson’s report lacked sufficient detail from which to discern his measurement methodology. It is less persuasive as a result.
5. I conclude, therefore, that in accordance with Dr. Backus’ impairment ratings Claimant sustained a 13% whole person impairment referable to his April 2005 low back injury, and a 6% whole person impairment referable to his June 2005 shoulder injury.
6. As Claimant has prevailed on his claim for benefits, he is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit his itemized claim.
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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 13% whole person impairment referable to the spine, commencing on September 5, 2006, with credit for any amounts previously paid and with interest in accordance with 21 V.S.A. §664;
2. Permanent partial disability benefits in accordance with a 6% whole person impairment referable to the shoulder, commencing on September 5, 2006, with credit for any amounts previously paid and with interest in accordance with 21 V.S.A. §664; and
3. Costs and attorney fees in amounts to be established in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 3rd day of February 2010.
_____________________
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.

William Boyd v. Kennametal Inc. (November 10, 2010)

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

William Boyd v. Kennametal Inc. (November 10, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
William Boyd Opinion No. 33-10WC
v. By: Sal Spinosa, Esq.
Hearing Officer
Kennametal, Inc.
For: Valerie Rickert
Acting Commissioner
State File No. S-14574
OPINION AND ORDER
Hearing held in Montpelier, Vermont on July 26, 2010
Record closed on September 1, 2010
APPEARANCES:
Ronald Fox, Esq., for Claimant
Glenn Morgan, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant entitled to permanent total disability benefits as a consequence of his compensable work-related injury?
EXHIBITS:
Joint Exhibit I: Medical and vocational rehabilitation records
Joint Exhibit II: Deposition of Peter Upton, M.D., June 10, 2009
CLAIM:
Permanent total disability benefits pursuant to 21 V.S.A. §644
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his 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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Claimant’s Work Injury
3. Claimant, who is now 42 years old, worked for Defendant as an industrial electrician. On January 31, 2002 he slipped off a ladder. Initially he experienced pain in the right shoulder region. He treated with Dr. Lichtenstein, a family practitioner, and returned to work a week later.
4. Soon thereafter the pain shifted to his lower back and sacrum region. Claimant subsequently was diagnosed with a disc herniation at L4-5 requiring surgery.
5. Defendant accepted Claimant’s injury as compensable and paid workers’ compensation benefits accordingly.
Claimant’s Surgeries
6. On March 20, 2003 Dr. Lon Howard, an orthopedic surgeon, performed an L4-5 fusion. The surgery was performed posteriorly and included the use of metal hardware secured by screws and a bone graft. Claimant was in good post-operative condition and felt relief for six to eight weeks after his surgery.
7. As his activity level increased, however, so did Claimant’s back pain. He described an unbearable band of pain across his lower back, worse in the morning than at night. Claimant judged his back pain to be more intense after the surgery than it had been before, and getting worse. His pain was heightened by sitting, standing, walking and physical therapy. Lying down, massage, hot baths and the use of a back brace provided some pain relief.
8. In April 2004 Claimant consulted with Drs. Ames and Banco, both orthopedic surgeons, about further treatment. Both recommended a second surgery. According to Dr. Banco, Claimant’s first surgery had resulted in a failed fusion. In addition, the hardware screws had loosened, and therefore the supporting hardware would have to be removed and replaced.
9. Orthopedic surgeon Robert Monsey performed Claimant’s second surgery on May 3, 2004. This surgery involved both an anterior re-fusion at L4-5 and a posterior fusion at L5-S1.
10. Claimant saw Dr. Monsey post-operatively for pain around his incisions. Dr. Monsey found nothing abnormal about Claimant’s complaints and prescribed medication and physical treatment.
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11. On February 1, 2005 Claimant saw Dr. Monsey again, this time complaining of back and leg pain worse than prior to his first surgery. Dr. Monsey determined that the fusion was mending appropriately but that Claimant exhibited ongoing pain, psychosocial issues, narcotic pain-killer dependence and functional disability. He noted that Claimant had been out of work for three years and had a 10% chance of ever returning. He explained to Claimant that it was unlikely that he would ever be pain free and discussed further medical options.
12. On May 26, 2005 Dr. Borrazzo, a general surgeon, confirmed the presence of an eventration1 of Claimant’s abdominal wall at site of his anterior surgical incision, causing a protrusion of intra-abdominal contents. Dr. Borrazzo determined that nerve damage from Claimant’s second surgery caused this condition.
13. Dr. Borrazzo performed surgery to repair this condition on June 1, 2005. The surgery, similar to a hernia repair, was followed by ten months of continual draining from four drainage tracts. On December 13, 2006 Dr. Borrazzo performed a further abdominal surgery to debride the wound and promote healing. He followed this with a similar procedure in 2007, as Claimant’s abdominal wound continued to require further surgical attention.
1 An eventration is an abnormal displacement of part or all of an otherwise intact diaphragm into the chest cavity.
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End Medical Result and Permanency Ratings
14. At Defendant’s request, in June 2005 Claimant underwent an independent medical evaluation with Dr. Upton, a neurosurgeon. Dr. Upton reviewed Claimant’s medical records, conducted a physical examination and made the following observations:
• Dr. Upton confirmed that after two back surgeries Claimant was reporting low back pain that was far more severe than what he had reported prior to his first surgery. Virtually any movement, including walking, exercise or physical therapy, exacerbated the pain. Claimant reported that he was able to help out a little around the house, but felt better when lying down. He reported that at times his back pain would shoot into his abdomen and cause pain spasms.
• Dr. Upton noted that due to Claimant’s severe pain and significant use of narcotic medications, he had been referred to the Pain Center at Dartmouth Hitchcock Medical Center to consider the implantation of a morphine pump. The Center was reluctant to perform the procedure and doubted that use of the device would significantly improve Claimant’s pain.
• Dr. Upton reported that Claimant exhibited markedly limited range of motion in his lumbar spine. Attempts to increase Claimant’s range of lumbar flexion produced pain.
• Dr. Upton reported that Claimant was taking a variety of medications, including large dosages of both methadone and dilaudid for pain relief, an anti-inflammatory and a muscle relaxant. Claimant also was taking Cymbalta for anxiety and depression.
15. Noting that Claimant’s pain had not improved despite two fusion surgeries and the use of “enormous” amounts of narcotic medications, and also that it limited him even from participating in physical therapy, Dr. Upton concluded that Claimant had reached an end medical result.
16. At Defendant’s request Dr. Upton saw Claimant again on March 12, 2008. Dr. Upton reconfirmed that Claimant had reached an end medical result. He observed that despite the fact that Claimant’s second surgery had produced an excellent fusion, his back pain still was not relieved. With reference to the AMA Guides to the Evaluation of Permanent Impairment (5th ed.), Dr. Upton assessed Claimant with a 23% whole person impairment referable to his lumbar spine.
17. At his own referral, in April 2010 Claimant underwent a second permanency evaluation, this time with Dr. Gennaro, an orthopedic surgeon. Dr. Gennaro concurred with Dr. Upton’s assessment of a 23% permanent impairment referable to Claimant’s lumbar spine injury. In addition, however, Dr. Gennaro assessed a 10% whole person impairment referable to Claimant’s abdominal condition, which was a consequence of the complications he had suffered following his second fusion surgery. According to Dr. Gennaro, therefore, the combined whole person impairment causally related to Claimant’s work injury was 31%.
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18. With Dr. Upton’s end medical result opinion as support, Defendant terminated Claimant’s temporary disability benefits effective May 18, 2008 and began advancing permanency benefits instead.
Vocational Rehabilitation Efforts
19. Claimant was referred for a vocational rehabilitation entitlement assessment in July 2008. Ken Yeates, a licensed vocational rehabilitation counselor, was assigned to determine whether he might benefit from vocational rehabilitation services.
20. Claimant has a tenth grade education. He was employed as an industrial electrician at the time of his injury, and in that capacity he was capable of evaluating and fixing complicated electrical problems. He is currently unlicensed for failing to maintain the ongoing educational units required.
21. Claimant possesses entry level computer skills. However, due to his pain levels he has difficulty sitting at a computer without leaning on his right arm and elbow. While leaning in this position he is unable to operate a computer with any efficiency. Claimant’s level of functioning also makes it difficult for him to remain active for more than fifteen minutes. His medications impact his ability to concentrate for significant periods of time.
22. After evaluating Claimant’s current function and transferable skills, Mr. Yeates determined that he is not employable in even a part-time position. In support of this conclusion, Mr. Yeates cited numerous factors. Claimant lacks a high school or technical degree and has neither customer service nor office related experience. He has only entry level computer skills. He cannot stand or sit for more than twenty minutes at a time, and takes high dosages of narcotic pain medications. Taken in combination, these factors render Claimant unable to participate in productive training or competitive employment at this time. According to Mr. Yeates, Claimant is incapable of sustaining even home-based employment. I find this conclusion to be credible in all respects.
23. On the basis of Mr. Yeates’ determination that Claimant was unemployable, his vocational rehabilitation file was closed in March 2009.
Claimant’s Work Capacity
24. But for a short period subsequent to his work injury, Claimant has not worked since January 2002.
25. In January 2010 Claimant underwent a functional capacity examination (FCE). The examination lasted five hours, three of which Claimant used to take breaks, lie down and take his medications. After taking his medications, Claimant exhibited difficulty focusing and maintaining his balance. In the end Claimant was crying and could proceed no further. The testing was terminated.
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26. Based on Claimant’s testing, the evaluator concluded that he does not fit into a work capacity category by current standards and does not have sufficient work capacity to engage in gainful employment. Among the evaluator’s specific observations:
• Claimant does have some sedentary abilities, but lacks the ability to sit, handle or endure sedentary work. He could not sit upright for more than one minute and leaned heavily onto his right arm to unweight his back. Claimant’s significant use of narcotics and their consequent effect on decision-making and memory further limited his ability to function safely.
• Claimant fatigued easily. His use of narcotic medications exacerbated his fatigue and reduced his ability to sustain work to no more than a few hours a day, and not every day. This is incompatible with full time work.
• Claimant lacked the core strength or overall endurance to perform material handling for full time work. He had to lie down after the lifting test.
• Claimant’s abdominal scar tissue, combined with his postural adjustments, caused him to twist his trunk. He stood with his trunk shifted to the right but rotated to the left. This made standing difficult. It also impacted Claimant’s balance, which diminished his ability to perform activities while standing.
• Claimant’s preferred positions were sitting, leaning on his right arm or lying down. He could stoop only with his side bent forward and could support his own weight only by using his hands on a support object.
27. In both his 2005 and 2008 examination reports, Dr. Upton also concluded that Claimant had no foreseeable work capacity. He reaffirmed this opinion in his 2009 deposition. Dr. Upton acknowledged that the extent of the pain and associated disability Claimant reported seemed “pretty excessive.” He remarked that the fact that Claimant continued to complain of a wide distribution of pain despite both an apparently solid fusion and “enormous” dosages of narcotic pain medications “didn’t seem to add up very well.” Nevertheless, Dr. Upton testified that he did not necessarily distrust Claimant’s reports of pain. By its very nature, a medical assessment of pain relies principally on the accuracy of what the patient reports, and in that respect it is unavoidably subjective. With that in mind, Dr. Upton maintained his belief that Claimant was permanently and totally disabled.
28. Dr. Gennaro likewise determined that Claimant was permanently incapable of gainful employment.
29. Dr. Lichtenstein, Claimant’s family practitioner, also believed Claimant to be permanently and totally disabled. He reported that Claimant’s life is consumed by pain, that he has only limited ability to exercise and no energy for rehabilitation. Dr. Lichtenstein described Claimant as exhibiting chronic but stable depression and a defeated attitude.
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Claimant’s Current Condition
30. Both Claimant and his wife testified at the formal hearing in this matter as to Claimant’s current symptoms and functional limitations. Their testimony was consistent and credible throughout.
31. Claimant is no longer the active outdoorsman or the household handyman that he once was. Now he either seeks his children’s assistance or proceeds slowly, if at all. Where he once exhibited strength within the home, he is now emotional and prone to crying.
32. Claimant now sleeps fitfully and for long periods. He often awakens feeling like he needs a nap. His memory is poor, his personal hygiene has diminished and he avoids social settings. While he continues to four-wheel, his son often drives and does so carefully and slowly. Claimant’s degree of back pain will determine whether, and for what period of time, he can perform this activity.
33. Claimant used his swimming pool rarely this summer. He only floats and with the aid of a buoying device.
34. Claimant can stand for no more than ten minutes and can sit for hours if positioned in his recliner. He has difficulty walking, often uses a cane and struggles on stairs. When traveling in a car he needs to stop after twenty to forty minutes. He now does little of the driving. He can mow his lawn but does so slowly.
35. Claimant continues to take numerous medications though he is unsure what they are or their dosage. Dr. Lichtenstein, who manages his medications, has reduced his methadone dosage, but increased the dosage of other pain medications due to an increase in shooting pains. Thus, in addition to most of the medications listed in Finding of Fact No. 14 above, Claimant also takes gabapentin for seizures and pain. He also uses medical marijuana and ketamine cream for pain.
36. Claimant continues to draw fluid from his abdominal wound.
37. Claimant described his average day. Shortly after arising he takes his medications and sits in his recliner. The medications “kick in” in the early afternoon. He spends approximately a half an hour daily tending to his outdoor and indoor gardens. He lets his dog out and in. Claimant spends most of his day sitting in his recliner. He performs no heavy work. He is able to manage alone at home when his wife is out.
38. Claimant tries to service his own vehicles, as he did prior to his injury. Occasionally he will use a creeper to get underneath his vehicles, but for the most part he supervises the work of others. Claimant estimates that he works on vehicles for a couple of hours a month.
39. Claimant described his day-to-day pain as “horrific.” It continues to be in his lower spine/pelvic region. He is never pain free. He experiences tight, cramping pain that only his medications can relieve.
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40. During his testimony Claimant leaned noticeably on his right elbow, frequently grimaced in apparent pain and displayed confusion or a lack of memory in response to some questions.
41. Claimant admitted that he had testified before a legislative committee investigating workers’ compensation cases. His testimony did not involve his current claim.
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).
3. The dispute here centers on whether Claimant’s January 2002 work injury has rendered him permanently and totally disabled. Claimant points to all of the medical evidence, which presents largely uniform support for his claim. Claimant finds additional support for his claim in the 2009 vocational rehabilitation workup and the 2010 functional capacity examination, both of which determined that he was unable to sustain gainful employment.
4. Defendant counters with evidence that Claimant is able to perform a variety of household, recreational and maintenance functions that it contends are inconsistent with a claim of permanent total disability. Defendant also asserts that Claimant’s claim relies almost exclusively on his subjective reports of pain, which it argues are not credible.
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5. Under Vermont’s workers’ compensation statute, a claimant is entitled to permanent total disability benefits if he or she suffers one of the injuries enumerated in §644(a), such as total blindness or quadriplegia. In addition, §644(b) provides:
The enumeration in subsection (a) of this section is not exclusive, and, in order to determine disability under this section, the commissioner shall consider other specific characteristics of the claimant, including the claimant’s age, experience, training, education and mental capacity.
6. The workers’ compensation rules provide further guidance. Rule 11.3100 states:
Permanent Total Disability – Odd Lot Doctrine
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 Capacities Evaluation (FCE) should be performed to evaluate the 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.
7. A finding of odd-lot permanent total disability is not to be made lightly. Gaudette v. Norton Brothers, Inc., Opinion No. 49-08WC (December 3, 2008). For that reason, and as Rule 11.3100 makes clear, typically there must be evidence to establish first, what the injured worker’s functional capabilities are, and second, that no viable vocational options exist within those capabilities. Id.; Prescott v. Suburban Propane, Opinion No. 42-09WC (November 2, 2009).
8. Here, I conclude that Claimant is permanently and totally disabled as a consequence of his 2002 work injury. Each component of the record in this case supports that conclusion. Defendant’s arguments to the contrary are unconvincing.
9. The functional capacity examination established that Claimant has a low tolerance for standing and sitting, the latter of which is incompatible with even a sedentary work capacity. His heavy reliance on narcotic pain medications and his pain-focused behaviors further preclude any type of work, sedentary or otherwise. Add to that the contorted manner in which Claimant now carries himself and the positional adjustments he requires to reduce his pain and the conclusion that he lacks a work capacity of any sort is as compelling as it is obvious.
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10. The vocational rehabilitation assessment, which was more focused on Claimant’s education, work experience and related aptitudes in the context of his current occupational options, leads to the same conclusion. Rather than promoting alternatives, Claimant’s educational and work experience are limiting factors. What options exist, even at the entry level, require a level of physical means and focus that Claimant’s condition precludes. Thus, the vocational rehabilitation assessment amplifies Claimant’s unsuitability for regular, gainful employment.
11. Both Drs. Gennaro and Lichtenstein confirmed that Claimant is permanently incapable of re-entering the work force. While Dr. Upton questioned the correlation between Claimant’s subjective reports of pain and limited function and his physical condition, nonetheless he consistently maintained that Claimant has no current work capacity and none for the foreseeable future.
12. Defendant urges that Claimant’s ability to perform a variety of household tasks and recreational activities precludes a finding that he is permanently and totally disabled. I conclude that Claimant’s activities are not inconsistent with a finding of permanent total disability. As reflected both in the functional capacity examination and in Mr. Yeate’s vocational rehabilitation assessment, they do not translate into a viable, sustainable work capacity at any level.
13. I conclude that Claimant has sustained his burden of proving that he is permanently and totally disabled as a consequence of his January 2002 work injury.
14. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $4,370.84 and attorney fees totaling $18,313.50. An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded.
15. Claimant’s claim for attorney fees must be reduced. The amendment to Workers’ Compensation Rule 10.0000, which raised the hourly rate at which attorney fees can be assessed to $145.00, became effective on June 15, 2010. Of the total fees charged, 90 hours were incurred prior to that date, and therefore must be charged at the rate previously in effect, or $90.00 per hour. The remaining 36.3 hours were incurred after June 15, 2010 and properly can be charged at the rate of $145.00 per hour. With that adjustment, the total amount allowable is $13,363.50. I find it appropriate to award Claimant attorney fees in that amount.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Permanent total disability benefits commencing on May 18, 2008 in accordance with 21 V.S.A. §645 (with credit for any permanent partial disability benefits paid to date); and
2. Costs totaling $4,370.84 and attorney fees totaling $13,363.50.
DATED at Montpelier, Vermont this 10th day of November 2010.
_______________________
Valerie Rickert
Acting 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.

Laurel Zeno v. University of Vermont (August 19, 2010)

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Laurel Zeno v. University of Vermont (August 19, 2010)

 

STATE OF VERMONT

DEPARTMENT OF LABOR

 

Laurel Zeno Opinion No. 27-10WC

 

v. By: Phyllis Phillips, Esq.

Hearing Officer

University of Vermont

For: Valerie Rickert

Acting Commissioner

 

State File No. Z-00033

 

RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

 

ATTORNEYS:

 

Christopher McVeigh, Esq., for Claimant

Stephen Ellis, Esq., for Defendant

 

ISSUES PRESENTED:

 

1. Do any genuine issues of material fact exist as to whether Defendant’s May 1,
2008 discontinuance of benefits on end medical result grounds was proper?

 

2. Is Defendant entitled to judgment as a matter of law as to the extent of Claimant’s
permanent impairment, if any, causally related to her June 20, 2007 injury?

 

FINDINGS OF FACT:

 

Considering the facts in the light most favorable to the non-moving party, see, e.g., State v.
Delaney, 157 Vt. 247, 252 (1991), I find the following:

 

1. On June 20, 2007 Claimant suffered a work-related injury when she fell in Defendant’s
parking lot. Subsequently she sought treatment for right knee and left shoulder pain
causally related to her fall.

 

2. Claimant has an extensive prior medical history, including right shoulder surgery in 1998,
left shoulder surgery in 2006 and right knee arthroscopy in 2003. Claimant also suffers
from cerebral palsy on her left side.

 

Medical Evidence as to the Cause, Nature and Extent of Claimant’s Injury

 

3. Since her June 2007 fall Claimant has treated primarily with Dr. Campbell for her right
knee symptoms and with Dr. Macy for her left shoulder symptoms. She also has treated
regularly with Dr. Hageman, her primary care provider, for general health issues.

4. In his office notes, Dr. Campbell has described the etiology of Claimant’s right knee
symptoms as “multifactorial” and consistent with some combination of osteoarthritis,
iliotibial band friction syndrome and tibiofibular joint pain. More recently, in a July 12,
2010 letter to Claimant’s attorney Dr. Campbell stated that the preexisting arthritis in
Claimant’s right knee “was certainly aggravated” by her June 2007 fall.

 

5. As treatment for Claimant’s right knee symptoms, Dr. Campbell has at various times
prescribed injections, physical therapy and Celebrex.

 

6. As for Claimant’s left shoulder complaints, Dr. Macy first addressed these in September
2007. His treatment plan at the time included physical therapy. Claimant participated in
physical therapy from September 2007 through March 2008, at both Dr. Campbell’s and
Dr. Macy’s referral.

 

7. At Defendant’s request, in March 2008 Claimant underwent an independent medical
examination with Dr. Levy. In Dr. Levy’s opinion, “the most probable cause of
[Claimant’s] longstanding widespread pain is degenerative arthritic change in all regions
involved, including both shoulders and knees.” Dr. Levy determined that the June 2007
fall had resulted in a flare-up of Claimant’s “pre-existing problem,” but had not caused
any aggravation in her underlying condition. According to his diagnosis, Claimant had
suffered only a bruised right knee and a soft tissue injury to her left shoulder as a result of
her June 2007 fall at work.

 

8. In Dr. Levy’s opinion, Claimant would have reached an end medical result for her right
knee within 7 to 14 days after her fall, and for her left shoulder “sometime in the fall of
2007 after she did four to six weeks of physical therapy.” As for permanency, Dr. Levy
rated Claimant with a 0% impairment referable to the June 2007 fall.

 

9. With Dr. Levy’s independent medical examination as support, in April 2008 Defendant
denied responsibility for any other injuries Claimant allegedly suffered as a consequence
of her June 2007 fall. It also filed a Notice of Intention to Discontinue Payments (Form
27) as to both temporary disability and medical benefits on the grounds that Claimant had
reached an end medical result for her compensable injuries. The Department approved
Defendant’s discontinuance effective May 2, 2008.

 

10. On May 9, 2008 Claimant filed a Notice and Application for Hearing (Form 6), in which
she sought temporary partial disability benefits, permanent partial disability benefits,
medical benefits and attorney fees on account of her June 2007 fall. Claimant stated the
issues in dispute as: “Whether [Claimant] is at a medical end result; whether the Form 27
is supported by a probability of the evidence; whether [Claimant] is entitled to a gym
membership.”1
1 Claimant appears to have withdrawn her request for a gym membership.
11. Notwithstanding Defendant’s discontinuance, Claimant has continued to treat
sporadically with Dr. Campbell for her persistent right knee discomfort. The medical
records reflect additional physical therapy referrals in both June 2008 and December
2009. Claimant also underwent injections in December 2009 and again in May 2010. In
April 2010 she underwent a bone scan.

 

12. Claimant also has treated on two occasions with Dr. Macy since Defendant’s
discontinuance, once in December 2009 and again in January 2010. The December 2009
office note describes both left and right shoulder pain, but according to Dr. Macy, “at this
point, her right shoulder is more bothersome.” Dr. Macy determined that the left
shoulder could not be repaired surgically. His treatment plan was to obtain a right
shoulder MRI. Dr. Macy reviewed the results of the MRI at Claimant’s January 2010
visit, and prescribed a course of physical therapy for her right shoulder. His office note
does not reflect any further treatment recommendations for Claimant’s left shoulder
discomfort.

 

13. In her December 17, 2007 office note, Dr. Hageman stated her opinion that Claimant’s
previous injuries “were definitely aggravated” by her June 2007 fall. Dr. Hageman also
remarked that Claimant “would likely benefit from continued physical therapy/aqua
therapy” for her left shoulder symptoms. Presumably this was a reference to the therapy
Claimant already was undergoing at Dr. Macy’s referral.

 

Discovery and Disclosure Issues

 

14. In anticipation of the formal hearing in this claim, which previously was scheduled for
October 2009, in July 2009 Defendant filed its final disclosures, in which it identified the
disputed issues as including (1) whether Claimant had reached an end medical result for
her compensable work injury on June 20, 2007; and (2) if yes, whether there was any
resulting permanent impairment.

 

15. Also anticipating the previously scheduled formal hearing, Claimant filed her final
disclosures in October 2009, in which she characterized the issues for determination as
including “the extent of benefits” due her under the Workers’ Compensation Act.
Claimant identified Dr. Campbell as her witness regarding the care and treatment of her
knee injury, and Dr. Macy as her witness regarding the treatment of her left shoulder
injury.

 

16. Initially both parties had included as a disputed issue the question whether Claimant
sustained a compensable work-related injury as a result of her June 20, 2007 fall.
Defendant later conceded that she did, and now characterizes the disputed issues as
involving only the nature and extent of that injury. Defendant has identified Dr. Levy as
its expert witness on these issues. Presumably Dr. Levy will testify in accordance with
the opinions noted in Findings 7 and 8 above.

17. In January 2010 Defendant served expert interrogatories on Claimant. Claimant did not
initially respond, whereupon the hearing officer ordered her to do so no later than May
21, 2010. Claimant notified Defendant by letter on that date that she intended to call Dr.
Campbell to testify regarding her knee condition. Claimant specified that Dr. Campbell
would testify that her current knee condition was the result of her June 20, 2007 fall at
work, and that his testimony would be “consistent with his medical records.”

 

18. The formal hearing now has been rescheduled to October 8, 2010 with final disclosures
due no later than September 10, 2010.

 

19. On July 13, 2010 Claimant filed a “Supplemental Disclosure” with the hearing officer, in
which she named both Dr. Hageman and Dr. Macy as additional expert witnesses whom
she anticipates calling at hearing. Claimant anticipates that Dr. Hageman will testify
“consistent with her medical notes in which she opined that [Claimant’s] June 20, 2007
fall aggravated her left shoulder and right knee conditions.” Claimant anticipates that Dr.
Macy will testify “consistent with his medical records that [Claimant] has had an ongoing
left shoulder condition for which he has recommended physical therapy.”

 

DISCUSSION:

 

1. In order to prevail on a motion for summary judgment, the moving party must show that
there exist no genuine issues of material fact, such that it is entitled to a judgment in its
favor as a matter of law. Samplid Enterprises, Inc v. First Vermont Bank, 165 Vt. 22, 25
(1996). In ruling on such a motion, the non-moving party is entitled to the benefit of all
reasonable doubts and inferences. State v. Delaney, 157 Vt. 247, 252 (1991); Toys, Inc.
v. F.M. Burlington Co., 155 Vt. 44 (1990). Summary judgment is appropriate only when
the facts in question are clear, undisputed or unrefuted. State v. Realty of Vermont, 137
Vt. 425 (1979).

 

2. Here, Defendant contends that Claimant has failed to adduce sufficient evidence to
establish that she had not reached an end medical result for the injuries she sustained in
her June 2007 fall at least by May 2, 2008, the effective date of Defendant’s Form 27
discontinuance. Thus, Defendant argues, it is entitled to summary judgment in its favor
on the question whether its discontinuance was properly supported.

 

3. I cannot agree with Defendant’s characterization of the evidence, particularly as it
pertains to Claimant’s right knee injury. Dr. Campbell’s office notes reflect ongoing,
albeit somewhat sporadic, treatment well beyond May 2008 and as recently as May 2010.
Given his opinion that the June 2007 fall “certainly aggravated” the pre-existing arthritis
in Claimant’s right knee, genuine issues of material fact exist as to whether this treatment
was necessitated by that aggravation. If it was, then Claimant may not have reached an
end medical result as early as Defendant contends. This, therefore, is a factual issue
sufficient to defeat summary judgment.

4. I also must reject Defendant’s assertion that it is entitled to summary judgment on the
question whether Claimant suffered any permanent impairment as a consequence of her
June 2007 fall. Defendant contends that Claimant has not produced any evidence to
negate Dr. Levy’s determination that there was no ratable permanency referable to the
limited injuries he diagnosed. This is true, but it does not follow that summary judgment
on the issue is therefore warranted. At the heart of the parties’ dispute is Claimant’s
assertion that the June 2007 fall caused injuries far more substantial than what Dr. Levy
diagnosed, that her treatment has not yet concluded and that therefore it is premature to
estimate the extent of her permanent impairment. Genuine issues of material fact abound
here, which render summary judgment inappropriate.

 

5. Last, Defendant argues that because Claimant’s “Supplemental Disclosure” of Drs.
Hageman and Macy as witnesses was filed after the deadline for responding to its expert
interrogatories, it should be disregarded. I do not condone in any respect Claimant’s
failure to respond to Defendant’s discovery requests in a complete and timely manner.
Nevertheless, I am mindful of the fact that the hearing officer’s final disclosure deadline
has not yet passed and that there is still ample time for Defendant to prepare for these
witnesses’ appearance prior to the October 8, 2010 formal hearing. Under these
circumstances, I will not grant the relief Defendant seeks.

 

ORDER:

 

Defendant’s Motion for Summary Judgment is hereby DENIED.

 

 

DATED at Montpelier, Vermont this 19th day of August 2010.

 

 

 

 

_______________________

Valerie Rickert

Acting 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.

Robert Brown v. W. T. Martin Plumbing & Heating (April 15, 2010)

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

Robert Brown v. W. T. Martin Plumbing & Heating (April 15, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Robert Brown Opinion No. 14-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
W.T. Martin Plumbing & Heating
For: Patricia Moulton Powden
Commissioner
State File No. Y-52948
OPINION AND ORDER
Hearing held in Montpelier, Vermont on November 25, 2009
Record closed on January 5, 2010
APPEARANCES:
J. Norman O’Connor, Esq., for Claimant
Jeffrey Spencer, Esq., for Defendant
ISSUE PRESENTED:
What is the appropriate permanent impairment rating attributable to Claimant’s August 30, 2006 work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Deposition of Robert Giering, M.D., taken on November 3, 2009
Claimant’s Exhibit 2: Curriculum vitae, Todd Lefkoe, M.D.
Defendant’s Exhibit A: Dr. Wieneke reports, 3/17/08 and 5/20/09
CLAIM:
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
2
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 contained in the Department’s file relating to this claim. Judicial notice also is taken of the AMA Guides to the Evaluation of Permanent Impairment (5th ed.)(the “AMA Guides”).
3. Claimant worked as a master plumber for Defendant, a plumbing contractor. On August 30, 2006 he slipped and fell down a flight of stairs at a job site. Claimant injured his right shoulder in the fall.
4. Claimant suffered a right shoulder rotator cuff tear, which Dr. Nofziger, an orthopedic surgeon, surgically repaired in January 2007. Thereafter, Claimant underwent a course of physical therapy. His recovery was complicated by adhesive capsulitis as well as symptoms indicative of complex regional pain syndrome (CRPS).
5. Complex regional pain syndrome is a disorder of the sympathetic nervous system. One of the hallmark characteristics of the syndrome is burning pain that does not follow a single nerve root distribution but rather is generalized throughout the affected limb. Beyond that general characteristic, the signs and symptoms of CRPS can be grouped into four general categories:

M. C. v. Rock of Ages (July 21, 2006)

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

M. C. v. Rock of Ages (July 21, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
M. C. Opinion No. 32-06WC
By: Margaret A. Mangan
v. Hearing Officer
Rock of Ages For: Thomas W. Douse
Acting Commissioner
State File No. U-07763
APPEARANCES:
Joseph C. Galanes Esq., for the Claimant
Keith J. Kasper Esq., for the Defendant
ISSUE:
The degree of permanent impairment Claimant suffered as a result of his work-related hernia.
CLAIMANT SEEKS:
1. Permanent Partial Disability Benefits pursuant to 21 V.S.A. § 648
2. Attorney fees and costs pursuant to 21 V.S.A. § 678(a)
3. Legal Interest
EXHIBITS:
1. Joint Medical Exhibit
2. Deposition transcripts of Claimant
3. Deposition transcripts of Dr. Kiernan
4. Deposition transcripts of Dr. Brigham
5. Supporting materials from the AMA Guides and Mastering the AMA Guides
2
STATEMENT OF FACTS:
1. Claimant began working for Rock of Ages on April 24, 1989 and works there presently. At all times relevant to this action, Defendant Rock of Ages was Claimant’s “employer” and Claimant Myron Coburn was Defendant’s “employee” within the meaning of the Vermont Workers’ Compensation Act.
2. The relevant facts involving Claimant’s injury that arose during the course of his employment are undisputed.
3. Claimant suffered a first work-related hernia on June 28, 2000. Dr. Kiernan repaired the hernia with stitches on July 14, 2000.
4. In the present claim, the Claimant suffered a work-related injury on November 12, 2003. He was pulling on a very long heavy steel and rubber 3 inch diameter hose that got caught. He yanked on it and noticed pain in the same location as his prior hernia. He reported it to his foreman.
5. Claimant’s family physician referred Claimant to Dr. Kiernan who performed surgery to repair the second hernia in same location as the previous hernia.
6. Dr. Kiernan’s pre-operative note describes this hernia as a “recurrent left inguinal hernia.” The Claimant sustained both a direct hernia—a tear in the floor of the canal and an indirect hernia—material protruding through the ring as a result of this work accident. On January 5, 2004, Dr. Kiernan performed the second hernia repair, using a procedure that included placing a prolene mesh and a hernia prosthesis in the injured area. Dr. Kiernan described this hernia as a “pantaloon hernia” because it was a double hernia.
7. Dr. Kiernan’s post-operative follow up examination on January 20, 2004 indicates that Claimant’s hernia was healing well and that he should be able to return to work when quarry re-opened in the spring. However, Dr. Kiernan did note that Claimant should still “avoid very heavy lifting, i.e. 100#’s.”
8. In response to a request from Defendant insurer for a decision regarding a medical end result, Dr. Kiernan examined Claimant on March 9, 2004. Claimant was released to return to work full duty with a cautionary note to be careful when doing extremely heavy lifting 100-150 pounds. Claimant’s job requires extremely heavy lifting daily. Upon releasing Claimant for full duty, Dr. Kiernan conceded that he did not know how much Claimant was required to lift at work.
3
9. Liberty Mutual Insurance Company is responsible for Defendant’s workers’ compensation to the Claimant. Defendant insurer does not dispute the fact that Claimant suffered a work-related hernia. Defendant insurer paid Claimant all temporary total disability and all reasonable and necessary medical charges incurred as a result of the work-related injury.1
10. Currently, over two years later, Claimant is able to work but continues to experience activity-dependent daily pain while performing his routine tasks at the Rock of Ages quarry. When questioned during his deposition about Claimant’s continued pain, Dr. Kiernan averred that patients who undergo a mesh repair generally have some degree of discomfort during certain activities and some of Claimant’s discomfort may be due to a “nerve that comes through that area called the ilioinguinal nerve, and it runs right underneath the external oblique fascia …” and “An ilioinguinal nerve can cause discomfort whether you sew it or use mesh.”
11. Dr. Kiernan’s March 9, 2004 final examination did not show any evidence of hernia recurrence on physical examination prior to Claimant’s return to work.
12. Defendant did not investigate whether Claimant suffered permanent impairment as a result of his work-related hernia, when, according to Dr. Kiernan, Claimant reached a medical end result.2 Defendant insurer maintains that Dr. Kiernan’s March 9, 1994 examination qualifies both for a medical end result and for a permanency rating. While Dr. Kiernan’s final examination successfully establishes a medical end result, it fails to meet the requirements of a permanent impairment rating using the AMA Guides, which Dr. Kiernan did not do.
13. Claimant’s counsel requested an IME, which was performed by Dr. Fenton on August 3, 2005. Dr. Fenton reported Claimant’s experience of discomfort when he does heavy lifting as “significant pain and dysfunction that lasts around 1.5 days. If he doesn’t do any heavy lifting he has no pain, only the occasional prickly sensation.” Using the AMA Guides Fifth Edition, Table 6.9, Dr. Fenton assigned a 9% permanent impairment rating for the Claimant’s injury “since he has to avoid heavy lifting, and surgical findings were of true hernia mass.”
14. Pursuant to an interim order of December 12, 2005, Defendant began paying permanency benefits retroactive to the August 3, 2005 date of Dr. Fenton’s permanency evaluation.
1 Pursuant to 21 V.S.A. §§ 662(a) and Worker’s Compensation Rule 17.0000 Compensation Agreements—Temporary Total Disability Benefits (Form 21).
2 Worker’s Compensation Rule 18.11 requires that “The employer (insurer) shall take action necessary to determine whether an employee has any permanent impairment as a result of the work injury at such time as the employee reaches a medical end result.”
4
15. At the request of Defendant’s counsel, Dr. Brigham reviewed Claimant’s medical records on January 24, 2006, and rendered a permanent impairment rating of 0%. Dr. Brigham disagreed with Dr. Fenton’s impairment rating of 9%, because, in his opinion, Dr. Fenton did not properly apply AMA Guides; but he acknowledged that Dr. Fenton did put Claimant into the right categories and class under the guidelines. Dr. Brigham also supported his 0% permanent impairment rating by noting that Claimant’s surgeon, Dr. Kiernan, set no restriction on lifting outside of “what would be normally reasonable for any individual.”
16. After paying 2/3 of Claimant’s 9% permanent partial disability benefits, the carrier filed and this Department approved an Employer’s Notice of Intention to Discontinue Payments (Form 27) effective on February 2, 2006. The Form 27 included as evidence Dr. Brigham’s 0% permanent impairment rating.
17. Dr. Brigham used medical records from Dr. Kiernan’s March 9, 2004 examination and also the IME conducted by Dr. Fenton on August 3, 2005. He established a 0% permanent impairment rating because the medical records contained no evidence of a postoperative palpable defect. When asked about Claimant’s pain, Dr. Brigham maintained that there was no permanent impairment resulting from the successful hernia surgery and, he suggested using chapter 18 of the AMA guidelines, which allow up to 3% maximum impairment of the whole person, based on the extent of patient’s pain—rather than on impairment. To establish his permanent impairment rating of Claimant, Dr. Brigham relied solely upon medical records. Dr. Brigham did not speak with Claimant, conduct a physical examination of Claimant, or read Claimant’s deposition testimony. Dr. Brigham did not address whether Claimant experienced any limitations affecting his activities of daily life.
18. Claimant has a bulge at the surgical site. He experiences regular discomfort at the hernia site. He is in pain every time he picks up something either at work lifting drilling equipment or at home lifting his thirty-two pound, three-year old grandson. Claimant has modified his daily routines at work due to the pain he experiences while lifting. He now leans the drill bits in a standing position rather than laying them down to avoid any extra lifting. Claimant stopped performing regular activities of daily living (ADL) due to discomfort from the second hernia surgery. He tries to be careful about what he does outside of work because he “just doesn’t want to deal with the pain.” For example, Claimant’s wife brings in the groceries and takes care of all the cleaning; Claimant does not shovel snow or dirt in the garden anymore because that too irritates the hernia site. Another example of Claimant’s inability to perform normal activities is that he no longer maintains and repairs the family cars. Claimant acknowledged a regular pattern of reoccurring activity-related pain that he rated at a seven, on a scale from one to ten.
19. Both parties agreed to resolve this matter on the papers in support of their respective positions: they submitted briefs, deposition transcripts, and medical records to the Department.
5
CONCLUSIONS OF LAW:
1. In a worker’s compensation claim, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, Morse Co., 123 Vt. 161 (1962). The claimant must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and employment. Egbert v. The Book Press, 144 Vt. 367 (1984).
2. Claimant has established a work-related injury. At issue is the degree to which he is entitled to permanency benefits. The conclusions of the two experts, Dr. Fenton for the Claimant and Dr. Brigham for the Defendant, are sharply divided with Dr. Fenton finding a permanency impairment of 9% of whole person and Dr. Brigham finding no permanency rating. A closer look at the record indicates that the carrier paid 2/3 of the 9% permanency rating before discontinuing payment. Thus, the percentage in controversy is really the final 3% of the permanency rating of 9%.
3. Both experts, Drs. Fenton and Brigham rely on AMA Guides, Chapter 6, Table 6.9, Fifth Edition p.136, for their opinions. Table 6.9 describes three classes of hernia-related impairments, with permanent whole person ratings that range from 0 to 30%. Each class requires a “palpable defect in the supporting structures of the abdominal wall.” In addition:
• Class 1, with a 0% to 9% impairment, requires the palpable defect and:
a “sight protrusion at the site of defect with increased abdominal pressure,
readily reducible”
or
occasional mild discomfort at site of defect, but not precluding normal
activity.”
• Class 2, with a 10% to 19% rating, requires the palpable defect and:
“frequent or persistent protrusion at site of defect with increased abdominal
pressure, manually reducible”
or
“frequent discomfort, precluding heavy lifting, but not hampering normal
activity.”
The table does not distinguish between pre- and post-operative status.
6
4. Here, Claimant has suffered a work-related hernia. Thus, he satisfies this Department’s previous finding in Knapp-Bowen that “A hernia is a defect. Because it is undisputed that Claimant had a work-related hernia, the threshold criterion for all three classes in Table 7 ‘palpable defect in the supporting structures of the abdominal wall’ has been met” and that once a defect is determined the question arises as to whether the Claimant’s symptoms put him in any of the three classes in Table 6.9 of the AMA Guides.3 Erin Knapp-Bowen v. Equinox Terrace, Op. No. 4-98WC (1998). The AMA Guides example 6-29 shows that an individual is assigned a 0% rating when there is “no significant risk of complications and no limit in ability to perform activities of daily living.” Dr. Fenton’s finding that Claimant is eligible for a rating higher than the 0% found by Dr. Brigham is supported by Claimant’s testimony because his activities of daily living are curtailed; evidenced by his discomfort when lifting his three-year old grandson, that his wife carries in the groceries, his inability to shovel snow or dirt, and that he is no longer able to maintain and repair the family cars.
5. Dr. Fenton’s August 4, 2005 IME noted that Claimant does not experience significant pain and dysfunction if he does not do any heavy lifting but that he still has an occasional prickly sensation. Claimant’s surgeon, Dr. Kiernan, explained that individuals who have received a prolene mesh repair for a hernia commonly experience the occasional prickly sensation because the prolene mesh does not stretch the way skin does. Dr. Kiernan also asserted that Claimant’s pain might be the result of irritation to the ilioinguinal nerve. Either of these explanations indicates that Claimant is impaired due to his hernia surgery. But, Dr. Brigham did not read either Drs. Kiernan and Fenton’s nor Claimant’s depositions, instead of addressing Dr. Fenton’s statement that Claimant suffered “significant pain and dysfunction” in regard to the AMA Guides, Dr. Brigham recommended that Claimant be rated according to Table 18 for pain—rather Table 6.9 for impairment.4
6. Dr. Brigham’s 0% impairment rating is incompatible with the AMA companion edition to the AMA Guides, which is published to assist physicians in applying the Guides, as indicated in Example 6-29 of the AMA Guides Fifth Edition, according to the Master the AMA Guides, “an uncomplicated hernia that does not limit the ability to perform ADL is given a 0% WPI rating.” Fifth Edition, Chapter 6.6, p.81.
3 Table 7 in the 4th Edition of the AMA Guides is now Table 6.9 in the current 5th Edition of the AMA Guides.
4According to the AMA Guides Glossary, impairment is the loss of, the loss of the use of, or derangement of a body part, function or system.
7
7. Dr. Brigham disputes Dr. Fenton’s 9% permanency rating as inaccurate because Dr. Fenton based his finding on Claimant’s subjective experience of pain. However, Dr. Brigham does not mention that the AMA Guides Fifth Edition, p. 2 states that, “Although the Guides emphasize objective assessment, subjective symptoms are included within the diagnostic criteria.” Dr. Brigham also interprets the AMA Guides, Table 6.9 Class 1 to require as a threshold that Claimant have a “palpable defect in the supporting structure of the abdominal wall.” Despite Dr. Brigham’s unfavorable opinion and regardless of Dr. Fenton’s failure to use language that easily translates his 9% rating into the language of the AMA Guides, his substantive statements, Claimant’s testimony, and case precedent support a 9% rating.
8. The fundamental difference between the opinions, which the defense argues is dispositive, rests upon differing interpretations of how to apply the AMA Guides. Dr. Fenton based his opinion on Claimant’s need to avoid heavy lifting and surgical findings of a “true hernia mass.” Thus, according to Erin Knapp-Bowen v. Equinox Terrace, Claimant is eligible for a permanency rating from 0-10% depending on the degree of protrusion, discomfort, or limitation in activities. Op. No. 4-98WC (1998).
9. The Department applied Knapp-Bowen to the facts of Mason Estabrook v. New England Precision & USF&G Insurance, Op. No. 10-00WC (2000) and found that Mr. Estabrook had suffered an undisputed work-related hernia that “if upon physical examination claimant has resulting frequent discomfort, precluding heavy lifting but not hampering normal activity, his permanent impairment must result in at least a Class 2 impairment according to Table 6.9 of the AMA Guides.” Mr. Estabrook’s treating physician found an abdominal wall defect during surgery and repaired it using prolene mesh. Similiarly, here, Dr. Kiernan found an abdominal wall defect, a direct and indirect double hernia, in Claimant’s abdominal wall, which he repaired using prolene mesh.
10. In Estabrook, this Department relied on expert medical interpretation of the AMA Guides that determined an impairment “is best understood as a residual observable or otherwise identifiable abnormality following an injury or illness” and that a rating greater than zero depended upon “the impact of the residual abnormalities on the individual’s ADL, as they are listed according to the AMA Guides, and on the degree to which an individual’s capacity to carry out daily activities such as those listed on page 317 is diminished.”5 Op. No. 10-00WC (2000). Here, Claimant continues to suffer with residual signs and symptoms two years following his surgically repaired hernia. Therefore, he has an impairment. Furthermore, Claimant does have limited ability to perform ADL, thus, he is eligible for a higher WPI rating.
11. Dr. Fenton rated Claimant according to the Class 1 scale because Claimant experiences “mild discomfort at the site of the defect”—where the prolene mesh is located, which places Claimant in Class 1. Additionally, Claimant experiences frequent discomfort when lifting, which places Claimant in Class 2. But, Dr. Fenton did not place Claimant
5 AMA Guides, p. 317 which list ADL in the Fourth Edition is now listed in Chapter 1, p.7. Relevant ADL include vigorous activities such as lifting heavy objects, carrying groceries, moving a table, or sports like playing golf.
8
in Class 2 because, unlike Mr. Estabrook who was rated at Class 2, it does not preclude Claimant from heavy lifting, despite Claimant’s experience of activity-related pain on a daily basis, which he chooses to endure in order to continue working at the Rock of Ages quarry. Unlike Mr. Estabrook, Claimant’s daily life activities are, however, curtailed due to discomfort resulting from his hernia repair, thus, Dr. Fenton correctly placed Claimant in the high end of the Class 1 permanent impairment rating, at 9%.
12. Dr. Brigham is undisputedly a qualified expert and author on applying the AMA Guides. However, Dr. Brigham’s application of Table 6.9 of the AMA Guide, in this instance, is contrary to precedent set by this Department in Knapp-Bowen and Estabrook.
13. The credible evidence is also contrary to Dr. Brigham’s conclusion that there was no palpable mass: Claimant’s description of a bulge at the surgical site and Dr. Fenton’s report of a surgical finding of a mass.
14. Dr. Brigham did not speak with Claimant, conduct a physical examination of Claimant, or read Claimant’s deposition testimony. Dr. Brigham uses a formulaic approach to apply the AMA Guides in an effort to standardize their national application but, in so doing, he neglects to take into account Claimant’s credible testimony, evidencing a clear diminution in the quality of his daily life outside of work, and he failed to apply the AMA Guides according to his own standards, which require a physical examination to determine whether the Claimant has a palpable defect.
15. Therefore, based upon this Department’s precedent in Knapp-Bowen, Dr. Fenton’s IME, and Claimant’s credible testimony, the most probable premise is that Claimant sustained a 9% permanent impairment.
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ATTORNEY’S FEES AND COSTS:
16. Attorney’s Fees and Costs: Pursuant to 21 V.S.A. §678, Claimant’s entitlement to reasonable and necessary cost is a mater of law; his right to attorney’s fees is a matter of discretion. Morriseau v. Legac, 123 Vt. 70 (1962). See Lowell v. Rutland Area Visiting Nurses Assoc., Op. No. 42-99WC (1999).
ORDER:
WHEREFORE, it is hereby ordered that Defendants pay Claimant:
1. Permanent partial disability benefits based on a 9% whole person impairment;
2. Interest at the statutory rate from August 3, 2005 to the date of payment;
3. Costs of litigation totaling $875.94;
4. Attorney’s fees equaling 20% of the award not to exceed $6,000.
Dated at Montpelier, Vermont this 21st day of July 2006.
____________________________
Thomas W. Douse
Acting 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 (January 2, 2007)

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

S. C. v. Barre Supervisory Union School (January 2, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
S. C. Opinion No. 53-06WC
By: Margaret A. Mangan
v. Hearing Officer
Barre Supervisory Union School For: Patricia Moulton Powden
Commissioner
State File No. T-11595
Hearing held in Montpelier on October 3 and 4, 2006
Record closed on November 9, 2006
APPEARANCES:
Steven P. Robinson, Esq. and Jennifer Ciarlo Pacholek, Esq., for the Claimant
Andrew C. Boxer, Esq., for the Defendant
ISSUES:
1. Is Claimant permanently and totally disabled as a result of a work related injury?
2. Are Claimant’s current symptoms, medications, and treatment related to and required by her original work related injury?
3. Does Claimant have any permanent partial impairment?
EXHIBITS:
Claimant:
1. Dr. Peyser’s deposition
2. Employment Records
Defendant:
A. Dr. Ciongoli deposition
B. Letters of reference (2)
C. Articles
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FINDINGS OF FACT:
1. Claimant was an employee and Barre Supervisory Union her employer within the Vermont Workers’ Compensation Act at times relevant to this action.
2. Claimant worked as third and fourth grade teacher in the Barre schools for thirty-one years. At the time of her injury on January 8, 2003, she was in good physical health, without any arm, back or head injuries. She was teaching fourth grade at the time.
3. The injury giving rise to this claim occurred on January 8, 2003 when Claimant fell from a chair and hit her head. She had just taken her students to the gym for physical education, and then walked into a room to make a phone call. As she sat down and reached for the phone, the chair collapsed. Claimant hit her head on a shelf. The next thing she remembers is lying on the floor with her head stinging. As she tried to stand up, her legs wobbled.
4. The school principal took Claimant to Occupational Health where she was treated and released. Claimant went home and slept. Her attempt to return to work later in the week was unsuccessful.
5. A January 14, 2003 CT scan was normal.
6. An EEG showed minimal changes consistent with post concussion syndrome.
7. A February 2003 MRI showed mild cerebral atrophy, out of proportion with Claimant’s age and small vessel disease.
8. Claimant began to have severe headaches. She did not return to work for the rest of the semester.
9. Shortly after the head injury, Dr. Kenneth Ciongoli, a neurologist began treating her. From her history he determined that she had a coup (same side) and contracoup (opposite side) injuries to her head. Since she hit the back of the head, the symptoms from that part of her brain resulted in visual changes and abnormal sensations; the contracoup injury to front part of her head gave her problems with thinking and memory. He noted a bump on her head and diagnosed post concussion syndrome. Claimant had difficulty completing sentences and maintaining a line of thought. She had headaches. Small vessel disease was noted on cerebral testing, but Dr. Ciongoli did not find it significant.
10. In June 2003 Claimant saw Dr. Fries who diagnosed post concussion syndrome. He found a causal connection between the work accident and her injuries. Dr. Fries determined that her cognitive deficits were particularly stubborn, though genuine. At that time, she had not reached medical end result.
11. In July 2003, Dr. Ciongoli noted that Claimant was 90% improved from her work injury. He cleared her to work on a trial basis.
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12. In October 2003, Dr. Ciongoli noted that Claimant’s examination was normal, although subjective complaints persisted.
13. At the start of the next academic year in late summer 2003, Claimant attended a few in service days and began teaching part-time in the mornings. Classrooms at the time were separated only by partitions.
14. In the afternoons, Claimant went home to rest. After about one month, she got behind in correcting papers and had trouble focusing during a lesson. She received two negative evaluations, a stark contrast with years of positive evaluations. Her contract was terminated.
15. In the ten years before the injury at issue, Claimant sought medical care for sleeping problems, anxiety, stress, fatigue, exhaustion, inability to focus, poor memory, attention span problems, headaches, word retrieval problems, depression and confusion.
16. Since the injury, she has complained of similar symptoms. She complains that the headaches are daily and debilitating. The difference is that she worked with the symptoms before the injury but is not working now.
Expert Opinions
Dr. Preis
17. Dr. Preis is a psychiatrist who has treated Claimant since 1992 for bipolar disorder, temporal lobe epilepsy and mild attention deficit disorder (ADD).
18. Dr. Preis noted that Claimant had adapted well to the mild ADD, compensating by being organized and taking frequent notes. The conditions Dr.Preis had been treating did not keep Claimant from working. However, Claimant often complained of memory problems at school in the 1993-94 academic year. At that time, Claimant stopped driving because she thought her problems with focus would make her a danger on the road.
19. In 1994 Dr. Preis documented Claimant’s memories of early childhood abuse. Claimant had trouble sleeping and showed signs of depression. Three years later, she was complaining of headaches and visual distortion.
20. Over the years, Dr. Preis worked with Claimant to change and add medications and titrate dosages.
21. Although Dr. Preis agreed that Claimant had the same symptoms before and after the accident, she attributes the current symptoms to the work related head injury because she saw a dramatic change in these cognitive processes. She determined that Claimant is unable to do the multitasking necessary for teaching or for driving a car. Further, she opined that Claimant is unable to work because of debilitating headaches.
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Dr. Ciongoli
22. Dr. Ciongoli treated Claimant and offered opinions on causation. Based on Claimant’s progress and normal objective testing, he was surprised by subjective complaints that she had not recovered from her head injury by the fall of 2003. He had never seen a patient with such a small degree of trauma suffer from the degree of disability she is claiming.
23. Dr. Ciongoli opined that Claimant’s work injury combined with her preexisting condition make it impossible for her to cope and resume the life she had before the injury. He believes she has reached medical end result and is unlikely to improve enough to return to work.
Dr. William Farrell
24. Dr. Farrell, a psychologist, conducted a Psychological IME on Claimant on June 3, 2005, although he did not testify at hearing. Dr. Farrell opined that Claimant has had an unexpectedly protracted post concussion syndrome. In his opinion, she is unable to perform duties of her usual occupation as a full time teacher and is not likely to ever be able to resume full time gainful employment.
25. Dr. Farrell assigned Claimant with a 26 to 32% permanent partial impairment.
Dr. Frederick Fries
26. Dr. Fries noted that some post concussion syndromes take a year or more to resolve. As noted above, he diagnosed a stubborn post concussion syndrome in 2003 when he thought she had not yet reached medical end result. At a second evaluation June 23, 2004, he made the same diagnosis and causal connection. He thought she had improved 60% but was not yet ready to resume teaching duties.
Dr. Janis Peyser
27. Dr. Peyser saw Claimant on a referral from Dr. Ciongoli to perform neuropsychological battery.
28. Dr. Peyser concluded that Claimant had difficulty with some tasks of attention, particularly with arithmetic. She opined that variable attention may hamper her ability to take in new information. However, the testing also revealed that Claimant’s retention was intact, and that she had no other cognitive deficits.
29. Dr. Peyser observed that symptoms are always on the forefront of Claimant’s mind. Such a focus prevents her from resolving the problems. In Dr. Peyser’s opinion, there is a psychological overlay to Claimant’s symptoms that contributes to her problems beyond what the head injury caused.
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30. Dr. Peyser does not expect a long-term impairment in this case. She expects a full recovery. She concluded that Claimant’s concussion did not cause any psychological deficits, but may have spawned a psychological reaction. She has no opinion as to whether the accident caused neuropsychological deficits.
31. Based on neuropsychological testing, Dr. Peyser opined that Claimant is capable of some form of work..
Dr. Nancy Hebben
32. Dr. Hebben conducted a neuropsychological evaluation of Claimant on March 24, 2006.
33. Based on the records, Dr. Hebben opined that Claimant did not suffer a significant traumatic brain injury and, as a result, is not expected to have permanent cognitive changes.
34. In addition, Dr. Hebben noted that Claimant has persistently complained of subjective symptoms, behavior that in general occurs in those with pre-existing psychiatric problems, poor general health, comorbid problems such as depression, chronic pain, and protracted litigation.
35. Dr. Hebben assessed Claimant’s performance during Dr. Peyser’s 2004 testing as representing her minimum level of functioning.
36. Testing Dr. Hebben conducted with Claimant did not reveal attention problems. Acquisition of new information improved compared with prior testing. Declines in other areas according to Dr. Hebben can be attributed to Claimant’s small cell vessel disease, not to a head injury in 2003.
37. Based on her review of records, testing and interview, Dr. Hebben concluded that Claimant’s persistent symptoms are related to some factor or factors unrelated to a head injury. The other factors include sleep apnea, Undifferentiated Somatoform Disorder, and/or possible progression of pre-existing small vessel disease.
38. According to Dr. Hebben, Claimant has no ongoing cognitive or psychiatric injury related to her fall. Any disruption she had was mild and temporary. She could have returned to work. She has no permanent impairment.
Vocational Rehabilitation
39. Laurie Langelier, vocational rehabilitation counselor, worked with Claimant after the injury. She developed an approved plan that included a gradual return to work, starting with a volunteer job. Claimant tried to volunteer at the Barre Town Library and at Washington County Mental Health, but found that her symptoms increased. The attempts were considered failures. Based on Dr. Ciongoli’s opinion that Claimant could not return to work, Ms. Langelier told the Claimant that she had no other options for her. Therefore, the VR file was closed in April 2005.
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40. Fran Plaisted, vocational rehabilitation counselor, provided a forensic vocational opinion in this case on April 28, 2006.
41. Ms. Plaisted identified four areas of function: 1) physical; 2) cognitive; 3) psychological; 4) subjective. Claimant has no physical limitations as a result of her 2003 head injury. She has a light duty work capacity as determined by her work history. Claimant has no cognitive limitations that prevent her from working, based on assessments by Dr. Peyser and Dr. Hebben. Next, Ms. Plaisted concluded that Claimant does not have psychological limitations that would prevent her from working. Although it is clear that Claimant had psychological problems before and after the fall, they are problems well controlled with medications. Finally, Ms Plaisted opined that Claimant has many subjective complaints of pain, yet no one has said that the pain prevents her from working. Despite the complaints of headache, Claimant was able to complete a full day of testing.
42. In Ms. Plaisted’s opinion, Claimant’s return to work attempts were unrealistic. Classrooms were separated by partitions, not traditional walls, increasing the distractions for Claimant and making it more difficult for her to work. When she was taken out of work, she had not been given the option of accommodations that would have allowed a successful return to work.
43. Ms. Plaisted criticized the vocational rehabilitation plan because it was not implemented properly. As such, it was not surprising that Claimant did not follow the plan and withdrew without obtaining a part-time job. Since then she has not tried to find a job or even continue with volunteer work.
44. In Ms. Plaisted’s opinion, a counselor should have tried to find a teaching job Claimant could perform. Schools where class size is smaller and where there are fewer distractions may be a better setting than the Barre schools.
45. The first level of service should have been to return Claimant to a similar job, perhaps with a different employer with modifications. If that were not successful, the next level of service would be to explore work in a different occupation.
46. In short, Ms. Plaisted opined that VR services had been closed prematurely in this case based on Claimant’s subjective belief that she could not work. Based on all the records, however, it is clear that Claimant is capable of gainful employment.
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).
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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. 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)).
4. On the issue of causation, Claimant has prevailed. The convincing medical evidence from Doctors Ciongoli, Peyser, Fries Farrell, Preis and Hebben combine to form in the mind of this trier a conclusion that Claimant’s work related fall caused a concussion that has some lingering effects, when combined with her preexisting conditions. See Jackson v. True Temper Corp., 151 Vt. 592, 595-96 (1989) (employer for seizures brought on by drinking alcohol where sawmill injury aggravated or accelerated claimant’s preexisting alcoholism).
5. Next, is the question whether Claimant is capable of gainful employment, or as she alleges, she is permanently and totally disabled, considering her “age, experience, training, education and mental capacity.” 21 V.S.A. § 644(b).
6. Claimant has not met her burden on this issue. Even Dr. Preis conceded that she may be able to return to work. Unfortunately, VR services were suspended prematurely. It may be that the passage of time has allowed Claimant’s stubborn post concussion syndrome to resolve further and aided Claimant in the process. Claimant has a strong academic history, decades of professional work and an engaging personality. VR services must be resumed to help her return to work.
7. Her PTD claim fails on this record.
8. Because the only PPD rating in the record is from Dr. Farrell who was hired by the Defendant, Claimant must be paid the permanency he assessed.
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ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law:
• Claimant is awarded PPD based on Dr. Farrell’s rating
• The claim for permanent total disability is DENIED.
Dated at Montpelier, Vermont this 2nd day of January 2007.
________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

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

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

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.

H. K. v. Woodridge Nursing Home (January 16, 2007)

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

H. K. v. Woodridge Nursing Home (January 16, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
H. K. Opinion No. 01-07WC
By: Margaret A. Mangan
v. Hearing Officer
Woodridge Nursing Home For: Patricia Moulton Powden
Commissioner
State File No. U-50905
Hearing held in Montpelier on October 31, 2006
Record closed on November 20, 2006
APPEARANCES:
Heidi S. Groff, Esq., for the Claimant
Keith J. Kasper, Esq., for the Defendant
ISSUES:
1. What is Claimant’s current diagnosis? Is it work related? Are the alleged right upper extremity complaints and bilateral lower extremity complaints related to her work related injury?
2. Is Claimant entitled to any permanent partial disability benefits for her work-related right wrist fracture and carpal tunnel syndrome? If so, what is the rating?
EXHIBITS:
Joint Exhibit I: Medical Records
Joint Exhibit II: Dr. Mathew’s deposition transcript
Claimant’s Exhibit 1: Dr. Matthew’s Curriculum Vitae
Defendant’s Exhibit A: Dr. Gennaro’s Curriculum Vitae
Defendant’s Exhibit B: Dr. Pulde’s Curriculum Vitae
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STIPULATION
1. On November 11, 2003, Claimant fell and sustained a right wrist fracture.
2. On November 11, 2203 Woodridge Nursing Home was covered by a workers’ compensation insurance policy issued by Liberty Mutual Insurance Company.
3. Liberty Mutual accepted the claim for a right wrist fracture and paid for medical bills associated with that claim.
4. Claimant also had preexisting bilateral carpal tunnel syndrome which was aggravated on the right sided. Claimant underwent right carpal tunnel surgery in June 2004.
5. On November 11, 2003, Claimant’s average weekly wage was $131.81, resulting in an initial compensation rate of $121.73.
FINDINGS OF FACT:
1. Helen Kennett became Helen Garneau in July 2006 when her divorce became final.
2. Claimant began working as a Food Service Worker at the Woodridge Nursing Home in June 2002. She worked forty hours every two weeks, washing pots and pans, doing assembly line work, and delivering food carts.
3. Claimant has been receiving social security benefits since 1996 for unrelated reasons, but worked despite the disability.
4. Claimant has diabetes that is treated with diet and medication, but not insulin.
5. John Matthew, M.D. has treated Claimant for twenty-five years.
6. Nerve conduction studies confirm, and all physicians involved in this case agree, that Claimant has diabetic neuropathy, a condition that affects the nerves in the extremities in many who have diabetes. Symptoms typically are lack of sensation or pain. Christopher Merriam, M.D., an orthopedist, documented the condition in October 2000. Dr. Matthew has treated Claimant for neuropathy since 2003.
7. In July of 2003, Christopher Bean, M.D., an orthopedic surgeon with expertise in hands, noted that Claimant had pain in her left hand when holding things.
8. In October and November 2003, Dr. Matthew noted that Claimant had low back and leg pain. An epidural injection to treat the pain was planned. At that time, Claimant was out of work for several weeks due to pain. Also in the fall of 2003, a physical therapist note indicated that Claimant had increased pain and decreased strength in her right foot.
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9. On November 11, 2003, Claimant was working when she tripped and hit her head and right wrist, fracturing the wrist. After a period out of work for treatment, Claimant returned to full time work mid May 2004.
10. In January 2004, Stephanie Landvater, M.D., the orthopedic surgeon who treated Claimant’s wrist fracture, first noted increased sensitivities suggesting an RSD (Regional Sympathetic Dystrophy) diagnosis.
11. Dr. Matthew diagnosed Claimant with diabetic neuropathy and with RSD; a chronic pain condition that he opined was caused by her work related injury. RSD is also called Complex Regional Pain Syndrome (CRPS).
12. RSD is a pain condition that comes on suddenly after an acute injury. In this case, the pain followed the wrist fracture and carpal tunnel surgery, both work related. Throbbing pain is characteristic as is exquisite sensitivity to touch, symptoms Dr. Matthew noted with Claimant.
13. As a consequence of that injury, she developed carpal tunnel syndrome in her right upper extremity that was surgically treated. On June 11, 2004, Dr. Landvater performed carpal tunnel surgery.
14. Sometime after the surgery, Claimant developed pain in her left hand and her feet.
15. Claimant’s employment with Defendant ended in October 2005 for reasons unrelated to this action.
16. Claimant now works fulltime at Project Independence, helping participants with meals and hygiene.
17. In support of the RSD diagnosis, Dr. Matthew noted that Claimant presents with allodynia, an exquisite sensitivity to light touch. In August of 2005, he specifically noted that the top of her foot prickled terribly; toes and the top of her foot were sensitive to touch; toes and fingers were shiny and swollen. Dr. Matthew opined that neither carpal tunnel syndrome nor diabetic neuropathy could explain the findings in her hands.
18. In response to the fact that Claimant returned to work after the development of RSD, Dr. Matthew noted that one theory for the treatment of RSD is to have the patient work through the pain.
19. At various times in the treatment process since her work related injury, Dr. Gennaro, Dr. Bean and Dr. Matthew have all suggested that RSD might be a diagnosis appropriate for this patient.
20. Victor Gennaro, D.O. is an orthopedic surgeon who based his initial impression of RSD on information available to him at the time of his September 15, 2004 examination: asymmetry between her hands; swelling in her right hand, fingers and wrist; vasomotor
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changes; skin color changes; hypersensitivity; restricted passive range of motion; and smooth, non-elastic skin texture.
21. Two months later, on November 18, 2004, Dr. Gennaro modified his original opinion regarding RSD. He determined that Claimant did not meet all of the criteria necessary for the RSD diagnosis, that he was unsure if she had RSD or vasomotor instability.
22. On January 19, 2006, Dr. Gennaro issued a third report after he had reviewed recent testing results and many medical records unavailable to him at the time of the earlier reports. Based on results of a bone scan and information from a pain management specialist, he determined that Claimant did not have RSD. He attributed her symptoms to diabetic neuropathy, and Raynaud’s syndrome.
23. George White, M.D., an occupational medicine expert, opined that Claimant’s preexisting right-sided carpal tunnel syndrome was aggravated by her work related wrist fracture. He assigned an 11% permanent partial impairment for the work related injury. However, Dr. White did not assign a permanency rating for the RSD because he did not find that she met the criteria for that diagnosis under the AMA Guides to the Evaluation of Permanent Impairment at the time of his evaluation in August 2006.
24. Milo Pulde, M.D. is board certified in internal medicine, with expertise in neurological and pain disorders. He reviewed Claimant’s medical records and examined her on February 13, 2006. Based on the review and examination, Dr. Pulde opined that it is possible, though not probable, that Claimant has RSD. He determined that Claimant has no permanent partial impairment attributable to the work related injury.
25. Dr. Matthew noted that in more than half the patients with RSD, pain crosses the midline so that one has pain in the previously unaffected extremity. He explained that RSD is not a static state, that symptoms can ebb and flow. It is possible that not all examiners detected the signs he assessed because the examinations were conducted at different times. Further, RSD has degrees of severity and is best treated in the early stages before the signs the defense experts believe are essential for a diagnosis, appear.
26. Diabetic neuropathy cannot explain the symptoms Claimant has in her extremities. Diabetic neuropathy causes pain and loss of other sensation in an extremity, not the hypersensitivity to light touch seen with RSD.
27. Claimant’s counsel has a one-third contingency fee agreement with Claimant and an approved attorney lien. Counsel spent $1,625.70 pursuing this claim.
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). She 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).
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2. There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the inference from the facts 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)).
3. When qualified medical experts disagree, as in this case, the Department has traditionally examined the following criteria in determining which opinions to accept: 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)).
4. Dr. Matthew has the advantage as the treating physician in this case, having treated Claimant for decades. He was familiar with her reaction to pain, her chronic conditions and her responses to treatment. Although clearly an advocate for the Claimant, there is no suggestion that his objectivity was in any way compromised. All experts are well qualified, although none has a specialty in the diagnosis and treatment of RSD. All conducted thorough examinations and reviewed relevant medical records.
5. All suggested at one time or another that Claimant had RSD. They were probably all correct. On balance I accept the opinion of Dr. Matthew as the most persuasive. He convinced me that RSD is not a static state, that symptoms can ebb and flow. It is likely that Claimant was not highly symptomatic at the time Dr. Pulde and others examined her. Dr. Matthew also convincingly explained that RSD has degrees of severity and is best treated in the early stages before the signs the defense experts believe are essential for a diagnosis, appear. Finally, I accept Dr. Matthew opinion that diabetic neuropathy cannot explain the symptoms he attributes to RSD. Diabetic neuropathy causes pain and loss of other sensation in an extremity, not the hypersensitivity seen with RSD.
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6. Accordingly, Defendant is responsible not only for the fractured wrist and carpal tunnel syndrome on the right, but also for medical treatment for Claimant’s RSD pursuant to 21 V.S.A. § 640(a).
7. If the permanent partial disability benefits have not yet been paid, Defendant is responsible for payment based on the 11% whole person rating assessed by Dr. White.
8. Pursuant to 21 V.S.A. § 678(a) and WC Rule 10. Claimant is also owed attorney fees based on 20% of the total award, not to exceed $9,000, and the necessary costs of $1,625.70.
9. Interest must be paid from the date each of the ordered benefits would have been paid had the claim been accepted, until paid. 21 V.S.A. § 664.
ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law, Defendant must pay the benefits specified above for:
1. Medical Benefits;
2. Permanent Partial disability benefits
3. Interest;
4. Attorney fees and costs.
Dated at Montpelier, Vermont this 16th 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.

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.

Matthew Commo v. Stevens Gas Services, Inc. (February 3, 2010)

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Matthew Commo v. Stevens Gas Services, Inc. (February 3, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Matthew Commo Opinion No. 03-10WC
v. By: Jane Dimotsis, Esq.
Sal Spinosa, Esq.
Stevens Gas Services, Inc. Hearing Officers
For: Patricia Moulton Powden
Commissioner
State File Nos. W-7337 and Z-3648
OPINION AND ORDER
Hearing held in Montpelier on February 27, 2009 and June 17, 2009
Record closed on September 8, 2009
APPEARANCES:
Richard Goldsborough, Esq, for Claimant
Tammy Denton, Esq., for Defendant
ISSUES PRESENTED:
1. What is the appropriate permanent impairment rating for Claimant’s April 13, 2005 low back injury?
2. What is the appropriate permanent impairment rating for Claimant’s June 17, 2005 shoulder injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Curriculum Vitae, Verne Backus, M.D.
Defendant’s Exhibit A: Curriculum Vitae, John Johansson, D.O.
CLAIM:
Permanent partial disability benefits pursuant to 21 V.S.A.§648
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 contained in the Department’s file relating to this claim.
Claimant’s Back Injury
3. On April 13, 2005 Claimant injured his lower back while making a fuel delivery. Defendant accepted the injury as compensable and paid workers’ compensation benefits accordingly.
4. Claimant’s symptoms included right-sided low back and hip pain, with radiation down his right leg. Diagnostic imaging revealed disc herniations on the right at L4-5 and on the left at L5-S1. When his symptoms failed to abate with conservative treatment, in October 2005 Claimant underwent L4-5 disc surgery. Afterwards, he reported to Dr. Krag, his treating surgeon, that with the exception of some residual numbness in his toe, his right leg symptoms had completely resolved.
Claimant’s Shoulder Injury
5. On June 17, 2005, after his April 13, 2005 back injury but before his October 2005 back surgery, Claimant fell down a flight of stairs while at work and injured his right shoulder. Claimant was diagnosed with a torn rotator cuff, which Dr. Slaughterbeck surgically repaired on October 24, 2005. Thereafter, Claimant underwent a course of physical therapy. By May 2006 Dr. Slaughterbeck reported that he had regained full range of motion in his shoulder. The March 2006 physical therapy discharge note reflected the same results.
Permanent Impairment Ratings – Spine
6. At Defendant’s request, in September 2006 Dr. Johansson, an osteopathic physician, evaluated Claimant for the purpose of rating the extent of his permanent impairment relative to both the April 2005 low back injury and the June 2005 shoulder injury. In March 2007, upon referral of his attorney Claimant underwent a second permanency evaluation, this time with Dr. Backus, an occupational medicine specialist.
7. As to Claimant’s low back injury, both doctors determined that Claimant had reached an end medical result as of September 5, 2006, the date of Dr. Johansson’s examination. Using the AMA Guides to the Evaluation of Permanent Impairment, 5th ed. (the “AMA Guides”), both doctors concluded that Claimant fit within DRE Category 3, which provides an impairment range of ten to thirteen percent. According to the AMA Guides, to select the appropriate impairment rating within that range requires an analysis of how the injury has impacted one’s activities of daily living.
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8. Dr. Johansson placed Claimant at the low end of the range and therefore rated him with a 10% whole person impairment referable to his spine. In Dr. Johansson’s opinion, it was inappropriate to assign any additional percentage attributable to the impact on Claimant’s activities of daily living, as at least some of that impact was attributable instead to Claimant’s June 2005 shoulder injury.
9. Dr. Backus disagreed. Unlike Dr. Johansson, he documented Claimant’s responses on both a pain disability index and an impairment impact inventory. From that he concluded that the impact of Claimant’s low back injury on his ability to perform activities of daily living merited a rating at the high end of the scale, or 13% whole person. Dr. Backus also noted that, to the extent that Claimant’s shoulder injury also affected his activities of daily living, that impact was accounted for in the impairment rating for that injury. While he agreed that the impact of an injury on one’s activities of daily living should not be counted twice, neither should it be ignored in the context of a rating for which the AMA Guides dictate that it be considered.
Permanent Impairment Ratings – Shoulder
10. Again, both doctors agree that Claimant reached an end medical result for his June 2005 shoulder injury as of September 5, 2006, the date of Dr. Johansson’s examination. Both also agree that under the AMA Guides, the appropriate impairment rating for this injury depends on the extent of any residual deficit in Claimant’s shoulder range of motion. They disagree as to how best to measure it.
11. According to Dr. Johansson’s range of motion measurements, Claimant was left with a 2% whole person impairment referable to his shoulder injury. Dr. Johansson found corroboration for this rating in Claimant’s medical records, specifically the reports from Dr. Slaughterbeck and the physical therapist indicating that by May 2006 Claimant had regained full range of motion in his shoulder.
12. Dr. Backus reached a different result. According to his measurements Claimant’s shoulder range of motion was significantly more limited than what Dr. Johansson had reported. Dr. Backus’ rating was higher, therefore – 6% whole person.
13. Dr. Backus attributed the difference between his rating and Dr. Johansson’s to a variety of factors. Noting that the AMA Guides require that an impairment rating be based on active, not passive, range of motion, Dr. Backus questioned Dr. Johansson’s reliance on both the March 2006 physical therapy report and Dr. Slaughterbeck’s May 2006 report as corroboration for his findings. Those reports reflected passive, not active, range of motion findings. In addition, Dr. Backus noted that range of motion measurements that are taken shortly after active treatment has concluded, as both the physical therapist’s and Dr. Slaughterbeck’s measurements were, often do not reflect the true extent of a patient’s permanent loss. With the passage of time, additional deficits may become evident.
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14. For his part, Dr. Johansson acknowledged that the AMA Guides require that range of motion be measured actively, not passively. In his formal hearing testimony, Dr. Johansson clarified that he too took active range of motion measurements. Dr. Johansson expressed confidence in both his measurements and his methodology. He was skeptical that Claimant’s range of motion could have decreased to the level that Dr. Backus reported.
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 (September 17, 2003).
3. Applying the above test to the conflicting medical opinions offered in the current claims, I find Dr. Backus’ permanency ratings to be the most persuasive. First, as to Claimant’s low back injury, I find that Dr. Backus’ report was indicative of a more careful and thorough examination. Most notably, consistent with AMA Guides protocol it included an impairment impact inventory from which it was easy to discern why Dr. Backus reached the rating that he did. In contrast, the basis for Dr. Johansson’s rating is less apparent.
4. Similarly, as to Claimant’s shoulder injury I find Dr. Backus’ impairment rating to be better supported than Dr. Johansson’s, and therefore more credible. Again, Dr. Johansson’s report lacked sufficient detail from which to discern his measurement methodology. It is less persuasive as a result.
5. I conclude, therefore, that in accordance with Dr. Backus’ impairment ratings Claimant sustained a 13% whole person impairment referable to his April 2005 low back injury, and a 6% whole person impairment referable to his June 2005 shoulder injury.
6. As Claimant has prevailed on his claim for benefits, he is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit his itemized claim.
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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 13% whole person impairment referable to the spine, commencing on September 5, 2006, with credit for any amounts previously paid and with interest in accordance with 21 V.S.A. §664;
2. Permanent partial disability benefits in accordance with a 6% whole person impairment referable to the shoulder, commencing on September 5, 2006, with credit for any amounts previously paid and with interest in accordance with 21 V.S.A. §664; and
3. Costs and attorney fees in amounts to be established in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 3rd day of February 2010.
_____________________
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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