Archive

Tag Archive for: permanent impairment rating

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

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

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
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.
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.
3
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.
4
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.
5
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.

Robert Bruno v. Directech Holding Co. (May 19, 2010)

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

Robert Bruno v. Directech Holding Co. (May 19, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Robert Bruno Opinion No. 18-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Directech Holding Co.
For: Patricia Moulton Powden
Commissioner
State File No. Y-50514
OPINION AND ORDER
Hearing held in Montpelier, Vermont on February 8, 2010
Record closed on March 19, 2010
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Marion Ferguson, Esq., for Defendant
ISSUE PRESENTED:
1. Has Claimant reached an end medical result for his July 7, 2006 work-related injury and, if so, when did that occur?
2. What is the appropriate permanent impairment rating referable to Claimant’s July 7, 2006 work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Preservation deposition of Robert Beattie, M.D., January 8, 2010
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Medical benefits pursuant to 21 V.S.A. §640
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 relevant portions of the AMA Guides to the Evaluation of Permanent Impairment, 5th ed. (the “AMA Guides”).
3. Claimant worked for Defendant as a satellite television installer. His job required him to climb ladders, carry equipment and run wires in tight spaces.
4. Claimant’s prior medical history includes cervical degenerative disc disease, migraine headaches and fibromyalgia, a generalized chronic pain syndrome. Notwithstanding these conditions Claimant was able to work with no formal restrictions prior to the injury at issue here.
Claimant’s Work Injury and Subsequent Treatment
5. On July 7, 2006 Claimant was completing a service call at a customer’s home when he fell from a small step. Claimant landed directly on his right knee, which immediately became swollen and painful.
6. Defendant accepted Claimant’s right knee injury as compensable and began paying workers’ compensation benefits accordingly.
7. Claimant’s knee pain failed to respond to conservative therapy. His knee remained swollen and painful and he was unable to bear weight on it. In October 2006 he underwent arthroscopic surgery with Dr. Beattie, an orthopedic surgeon. Dr. Beattie maintains a general orthopedic practice with an interest in sports medicine that has evolved predominantly towards knee and shoulder injuries.
8. Dr. Beattie surgically repaired Claimant’s torn meniscus, debrided his patellofemoral joint and removed a sebaceous cyst, all as treatment causally related to Claimant’s July 2006 fall.
9. Claimant’s symptoms failed to improve with surgery, and in fact worsened instead. He underwent a series of joint lubrication injections in early 2007, and then a second arthroscopic surgery in August 2007, but neither of these interventions alleviated his symptoms. Claimant continued to experience sensations of clicking, locking and popping in his knee, which Dr. Beattie attributed specifically to his patellofemoral joint. In addition, however, Claimant also experienced burning pain and numbness around the perimeter of his kneecap, down his shin and into his foot. These symptoms were more suggestive to Dr. Beattie of post-traumatic neuritis, or nerve irritation. Dr. Beattie suspected that a neuroma might have formed in a small subcutaneous branch of Claimant’s saphenous nerve, a sensory nerve in the lower leg.
3
10. Claimant underwent a second series of joint lubricating injections in April and May 2008, but again to no avail. Dr. Beattie continued to believe that Claimant’s symptoms were multi-factorial, a combination of osteoarthritis in his knee joint and post-traumatic neuritis. Dr. Beattie postulated as well that Claimant might have developed complex regional pain syndrome (CRPS) in his right leg.
Neurologic and Orthopedic Consultations
11. In order to further evaluate and identify possible treatment options for Claimant’s multi-factorial symptoms, in May 2008 Dr. Beattie made two subsequent referrals – one to Dr. Howe, an orthopedic surgeon, for a second opinion primarily as to Claimant’s joint pain, and one to Dr. Tranmer, a neurosurgeon, for consideration of a neurectomy to treat his nerve pain. The purpose of a neurectomy is to decrease the irritation in the nerve by excising the neuroma and burying the nerve ending in a less vulnerable site. By doing so, the affected area becomes numb, but is no longer painful.
12. Dr. Tranmer first evaluated Claimant in July 2008. Although he noted the neurogenic nature of Claimant’s pain, in his clinical exam he could not identify any region where a neuroma likely was present. Thus Dr. Tranmer could not recommend a neurectomy. As an alternative, however, Dr. Tranmer suggested that Claimant might benefit from a spinal cord stimulator. A spinal cord stimulator does not address the root cause of a patient’s pain, but rather treats his or her pain symptoms in a more non-specific manner.
13. Even after evaluations by two other specialists, it remains unclear whether Claimant’s neurogenic symptoms are due to a neuroma. Dr. Pino, a pain management specialist who evaluated Claimant at Dr. Tranmer’s request in October 2008, concluded that a neuroma had formed in Claimant’s knee. However, after evaluating Claimant in December 2008 Dr. Penar, another neurosurgeon in Dr. Tranmer’s practice, concluded that the clinical findings were too equivocal to support the presence of a neuroma.
14. As Dr. Tranmer had, Dr. Penar also advised against a neurectomy as a means of addressing Claimant’s symptoms. According to Dr. Penar, because there is no specific well-defined single branch of the saphenous nerve, it would be very difficult to pinpoint and find a neuroma even by surgically exploring the area. In addition, Dr. Penar reported that Claimant “did not want” additional numbness in his foot, and therefore might not be satisfied with the outcome of such a procedure.
15. With these considerations in mind, Dr. Penar concurred with Dr. Tranmer that a spinal cord stimulator represented a better treatment option for Claimant’s nerve pain. If successful, a stimulator would provide long-lasting relief of Claimant’s pain. It also would treat a broader area of sensitivity than that likely due to a neuroma.
16. As to the orthopedic aspect of Dr. Beattie’s multi-factorial diagnosis, Claimant underwent a second opinion consultation with Dr. Howe in October 2008. Dr. Howe acknowledged that it was difficult to confirm the exact etiology of Claimant’s symptoms, whether orthopedic or neurologic. From an orthopedic perspective, in his opinion Claimant was not a candidate for a total knee replacement.
4
17. As to Claimant’s nerve pain, Dr. Howe found “clear evidence” of a neuroma in Claimant’s clinical examination. Of note, furthermore, after Dr. Howe injected the suspected area of the neuroma with an anesthetic, Claimant reported significant pain relief. Dr. Howe interpreted this finding as further diagnostic evidence that a neuroma was in fact causing Claimant’s neurogenic symptoms. He deferred to make any treatment recommendations, however, and instead referred Claimant back to Drs. Beattie and/or Tranmer for further consideration of his options.
Evaluation for Complex Regional Pain Syndrome (CRPS)
18. At his attorney’s referral, in February 2009 Claimant underwent an evaluation with Dr. Zweber to assess whether he suffered from CRPS in his right lower extremity. Dr. Zweber is board-certified in physical medicine and rehabilitation, and has extensive credentials and experience in treating CRPS patients.
19. Dr. Zweber determined that Claimant did in fact suffer from CRPS. In reaching this conclusion Dr. Zweber noted such physical findings as changes in skin color, temperature and texture, joint stiffness, edema and abnormal hair and nail growth.
20. Notwithstanding his diagnostic conclusions, Dr. Zweber acknowledged that his examination of Claimant did not reveal sufficient physical findings to meet the diagnostic criteria for CRPS as contained in the AMA Guides. According to those criteria, a patient must exhibit at least eight of eleven designated signs and symptoms of the condition in order for the diagnosis to be used as the basis for rating permanent impairment. Dr. Zweber testified that the AMA Guides’ criteria were fairly arbitrary, somewhat outdated and not considered a “diagnostic bible” by CRPS practitioners.
21. Dr. Zweber testified that recent treatment advances have identified spinal cord stimulators as possibly effective in improving CRPS symptoms. If successful, the device is designed to control a patient’s pain level on a “more or less” permanent basis, though admittedly it is not in any way curative of the condition itself.
22. Dr. Zweber determined that “other than consideration for a spinal cord stimulator,” Claimant had reached an end medical result as of his February 2009 evaluation.
23. Even though Claimant did not satisfy the AMA Guides’ diagnostic criteria for CRPS, in rating the extent of his permanent impairment Dr. Zweber utilized the Guides’ methodology nonetheless. That method directs practitioners to consider the extent of a patient’s gait impairment when rating permanency due to CRPS in a lower extremity. Dr. Zweber categorized Claimant’s gait impairment as “moderate,” and therefore accorded him a 19% whole person impairment rating.
5
Dr. White’s Independent Medical Evaluations
24. At Defendant’s request, Claimant underwent an independent medical evaluation with Dr. White, an occupational medicine specialist, in April 2008. At the time of this evaluation, Claimant had not yet completed Dr. Beattie’s second series of joint lubricating injections. Nevertheless, Dr. White determined that it was appropriate to rate the extent of Claimant’s permanent impairment. Having observed no signs of CRPS in his physical examination, Dr. White based his rating solely on range of motion deficits in Claimant’s knee. According to his calculation, Claimant had suffered a 4% whole person impairment.
25. With Dr. White’s report as support, the Department approved Defendant’s Notice of Intention to Discontinue Benefits (Form 27) on the grounds that Claimant had reached an end medical result. The discontinuance was effective May 8, 2008.
26. Dr. White supplemented his report with an addendum in January 2009, in which he clarified that Claimant had in fact reached an end medical result as of that date. Thereafter, Dr. White conducted a second independent medical evaluation in May 2009, followed by another addendum in June 2009. In the intervening months since Dr. White’s first evaluation Claimant had undergone the consultations noted above (with Drs. Tranmer, Pino, Penar and Howe), all of which were aimed primarily at evaluating possible treatment options to address his ongoing symptoms.
27. Dr. White found no basis in this interval history for retracting his previous end medical result determination. He acknowledged that a spinal cord stimulator was a reasonable treatment option, and that if successful it might provide up to 60% improvement in Claimant’s symptoms for as long as two years.1 Nevertheless, the treatment was not designed to be curative – it would not address the underlying cause of Claimant’s symptoms, but instead would serve only to mask his pain. Citing to both the definition of “end medical result” contained in Workers’ Compensation Rule 2.1200 and the concept of “maximum medical improvement” as defined by the AMA Guides, Dr. White concluded that Claimant’s condition was unlikely to change substantially, either with or without further treatment. Therefore, he remained at end medical result.
28. Dr. White considered the possibility of a neurectomy in a similar vein. In his opinion, that too would be a reasonable treatment option, but again one that due to its small likelihood of success probably would not significantly affect Claimant’s underlying condition.
29. Dr. White acknowledged that despite the additional consultations Claimant had undergone, the anatomic etiology of his symptoms remained unclear.
1 Dr. White testified that a spinal cord stimulator’s efficacy sometimes can be extended beyond two years by replacing its batteries, though eventually the device’s positive effect will dissipate nonetheless.
6
30. As for permanency, Dr. White reiterated that his examination failed to reveal sufficient signs or symptoms of CRPS to justify an impairment rating for that condition under the AMA Guides. As a consequence, he could not support Dr. Zweber’s 19% rating. However, Dr. White did determine that Claimant exhibited greater losses in range of motion in his May 2009 evaluation than he had at the time of his April 2008 evaluation. On those grounds, he increased Claimant’s permanent impairment rating from 4% whole person to 8%.
Claimant’s Recent Treatment and Current Status
31. At Dr. Pino’s direction, on August 6, 2009 Claimant underwent a spinal cord stimulator trial. Unfortunately he did not experience effective symptom relief and therefore was determined not to be a good candidate for permanent implantation. Dr. Pino removed the device on August 13, 2009.
32. Dr. Beattie last evaluated Claimant in September 2009. His treatment note for that date does not reflect any additional recommendations or referrals for Claimant’s ongoing right knee symptoms. In his January 2010 deposition, however, Dr. Beattie continued to maintain that Claimant might benefit from a neurectomy. In his opinion, the fact that Claimant had experienced significant pain relief after Dr. Howe injected his saphenous nerve with anesthetic was evidence that a neuroma existed at the site. Notwithstanding both Dr. Tranmer’s and Dr. Penar’s misgivings, therefore, Dr. Beattie testified that “if it was my knee, I would consider another opinion.” Dr. Beattie acknowledged that if it was determined after a third neurosurgical opinion that Claimant was not an appropriate candidate for a neurectomy, then he would be at end medical result.
33. Claimant testified at the formal hearing that at Dr. Beattie’s referral he was scheduled to see a third neurosurgeon, Dr. Ball, in the coming week. Aside from Dr. Beattie’s deposition testimony, however, there is no medical record documenting that referral.
34. Claimant has not returned to work since his injury. He wears a knee brace and walks with a cane. He takes a variety of prescription medications, some of which affect his concentration and make him sleepy during the day. He described his pain level as “intolerable.” Recently he began seeing a therapist for depression and anxiety.
7
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Once a claim has been accepted and benefits have been paid, the party seeking to discontinue bears the burden of proving that it is proper to do so. Merrill v. University of Vermont, 133 Vt. 101,105 (1974); Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January 20, 2010).
3. This claim raises two distinct issues. Defendant bears the burden of proof as to the first issue – whether it properly discontinued Claimant’s temporary disability benefits on end medical result grounds in May 2008. Claimant bears the burden of proof as to the second issue – what is the extent of his permanent impairment and specifically, whether it is appropriate to consider CRPS as a rating factor.
End Medical Result
4. Vermont’s workers’ compensation rules define the terms “end medical result” and “palliative care” as follows:
“End medical result” . . . means the point at which a person has reached a substantial plateau in the medical recovery process, such that significant further improvement is not expected, regardless of treatment. Workers’ Compensation Rule 2.1200.
“Palliative care” means medical services rendered to reduce or moderate temporarily the intensity of an otherwise stable medical condition, but does not include those medical services rendered to diagnose, heal or permanently alleviate or eliminate a medical condition. Workers’ Compensation Rule 2.1310.
8
5. With those terms in mind, I find that Defendant’s May 2008 discontinuance on end medical result grounds was premature. Not only was Claimant in the midst of a series of joint lubrication injections at the time, but in the subsequent months he underwent additional evaluations, both orthopedic and neurosurgical, with the goal of properly diagnosing his condition and developing an appropriate treatment plan. Dr. White himself admitted that the anatomic etiology of Claimant’s symptoms was unclear. The specialist evaluations Claimant underwent with Drs. Tranmer, Howe, Pino and Penar in July, October and December 2008 represented reasonable attempts to remedy that lack of diagnostic clarity and in that way further his medical recovery process.
6. In fact, the evidence establishes that Claimant did not reach an end medical result until August 13, 2009 when his spinal cord stimulator trial concluded. At the time it was undertaken, this treatment was reasonably calculated to lead to further improvement in Claimant’s medical recovery process. It is sufficient, therefore, to negate a finding of end medical result as that term is defined in Workers’ Compensation Rule 2.1200. Luff v. Rent Way, Opinion No. 07-10WC (February 16, 2010).
7. Defendant argues strenuously that Luff was incorrectly decided, that it impermissibly conflicts with the Vermont Supreme Court’s holding in Coburn v. Frank Dodge & Sons, 165 Vt. 529 (1996), and that its precedential value should either be strictly limited or, better yet, reconsidered. Defendant asserts that by endorsing the possibility that a spinal cord stimulator implantation can, in appropriate circumstances, negate a finding of end medical result, the effect of Luff is to eliminate the necessary element of finality in a workers’ compensation indemnity claim.
8. Defendant’s analysis is misguided. As the Luff decision explained, a spinal cord stimulator involves a finite course of treatment, consisting of a brief trial and, if successful, surgical implantation shortly thereafter. Once implanted, the device’s beneficial effect may last for years, but the treatment itself is concluded and an end medical result is achieved. Unlike open-ended chiropractic maintenance programs such as the Supreme Court considered in Coburn, treatment with a spinal cord stimulator does not undermine the element of finality, it enhances it.
9. As for Defendant’s fear that Luff will be interpreted to allow “an infinite loop of sequential ‘finite’ treatments” such as “biofeedback, prolotherapy, Vodou or a trip to Lourdes,” this is equally groundless. Nothing in Luff undermined in any way the requirement that a treatment be reasonable, necessary and likely from a medical perspective to advance the claimant’s recovery process in order for it to negate a finding of end medical result.
10. As was the case in Luff, I conclude here that Claimant’s spinal cord stimulator trial was reasonably calculated to lead to further improvement in his medical recovery process and that therefore he did not reach an end medical result at least until August 13, 2009 when the effort proved unsuccessful.
9
11. Claimant maintains that even that date is premature, however. With Dr. Beattie’s deposition testimony as support, he argues that he should not be deemed to be at end medical result at least until he has obtained a third neurosurgical opinion as to whether a neurectomy might still be a reasonable treatment option.
12. I cannot agree. First, notwithstanding Dr. Beattie’s deposition testimony, the medical records themselves do not reflect any discussion of a third neurosurgical opinion, nor a specific referral for that purpose. Discussing treatment options with one’s patient in the context of a medical appointment is qualitatively different from discussing them in the context of a legal proceeding. I am reluctant to extend the date of end medical result based solely on the latter, with no documentation of the former having occurred as well.
13. Having not seen Dr. Beattie since September 2009, furthermore, Claimant cannot be said to have actively treated in the intervening months. Without having done so, it would be inappropriate to extend his end medical result date to cover that period.
14. Depending on the outcome of Claimant’s third neurosurgical opinion, it is conceivable that Defendant will be obligated to resume his temporary disability benefits. This will depend, of course, on what treatment recommendations, if any, that opinion yields, and whether they are deemed reasonable in the context of the entire medical record. That issue is not before me now. In the meantime, as noted above, I find it appropriate to consider Claimant to have reached an end medical result as of August 13, 2009.
Permanent Impairment Rating
15. The second disputed issue in this claim concerns the extent of Claimant’s permanent impairment. At the heart of this issue is whether it is appropriate to consider CRPS as a basis for rating impairment, as Dr. Zweber did, or whether that diagnosis should be excluded for rating purposes, as Dr. White did.
16. As was noted in a very recent opinion, Vermont’s workers’ compensation statute specifically mandates that all permanency ratings be made in accordance with the fifth edition of the AMA Guides. 21 V.S.A. §648(b); Brown v. W.T. Martin Plumbing & Heating, Opinion No. 14-10WC (April 15, 2010). In the context of CRPS, this means that the AMA Guides’ diagnostic criteria must be met in order for the condition to form the basis of an impairment rating.
17. Here, Dr. Zweber acknowledged that Claimant had failed to exhibit sufficient signs or symptoms of CRPS to meet the AMA Guides’ criteria. And while I might agree that the AMA Guides is not a “diagnostic bible” for CRPS practitioners generally, when the issue is permanency the statute leaves no room for discretion.2
2 As was noted in Brown, Conclusion of Law No. 7 at note 4, the statutory mandate in favor of the AMA Guides applies only in the context of determining the “existence and degree” of an injured worker’s permanent impairment. The Guides’ diagnostic criteria are not necessarily determinative where other workers’ compensation benefits are at issue.
10
18. As Dr. Zweber’s rating does not comport with the AMA Guides’ criteria I have no choice but to discard it. Instead, I accept Dr. White’s 8% whole person impairment rating as the appropriate measurement of Claimant’s permanency.
19. As Claimant has prevailed only on his claim for temporary disability benefits, he is entitled to an award of those costs that relate directly thereto. Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003), citing Brown v. Whiting, Opinion No. 7-97WC (June 13, 1997). As for attorney fees, in cases where a claimant has only partially prevailed, the Commissioner typically exercises her discretion to award fees commensurate with the extent of the claimant’s success. Subject to these limitations, Claimant shall have 30 days from the date of this opinion to submit evidence of his allowable costs and attorney fees.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary disability benefits from May 8, 2008 through August 13, 2009;
2. Permanent partial disability benefits in accordance with Dr. White’s 8% whole person impairment rating;
3. Interest on the above amounts in accordance with 21 V.S.A. §664; and
4. Costs and attorney fees in amounts to be determined pursuant to 21 V.S.A. §678.
DATED at Montpelier, Vermont this 19th day of May 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.

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.
9
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.

Gloria Crowe v. The Fonda Group, Inc. (January 25, 2011)

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

Gloria Crowe v. The Fonda Group, Inc. (January 25, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Gloria Crowe Opinion No. 02-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
The Fonda Group, Inc.
For: Anne M. Noonan
Commissioner
State File No. S-13358
OPINION AND ORDER
No hearing held; claim submitted on briefs
Record closed on December 2, 2010
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Marion Ferguson, Esq., for Defendant
ISSUES PRESENTED:
1. What is the appropriate permanent impairment rating referable to Claimant’s cervical spine condition?
2. Is Defendant obligated to sign the treatment authorization form required by The Boston Spine Group?
EXHIBITS:
Claimant’s Exhibit 1: Various correspondence
Claimant’s Exhibit 2: Crowe v. The Fonda Group, Inc., Opinion No. 37-07WC (January
8, 2008)
Claimant’s Exhibit 3: Various medical records
Claimant’s Exhibit 4: Various correspondence
2
Defendant’s Exhibit A: Crowe v. The Fonda Group, Inc., Opinion No. 37-07WC
(January 8, 2008)
Defendant’s Exhibit B: March 31, 2008 letter, with attached medical report
Defendant’s Exhibit C: May 27, 2008 letter
Defendant’s Exhibit D: Dr. Johansson Independent Medical Examination/Impairment
Rating, February 23, 2004
Defendant’s Exhibit E: February 10, 2010 correspondence
Defendant’s Exhibit F: The Boston Spine Group treatment authorization form, unsigned
Defendant’s Exhibit G: AMA Guides to the Evaluation of Permanent Impairment, p. 392
Defendant’s Exhibit H: Dr. Backus medical record, December 29, 2009
Defendant’s Exhibit I: Dr. Zweber medical record, July 19, 2002
Defendant’s Exhibit J: Deposition transcript, John Johansson, D.O., February 21, 2007
Defendant’s Exhibit K: Deposition transcript, Verne Backus, M.D., April 9, 2007
Defendant’s Exhibit L: Johnson State College transcript, issued July 17, 2006
CLAIM:
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Medical benefits pursuant to 21 V.S.A. §640
Costs and attorney fees pursuant to 21 V.S.A. §678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim. Judicial notice also is taken of relevant portions of the AMA Guides to the Evaluation of Permanent Impairment (5th ed.) (hereinafter the “AMA Guides”).
Claimant’s Work Injury and Subsequent Medical Course
3. Claimant worked as a machine operator in Defendant’s paper products manufacturing plant. On November 19, 2001 she was operating a large machine when she struck her head on an overhead ladder. As a result of this accident, Claimant suffered various injuries, including a right-sided cervical strain with radicular pain into her right shoulder, and also cervical spine-generated migraine headaches. Treatment for the latter condition was determined to be compensable following a formal hearing and decision by the Commissioner in 2008. Crowe v. The Fonda Group, Inc., Opinion No. 37-07WC (January 8, 2008).
3
4. That there was a radicular component to Claimant’s pain was corroborated by electrodiagnostic studies completed in July 2002, the results of which were suggestive of mild cervical radiculopathy at the C5 disc level. As Dr. Cody, a consulting physician who evaluated Claimant at the request of her treating orthopedic surgeon explained, this likely caused the muscles in Claimant’s right shoulder to become weak, leading to secondary rotator cuff pathology. Claimant underwent shoulder surgery to repair this damage in January 2003.
5. As for her cervical symptoms, Claimant treated conservatively. Dr. Backus, an occupational medicine specialist, was her primary “gatekeeper” physician, both in the months immediately following her injury and again in 2005, when treatment focused more on alleviating her cervical-spine generated migraine headaches. After a course of prolotherapy injections, the compensability of which Defendant disputed in the context of the prior proceedings in this claim, the Commissioner determined that Claimant reached an end medical result for her work-related injuries on August 11, 2006. Crowe v. The Fonda Group, Inc., supra.
6. At Defendant’s request, in February 2004 Claimant underwent an independent medical examination with Dr. Johansson, an osteopath. Dr. Johansson rated Claimant with an 8% whole person permanent impairment referable to her right shoulder. Neither party disputes this rating, and Defendant has since paid permanent partial disability benefits in accordance with it.1
Permanent Impairment Ratings Referable to Claimant’s Cervical Condition
7. Both Defendant’s medical expert, Dr. Johansson, and Claimant’s treating physician, Dr. Backus, provided permanent impairment ratings referable to Claimant’s cervical condition. To do so, both used the Diagnosis-Related Estimates (DRE) methodology suggested by the AMA Guides. Under this methodology, an individual is assigned to the correct impairment category based on symptoms, signs and appropriate diagnostic test results. AMA Guides §15.3 at p. 381. In Category I, the individual has only subjective complaints, but no significant clinical findings or documentable neurologic impairment. In Category II, he or she may have radicular complaints, such as pain or weakness in a nerve root distribution, but lacks objective verification by electrodiagnostic findings. In Category III, there are both significant signs of radiculopathy and objective electrodiagnostic verification. Id. §15.3 at p. 383 and Box 15-1, §15.6a at p. 392, Table 15-5. Each category carries with it a range of appropriate impairment ratings – 0% for Category I, 5-8% for Category II and 15-18% for Category III. Id. at Table 15-5.
8. In the context of his February 2004 independent medical examination, Dr. Johansson rated Claimant with a 5% permanent impairment referable to her cervical condition. In doing so, he concluded that Claimant was suffering from a chronic cervical strain, but with no active signs of radiculopathy. He thus placed her at the low end of the range provided for a DRE Cervical Category II impairment. Id. §15.6a at p. 392, Table 15-5.
1 Defendant also has paid permanency benefits in accordance with Dr. Backus’ 3% whole person impairment rating referable to Claimant’s cervical-spine generated migraine headaches.
4
9. Dr. Backus first considered the extent of the permanent impairment referable to Claimant’s neck injury in March 2008. At that time, however, he expressed uncertainty as to whether her cervical condition properly was ratable as a Category II impairment or as a Category III impairment. According to Dr. Backus’ interpretation of the AMA Guides, the July 2002 electrodiagnostic studies had provided objective evidence of C5 radiculopathy, and if repeat studies verified that it still existed, then Claimant’s cervical condition would be ratable as a Category III impairment. Alternatively, if repeat studies were now normal, indicating that the C5 radiculopathy had resolved, then only a Category II rating would be justified. With this uncertainty in mind, prior to assigning a definitive rating Dr. Backus recommended that Claimant first undergo repeat electrodiagnostic testing so that she could be rated according to whichever DRE category proved appropriate.
10. When requested to authorize the testing, however, Defendant refused. Initially it did so because it wanted to explore settlement possibilities first. Later, supported by Dr. Johansson’s opinion, it opposed the testing on substantive grounds. From his review of Claimant’s medical records, Dr. Johansson believed first, that there had never been any clinical evidence of radiculopathy, and second, that Claimant’s current complaints were not at all radicular in nature. In his view, therefore, further electrodiagnostic testing was not medically necessary.
11. I find Dr. Johansson’s opinion on this issue to be unpersuasive. In fact, there had been clinical evidence of radiculopathy in the past, see Finding of Fact No. 4 supra. The purpose of repeat testing, therefore, would be to determine if there still remained a radicular component to Claimant’s pain, as this would have a direct bearing on her permanent impairment rating.
12. Lacking Defendant’s authorization, Claimant declined to undergo the repeat testing.2 In December 2009 Dr. Backus finalized his impairment rating, stating that because “[Defendant] has refused my recommendation to repeat the electrodiagnostic study to see if [the C5 radiculopathy] was resolved thus I must assume it is still present.” Based both on that assumption and on Claimant’s persistent complaints of radicular pain from her neck into her right shoulder, Dr. Backus concluded that she met the requirements for a DRE Cervical Category III impairment. Taking into account the impact that Claimant’s chronic pain and headaches had had on her activities of daily living, Dr. Backus rated her with an 18% whole person impairment, the highest rating permissible within that category.
2 Defendant asserts in its pleadings that at some point it did in fact authorize repeat electrodiagnostic testing, but that Claimant refused to undergo it. There is no evidence to that effect in the record, however.
5
13. In describing the basis for assigning an individual to DRE Category I, II or III, the AMA Guides state as follows:
Since an individual is evaluated after having reached MMI [maximum medical improvement], a previous history of objective findings may not define the current, ratable condition but is important in determining the course and whether MMI has been reached. The impairment rating is based on the condition once MMI is reached, not on prior symptoms or signs.
AMA Guides §15.3 at p. 383 (emphasis in original).
The Boston Spine Group Treatment Authorization Form
14. At some point in 2009, Claimant was referred to Dr. Jenis, an orthopedic spine surgeon at The Boston Spine Group, for consideration of artificial cervical disc replacement surgery. Defendant’s medical expert, Dr. Johansson, felt that Claimant was not an appropriate candidate for this procedure and therefore that the referral was not medically necessary. Nevertheless, Defendant voluntarily agreed to authorize an initial evaluation on a without prejudice basis.
15. Prior to scheduling an evaluation, Dr. Jenis’ office forwarded to Defendant’s adjuster an authorization form, which provided as follows (emphasis in original):
The above named patient was recently referred to Dr. Louis Jenis for evaluation and subsequent medical treatment for injuries sustained in an industrial accident. Prior to scheduling the patient for medical treatment at Dr. Jenis’ office, we must receive your signature below authorizing treatment which is medically necessary and causally related to this injury, and agreeing to full charges for physician fees as stated below.
Please note edits to this form will not be accepted.
Our fee schedule is as follows:
Initial Evaluation: $295.00
Follow-Up Visits: $180.00
We will proceed with scheduling the patient as soon as your written authorization for payment at the above listed fee schedule is indicated in the space provided below.
In addition, if surgery is indicated, we do not accept workers’ compensation fee schedule. By signing this form, you agree to negotiate surgical fees in good faith.
6
16. Defendant’s attorney executed the authorization on Defendant’s behalf, but despite the admonition not to do so she edited it in two respects. First, Defendant’s attorney circled the “Initial Evaluation: $295.00” line, and hand wrote the word “only” next to it, presumably to indicate that Defendant was only authorizing that visit, not any follow-up visits.
17. Second, Defendant’s attorney altered the signature line. The blank form had read, “_____________ agrees to pay full charges as listed on the physician fee schedule for initial evaluation and follow-up visits for the above named patient.” Defendant’s attorney modified it to read (deleted language struck, added language underlined), “[Defendant] agrees to pay full charges as listed on the physician fee schedule for initial evaluation and follow-up visits only for the above named patient.” Again, presumably the purpose of this alteration was to indicate Defendant’s authorization for treatment at the billing rates and upon the terms described in the form, but only as to the initial evaluation, not as to any subsequent visits.
18. Defendant tendered payment of the $295.00 charge for Dr. Jenis’ initial evaluation, but without a signed, unedited authorization form the office has refused to schedule an appointment.
CONCLUSIONS OF LAW:
Permanent Impairment Referable to Claimant’s Cervical Condition
1. The first issue raised by this claim concerns Claimant’s entitlement to permanency benefits for her work-related cervical injury. Claimant seeks benefits in accordance with Dr. Backus’ 18% whole person impairment rating. Defendant argues that benefits should be awarded in accordance with Dr. Johansson’s 5% whole person rating instead. Claimant bears the burden of proof on this issue. King v. Snide, 144 Vt. 395, 399 (1984).
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. Consideration of these factors weighs in Dr. Backus’ favor here. As the treating physician, Dr. Backus was more familiar with Claimant’s symptoms, signs and medical course than Dr. Johansson was. In addition, his determination that Claimant required repeat electrodiagnostic testing in order to assign her to the appropriate DRE impairment rating category was supported objectively in at least two respects. First, there was previously documented electrodiagnostic evidence of radiculopathy in 2002. Second, there was prior clinical evidence of radiculopathy, namely the muscle weakness in Claimant’s shoulder that Dr. Cody described as the origin of her rotator cuff pathology. Dr. Johansson’s analysis ignored both of these facts.
7
4. I conclude that Dr. Backus applied the appropriate analysis to determining Claimant’s permanent impairment in the context of his March 2008 evaluation – he declined to do so, pending the results of further testing. I cannot conclude, however, that he reached the right result when he reconsidered the issue in December 2009. At that point, faced with Defendant’s refusal to authorize repeat electrodiagnostic testing, Dr. Backus made assumptions based on what he knew to be outdated test results, and thus derived an impairment rating that was grounded more in Claimant’s prior condition than in her current one. The AMA Guides specifically admonish against such an approach, and I am bound by statute, 21 V.S.A. §648(b), to do likewise. For this reason, I cannot accept his 18% impairment rating as credible.
5. Vermont’s Workers’ Compensation rules require that the employer pay for at least one permanency examination and impairment rating from the claimant’s treating physician, notwithstanding its decision to obtain a rating from its own medical expert as well. Workers’ Compensation Rule 11.2400. Implicit in this mandate is the requirement that the employer pay for whatever diagnostic testing is necessary in order to calculate a rating in accordance with the AMA Guides. Otherwise an employer might be able to undermine a treating physician’s impairment opinion simply by denying access to the tests required to support it. This is unfair, and not what the rules intend.
6. Rather than awarding permanency benefits based on Dr. Backus’ unsubstantiated assumptions, the better path is to require that the electrodiagnostic testing he recommended be conducted so that Claimant’s current impairment can be accurately assessed. Having found that Dr. Johansson’s opinion discounting the need for such testing was unpersuasive, I conclude that it is medically necessary and that therefore Defendant is obligated to pay for it. 21 V.S.A. §640(a). Once the testing is concluded, presumably it will be possible to calculate an impairment rating that comports with the AMA Guides’ requirements and is therefore more credible.
The Boston Spine Group Treatment Authorization Form
7. The second issue raised by this claim concerns whether Defendant can be ordered to execute The Boston Spine Group’s treatment authorization form as presented. Claimant asserts that signing the form does not obligate Defendant to pay for any treatment beyond the initial evaluation and that therefore the edits Defendant seeks to interpose on it are unnecessary. I disagree.
8. It is true that even if it executes the form as presented Defendant will not waive its right to contest its responsibility for future treatments on the grounds that they are not reasonable and necessary, and thus not covered under §640(a). Should Defendant fight this battle as to future treatment and lose, however, by its clear terms the unedited form obligates it to pay the “full charges” imposed by The Boston Spine Group’s fee schedule, even if Vermont’s workers’ compensation medical fee schedule might provide for a lesser charge. Defendant is well within its rights not to give any medical provider carte blanche in this manner.
8
9. Vermont’s workers’ compensation statute limits an employer’s liability to pay for “medical, surgical, hospital and nursing services and supplies” to the maximum fee provided by the Workers’ Compensation Medical Fee Schedule. 21 V.S.A. §640(d); Workers’ Compensation Rule 40.000. The commissioner has discretion to authorize reimbursement at a higher rate, but only if the injured worker “demonstrates to the commissioner’s satisfaction” that the treatment at issue is not available at the scheduled rate. 21 V.S.A. §640(d).
10. Whether Claimant can demonstrate that whatever future treatment Dr. Jenis might propose is unavailable at the Vermont fee schedule rate remains, of course, to be seen. If and when the question arises, however, Defendant is entitled to have it resolved by the commissioner, not by The Boston Spine Group. To the extent that the treatment authorization form bypasses the commissioner’s authority to do so, Defendant’s objection to signing it is entirely justified.
11. Were The Boston Spine Group to present Defendant with a treatment-specific authorization form rather than a global one, the current impasse might be overcome. In that way, Defendant could indicate its acquiescence to the fact that a particular treatment is not available at the Vermont fee schedule rate and thereby waive its right to have the commissioner decide that issue. Short of this solution, I cannot order Defendant to forego the protection that the statute specifically affords it.
12. I conclude, therefore, that Defendant was justified in refusing to execute the form as presented.
Costs and Attorney Fees
13. I conclude that Claimant has at least partially prevailed and therefore is entitled to an award of costs and attorney fees commensurate with the extent of her success. Claimant shall have 30 days from the date of this Opinion within which to submit her claim for reimbursement under 21 V.S.A. §678.
9
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s request that Defendant be ordered to execute The Boston Spine Group’s treatment authorization form is hereby DENIED. Defendant is hereby ORDERED to pay:
1. All medical costs associated with repeat electrodiagnostic testing as recommended by Dr. Backus in order that the permanent impairment referable to Claimant’s cervical condition can be rated according to the AMA Guides; and
2. Costs and attorney fees in amounts to be determined in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 25th day of January 2011.
_____________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

© Copyright - -