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

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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
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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. 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.
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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.
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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.
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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.
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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.
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CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Once a claim has been accepted and benefits have been paid, the party seeking to discontinue bears the burden of proving that it is proper to do so. Merrill v. University of Vermont, 133 Vt. 101,105 (1974); 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.
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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.
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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.
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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.

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

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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
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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. 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. M. v. State of Vermont, Department of Corrections (May 13, 2008)

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M. M. v. State of Vermont, Department of Corrections (May 13, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
M. M. Opinion No. 20-08WC
By: George K. Belcher
v. Hearing Officer
State of Vermont, For: Patricia Moulton Powden
Department of Corrections Commissioner
State File No. U-11445
Hearing held on February 8, 2008 in Montpelier, Vermont.
Record closed on March 18, 2008.
APPEARANCES:
Heidi Groff, Esq., for the Claimant
Nathaniel K. Seeley, Esq., for the Defendant
EXHIBITS:
Pre-Trial Stipulation dated February 8, 2008
Joint Medical Exhibit: Medical Records of the Claimant
Claimant’s Exhibit A: Chart of Medical Opinions
Claimant’s Exhibit B: Curriculum Vitae of Dr. Mark Bucksbaum
Defendant’s Exhibit 1: Letter from K. Donahue to Mr. Seeley dated January 31, 2008
Defendant’s Exhibit 9: Insurance Claim from Dr. Bucksbaum dated January 25, 2008
ISSUES:
1. What permanent partial disability is the Claimant entitled to as a result of his work-related injury?
2. Is the Claimant entitled to reimbursement for the Functional Capacity Evaluation that was recommended by Dr. Shulman and Dr. Bucksbaum?
3. Is the Claimant entitled to reimbursement for the permanent partial disability evaluation performed by Dr. Bucksbaum (since the Claimant’s treating doctor, Dr. Shulman, does not do PPD evaluations)?
4. Are the Claimant’s chiropractic treatments following Dr. Boucher’s report of November 7, 2006 reasonable and necessary?
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FINDINGS OF FACT:
1. At the time of his injury, the State of Vermont was Claimant’s employer and the Claimant was an employee of the State of Vermont as defined in the Workers’ Compensation Act.
2. The Claimant, Myron Messeck, was born on October 23, 1954. On February 2, 2004, he was working as a corrections officer for the State of Vermont, Department of Corrections. He suffered a workplace injury when an inmate assaulted him. This was a serious assault, which caused injuries to his face, eye socket, and neck.
3. At the time of the assault, the Claimant was moving a prisoner to a lock-down cell when the prisoner struck him with his right arm. The Claimant’s memory of the incident thereafter is poor but he was taken to the Northwestern Medical Center emergency room where he was examined. The examination showed irritated right and left eye, soft tissue swelling, cut and contusion over the right eyebrow. Mr. Messeck complained of double vision (diplopia). A CAT scan was performed which showed a “trace left parietal irregularity, which may be a very tiny SDH [subdural hematoma] versus bony artifact. The CAT scan showed evidence of an internal broken eye socket or sinus cavity. He also had some blurred vision.
4. The Claimant did not return to his job with the Department of Corrections, in large part, because of concerns by medical providers that another head injury would put him at greater risk due to the injuries of the assault.
5. As of the date of the hearing, the Claimant was complaining of neck pain, back pain, headaches, diplopia, impaired lateral vision, impaired memory, impaired concentration and altered speech (speaking in a high-pitched voice). In September of 2007, the Claimant returned to work for the State of Vermont at a Vermont Welcome Center for 32 hours per week.
6. It is not disputed that the Claimant suffered a work-related injury and that his spine, facial nerve, mental functioning, and eyesight were affected by the injury. Causation is not an issue. The issue in the case primarily involves the extent of permanent impairment of the Claimant. On this, the evaluating doctors disagree.
7. Concerning the facial nerve impairment, the doctors did agree that the Claimant’s facial nerve impairment justified a 1% whole person impairment. Concerning the claim that the Claimant’s voice was affected by the injury, there was no expert evidence offered in support of this claim. The other impairments are discussed separately.
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8. The Claimant’s principal medical expert was Dr. Mark Bucksbaum. Dr. Bucksbaum is a medical doctor who is Board Certified by the American Board of Physical Medicine and Rehabilitation, the American Board of Pain Management, and the American Board of Independent Medical Examiners. He is licensed as a medical doctor in the states of Vermont, New York and Maine. See Claimant’s Ex. B. The Defendant’s principal medical expert was Dr. William F. Boucher. Dr. Boucher is a medical doctor who is licensed to practice medicine in Vermont, Maine, and New Hampshire. The bulk of his work is independent medical evaluations but he also maintains a part-time clinical practice. He is board certified in occupational medicine. The Defendant’s psychiatric expert was Dr. Albert M. Druckteinis who is a psychiatrist, medical doctor and juris doctor. He holds medical licenses in Vermont, New Hampshire, Maine, and Florida. He is board certified by the American Board of Psychiatry and Neurology, The American Board of Forensic Psychiatry, and the American Academy of Pain Management. He operates a part-time clinical practice but the bulk of his work is criminal and civil assessments and evaluations. All of the evaluators were equally familiar with the AMA Guides to the Evaluation of Permanent Impairments, 5th edition (hereinafter referred to as “the Guides”). All three experts regularly do evaluations and provide testimony in workers’ compensation cases. None of these three experts were the Claimant’s treating physician. The Claimant’s treating physician, Ned Shulman, MD, does not do permanency ratings.
Visual Impairment
9. The Claimant testified that he had double vision following the injury. He was prescribed prism lenses for his glasses, which appear to have substantially corrected the double vision. Mr. Meesick testified, however, that his left peripheral vision is still blurred and that he has trouble reading in weak light conditions and when the print is small.
10. Dr. Bucksbaum attributed a 10% whole person impairment on account of the Claimant’s vision. He made this assessment based upon a medical record which he interpreted to show an acuity impairment (20/25 right eye; 20/40 left eye; report of Dr. Fazzone dated February 9, 2005, Page 147 of the Joint Medical Exhibit). Dr. Bucksbaum used Table 12-4 of the Guides to calculate a 10% impairment of visual acuity, and Table 12-10 to calculate a ten per cent whole person impairment. (Testimony of Dr. Bucksbaum).1
1 Dr. Bucksbaum’s report of December 8, 2006 indicated that his conclusion as to vision was based on a visual examination of March 16, 2005 of Optimetrics Associates, Inc. That report showed that the corrected vision of the Claimant was 20/13 (right eye) and 20/25 (left eye).
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11. According to Dr. Bucksbaum, even if the Claimant’s visual acuity were normal, the Claimant would be justified in a 10% whole person impairment due to the diplopia, loss of reserve vision capacity and the need for a vision aid device (prism glasses). Under Sec. 12.4b of the Guides, page 298, impairment to vision other than loss of acuity or field of vision (such as double vision) can be given an impairment rating. That section states in part,
If significant factors remain that affect functional vision and that are not accounted for through visual acuity or visual field loss, a further adjustment of the impairment rating of the visual system may be in order. The need for adjustment, however, must be well documented. The adjustment should be limited to an increase in the impairment rating of the visual system (reduction of FVS) by, at most, 15 points.
12. Dr. Bucksbaum concluded that, with the Claimant’s eye examination and his “incompletely controlled diplopia with the use of prism lens, he most closely fits into the entry end of Class 2 of the vision impairment table 12-10”. Joint Medical Exhibit, Page 319.2
13. Dr. Boucher, on the other hand, attributed a 5% whole person impairment for the Claimant’s vision. Dr. Boucher discounted any vision loss due to lack of visual acuity under the Guides because visual acuity is to be measured under the Guides with the “best correction”. See Section 12.2b, Page 282. Dr. Boucher recognized that up to 15 points under the Functional Vision Score can be attributed to diplopia, but he noted that the Claimant’s diplopia was “well rectified with glasses”. His rating of 5% placed the Claimant in the middle of the Class 1 of table 12-10.
14. Dr. Bucksbaum’s use of uncorrected acuity scores does not appear to be consistent with the Guides. His rating 10% whole person impairment without loss of acuity would have required at least a 10 point Functional Vision Score for the diplopia (which would be 10 of the 15 available points).3
Cervical Impairment
15. Dr. Bucksbaum evaluated the Claimant’s neck and determined that he was entitled to 8% whole person impairment based upon Table 15-5 of the Guides. Dr. Bucksbaum did an extensive physical examination of the Claimant and noted that he had asymmetrical loss of range of motion and muscle guarding. The Claimant had a well-documented history of neck pain and headaches following the injury. Dr. Bucksbaum placed the Claimant in the high end of the range of DRE Cervical Category II from Table 15-5 of the Guides because of the neck pain and headaches. He explained that it would be possible to place the Claimant in the low end of this range (5% whole person impairment) and allocate a separate 3% for Occipital Neuralgia. Dr. Bucksbaum felt, however, that it was more efficient to simply place the Claimant at the high end of the range.
2 Dr. Buckbaum continually referred to the prism glasses as “vision enhancements”. The Guides do not support his position.
3 On February 9, 2005, Dr. Fazzone found that the prism lenses improved the vision of the Claimant and that the Claimant “has no, or minimal, double vision.” Page 146 of Joint Medical Exhibit.
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16. Dr. Boucher agreed that the Claimant fit within the same Category II and deserved a rating between 5-8%, but he placed him at 5% because “…the examinee’s cervical condition has a minimal effect on activities of daily living.”
17. The Claimant testified that he never had neck pains or problems before this injury. He now has neck pain, which radiates up into his head and causes headaches. The headaches sometimes become so severe that he develops an upset stomach. Frequently in the medical records, the Claimant’s neck pain and headaches were mentioned as significant obstacles to his ability to work and function.
Lumbar Impairment
18. The Claimant noticed lower back problems during the healing process of the other injuries. He had never had lower back problems before. He notices his lower back has pain when he sits for long periods of time or when he walks on uneven ground.
19. Dr. Bucksbaum examined the Claimant’s lower back. Dr. Bucksbaum’s examination showed abnormal range of motion in the Claimant’s lower back, and an asymmetrical range of motion. See page 313, Joint Medical Exhibit. In addition, he noted pain on palpation. The Claimant had a positive “Jolt test”, pain while walking on his toes, and “postural sway difficulty”. These indicators led Dr. Buckbaum to conclude that the Claimant had chronic mechanical low back pain caused by the injury and that the Claimant was justified in a 5% whole person impairment from Table 15-3 of the Guides for this problem.
20. Dr. Boucher also did an examination of the Claimant’s low back but approached the examination with a “low suspicion” of finding anything. Dr. Boucher measured the Claimant’s range of motion in the lumbar area once, using only one inclinometer instead of three readings using two inclinometers as recommended in the Guides.
21. Dr. Boucher noted that the Claimant’s range of motion was 20 degrees right and left lateral flexion, with normal being 25 degrees. Because the 20% reduction in flexion was equal on both sides, Dr. Boucher’s opinion was that the Claimant’s range of motion was “normal”. Dr. Boucher also noted tenderness in the lower back on palpation. Despite these findings, Dr. Boucher determined that the Claimant’s back condition was “normal” and gave a 0% impairment rating.
22. It was clear from the testimony that Dr. Bucksbaum did a much more thorough examination of the Claimant’s lower back than did Dr. Boucher. Dr. Bucksbaum’s examination was more consistent with the criteria set forth in the Guides.
Mental Condition
23. The Claimant complained of memory problems following the injury. His ability to focus seemed to be less. He had problems sleeping. He was worried that he might leave a store or public place and forget to take his daughter with him, so he always asked that she stay with him in public.
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24. Dr. Bucksbaum diagnosed the Claimant as having Traumatic Head Injury/Post-concussion syndrome. He rated the Claimant as having a whole person impairment of 8% whole person impairment based upon Table 13-6 of the Guides. This table gives a range of whole person impairment from 1% to 14% for impairment related to mental status after evaluating memory, orientation, judgment and problem solving, community affairs, homes and hobbies and personal care. Clearly, Dr. Bucksbaum was rating the Claimant based upon the belief that the Claimant had a subdural hematoma or concussion. See page 319 of Joint Medical Exhibit. Dr. Bucksbaum noted that his assessment of impairment under Chapter 13 was “consistent with a Class II impairment rating under chapter 14; mental and behavioral disorder.” Id. He also emphasized that it was the impairment which was being rated and not the underlying cause, regardless of whether the cause was physiological or emotional.
25. Chapter 13 of the Guides is used to rate impairment of the central and peripheral nervous system. “Chapter 13 provides criteria for evaluating permanent impairment due to documented dysfunction of the brain, cranial nerves, spinal cord, nerve roots, and/or peripheral nerves and muscles.” Page 305 of the Guides.
26. Chapter 14 is used to evaluate the impairment of mental and behavioral disorders. This chapter of the Guides does not include percentage impairments. According to the Guides, “Numerical impairment ratings are not included, however, instructions are given for how to assess an individual’s abilities to perform activities of daily living.” See page 357 of the Guides. “The use of percentages implies a certainty that does not exist.” Page 361 of the Guides.
27. Dr. Drukteinus saw the Claimant for evaluation on February 22, 2005, January 13, 2006, and again on March 30, 2007. Dr. Drukteinus reviewed the medical records of the claimant and he administered various psychological tests. Dr. Drukteinus was doubtful that the Claimant actually suffered a subdural hematoma and was of the opinion that the Claimant did not have a traumatic brain injury or residual post-concussion syndrome. Rather he determined that the Claimant was suffering from anxiety disorder and adjustment disorder with depressed mood. He believed that these conditions were causally related to the injury and that the Claimant was at medical end result.
28. Because the Guides do not use percentages in Chapter 14 assessments, Dr. Drukteinus looked to the Colorado system of rating mental impairments. Under this system of percentage allocation, and, considering that the Claimant’s mental condition was in partial remission, he calculated that the Claimant’s impairment was minimal to mild and that it deserved a rating of 5% whole person impairment. Dr. Drukteinus left open the possibility of an additional award for pain, but felt that the pain question should have been taken into account with the other medical impairment assessments.
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Functional Capacity Examination
29. Dr. Ned Shulman (the primary care physician) recommended to the Department on October 19, 2006 and May 11, 2007 that the Claimant have a Functional Capacity Examination. Pages 257 and 329, Joint Medical Exhibit. Dr. Shulman did not testify in this case as to why he wanted the Claimant to have a functional capacity examination. Before he made these recommendations, Dr. Shulman made a fairly detailed evaluation of the Claimant’s work capacity, including lifting capacity, in a letter dated September 6, 2006. Joint Medical Exhibit, Pages 250-252. The emphasis in his letter was upon his diagnosis of “post traumatic stress disorder”.4 It is unclear in the record why Dr. Shulman felt a functional capacity examination would assist him or the Claimant.
30. Dr. Bucksbaum recommended in his report of December 8, 2006 that the Claimant could benefit from a functional capacity examination. Joint Medical Exhibit, page 320. His recommendation was that an FCE could assist in determining his work tolerances. Dr. Bucksbaum felt that the Claimant’s plan of becoming a commercial truck driver was “likely above his work limits”. Id. Dr. Peyser had determined on August 3, 2006 that, “There is no reason why Mr. Meeseck could not be employed as a truck driver.” Page 243 Joint Medical Exhibit. Dr. Drukteinus came to the same conclusion on April 5, 2007. Page 328, Joint Medical Exhibit. Dr. Todd Faxvog, Chiropractor, also thought commercial driving was feasible, at least for a trial. Page 246, Joint Medical Exhibit.
31. The Commissioner takes judicial notice under Vermont Workers’ Compensation and Occupational Health Rule 7.1800 of the Vocational Rehabilitation forms in the Department’s file. The Claimant was found to be eligible for vocational rehabilitation services on September 8, 2004. On February 28, 2007 Vocational Rehabilitation Counselor, Wayne Sullivan, reported that he and Mr. Meesek had agreed to place the Vocational Rehabilitation file on “suspension” for six months so that the Claimant’s employment status with the State of Vermont could be determined. It appears from the records that the vocational rehabilitation counselor had not requested the FCE, and, in fact, the vocational rehabilitation case was in “suspension” at the time the FCE was performed. See Department File, Wayne Sullivan Voc. Rehab. Report of February 28, 2007. No Individual Written Rehabilitation Plan was ever formulated by the counselor.
32. The Claimant participated in a functional capacity examination on July 20, 2007. He paid the expense of this and would now like this expense ($1,500.00) to be assessed against the employer. The FCE determined that the Claimant had a medium, full-time work capacity. See page 353, Joint Medical Exhibit.
4 This diagnosis was consistently made by Dr. Shulman as late as August, 2007, (Page 362, Joint Medical Exhibit) despite the conclusions by Dr. Drukteinis, Janis M Peyser, PhD, Dr. Steve Sobel, that this diagnosis did not apply to the Claimant. See pages 179, 249, and 327, Joint Medical Exhibit.
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Ongoing Chiropractic Care
33. Dr. Shulman recommended in July of 2005 that the Claimant see a chiropractor. Page 301, Joint Medical Exhibit. The Claimant has regularly seen Dr. Todd Faxvog about every two weeks. During the visits he regularly has a manipulative adjustment and moist heat packs. He also receives a massage after the chiropractic treatment. The Claimant testified that the adjustments and massages help him with coping with his neck and back pain and doing his activities. The chiropractic treatments seemed to help him with his headaches as well. When he must miss an appointment, he finds that it is very difficult to last until the next appointment.
34. Dr. Bucksbaum testified that the chiropractic treatment was palliative and helpful to the Claimant in coping with his pain without medication. His opinion was that this treatment was reasonable. Dr. Shulman originally recommended the chiropractic treatments in July of 2005. His medical notes of May 18, 2006 indicated that Dr. Shulman thought that the Claimant will “most likely need to continue treatment such as chiro indefinitely.” Page 231, Joint Medical Exhibit. On May 22, 2006 Dr. Shulman’s notes state that, “I am aware he continues with Dr. Faxvog on weekly basis for correction and ideal resolution of cephalgia.” Page 232, Joint Medical Exhibit. Neither Dr. Bucksbaum or Dr. Shulman addressed the need for massages as a separate, on-going treatment.
35. Dr. Boucher testified that the chiropractic treatments and massages probably made the Claimant feel better immediately afterward, but that the treatments did not improve function and would not be missed if they were discontinued for several months. In his report at page 271 of the Joint Medical Exhibit, Dr. Boucher stated,
As regards to the examinee’s neck pain, further chiropractic adjustments are not indicated. Studies have shown that manipulative therapies can be helpful in the acute phase of injury, but are not helpful in the chronic situation. In this case, the examinee has no ongoing benefit (i.e. improvement) from current chiropractic adjustments and further adjustments are neither reasonable or necessary.
36. Dr. John Peterson, D.O. did a medical evaluation of the Claimant on October 31, 2005. His report questioned the frequency of the chiropractic treatments but acknowledged that the Claimant seemed to benefit from them and that they might be serving a “palliative” purpose. Page 208, Joint Medical Exhibit.
Costs and Attorneys Fees
37. The Claimant incurred litigation costs in this matter of $1,201.00. This amount excludes Dr. Bucksbaum’s permanency assessment which is dealt with in paragraph 49 and it does not include the $1,500.00 paid for the functional capacity examination. The Claimant has entered a contingent fee agreement with his counsel calling for attorney’s fees of 25% of the gross award.
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CONCLUSIONS OF LAW:
1. In Worker’s Compensation cases the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963). The claimant must establish by sufficient credible evidence the character and extent of the injury and disability as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984).
2. Under Vermont practice, impairments to various body parts and functions are rated pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment. 21 VSA Sec. 648(b); Workers’ Compensation Rule 11.2210. The application of the Guides in this case is a complex matter which can be confusing at times, even to the experts. The experts in this case agreed on only one of the claims of impairment: the facial nerve impairment.
3. Where the claimant’s injury is obscure, and the layman could have no well-grounded opinion as to its nature or extent, expert testimony is the sole means of laying a foundation for an award for both compensability issues as well as the extent of the award sought. Lapan v. Berno’s Inc., 137 Vt. 393 (1979). The Claimant’s complaint concerning his voice alteration must be denied since no expert testimony was offered to support it.
4. When choosing between conflicting medical opinions, the Department has looked at several factors: (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. 37-03 WC (Sept. 17, 2003).
5. Here Drs. Bucksbaum and Boucher have similar experience, education, and history with the Claimant. Both appear to have examined all the pertinent records.
6. Concerning the vision impairment, I find that Dr. Boucher offered the most clear and thorough analysis of the vision impairment. His rating of a 5% whole person impairment for vision loss was more consistent with the language of the Guides, including the use of corrected vision capability.
7. Concerning the cervical impairment, I find that Dr. Bucksbaum’s analysis was more persuasive since he gave due consideration to the Claimant’s headaches and pain. Dr. Boucher seemed to downplay the continued pain and neck soreness which appears constantly through the medical records and which was never seriously questioned as to its veracity. Dr. Buckbaum’s rating of 8% whole person impairment is more thorough and supported.
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8. Concerning the lumbar impairment, I find that Dr. Bucksbaum’s examination was significantly more thorough than that of Dr. Boucher. The examination provided a basis for Dr. Bucksbaum’s opinion which makes his opinion the more persuasive. His rating of 8% to the lumbar spine is accepted.
9. Concerning the evaluation of mental impairment, I find that Dr. Drukteinus had more information due to his examination of the Claimant at three different times over a longer period of time. Moreover, his diagnosis of adjustment disorder and anxiety disorder was supported by other evaluations and was more credible. I find that the qualifications and experience of Dr. Drukteinus in rating a mental or neurological impairment is superior to that of Dr. Bucksbaum. Dr. Drukteinus convincingly refuted Dr. Bucksbaum’s diagnosis of traumatic brain injury/post concussion disorder. Dr. Drukteinus’ rating of a 5% whole person impairment is the more cogent assessment. 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).
10. The various impairments are combined pursuant to Workers’ Compensation Rules 11.2200, 11.2300, and the Combined Values Chart of the Guides. The vision impairment of 5%, plus mental impairment of 5%, plus nerve impairment of 1% equal 11% whole person impairment, times 405 weeks, to equal 44.55 weeks. The spine impairment is: 8% cervical impairment, plus 5% lumbar impairment, for a total of 13% whole person impairment, times 550 weeks, to equal 71.5 weeks. The total permanent partial impairment award is 116.05 weeks of benefits.
11. The Claimant asks that the expense of Dr. Bucksbaum’s permanency assessment be paid by the Defendant. According to Workers’ Compensation Rule 11.2400,
It shall be the employer’s responsibility to pay for at least one permanency examination and impairment rating from the claimant’s treating physician, notwithstanding its decision to obtain a rating from another medical examiner as well if it so desires. All impairment ratings received by the employer shall be copied to the claimant or [to] his or her attorney. At the commissioner’s discretion, the employer may be ordered to pay for additional permanent impairment evaluations.
12. Since Dr. Shulman did not do permanency evaluations, it made sense for someone with familiarity with the Guides to do such an evaluation. Both Dr. Bucksbaum and Dr. Boucher agreed that a thorough record review and examination of the Claimant would be necessary for an assessment of permanent impairment. The rule’s reference to “treating physician”, should not bar the Claimant from having at least one evaluation paid for by the employer which is independent from the employer’s own expert. The Commissioner has, on occasion, exercised her discretion to order that such evaluations be paid for by the employer. See Sanz v. Collins, Opinion No. 25-05 WC (April 26, 2005). In this case it is appropriate for the employer to pay for Dr. Bucksbaum’s assessment ($2,160.00). The Commissioner approves it, in her discretion, for payment by the Defendant.
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13. The Claimant also asks that the Defendant pay for the functional capacity examination. Although the Claimant’s treating physician recommended that such an examination be done, it was not proven that this was needed for treatment. In fact, it is unclear why it was needed at all. The Claimant had been cleared by most of the evaluators to do the job of truck driver. Although, Dr. Bucksbaum questioned that conclusion, he was evaluating the physical impairment of the Claimant and he was not structuring an employment plan.
14. The Claimant has cited no express authority by which the Defendant can be ordered to pay for a functional capacity examination. Such examinations are often ordered as part of a vocational rehabilitation plan, but in this case the vocational rehabilitation program was “suspended” with the approval of the Claimant.
15. The Commissioner has concern that if Employers are to be charged with the expense of functional capacity examinations, then the necessity for such an examination should be shown as a clear medical purpose or as part of a vocational rehabilitation assessment/plan as contemplated by the statute. 21 VSA Sec. 641. Otherwise, such examinations might become a routine tactic in litigation preparation. In this case, there was no clear medical need for the functional capacity examination. There was no evidence that the vocational rehabilitation counselor asked for this evaluation. The Defendant should not be charged for it. Other facts in other cases might justify such an order, but not here.
16. The Claimant has shown through his own testimony, the testimony of Dr. Bucksbaum, and the report of Dr. Peterson, that the ongoing chiropractic treatments have a beneficial, palliative affect. They benefit the Claimant by relieving his pain, without the need for additional medication. They assist in his maintenance of function. They are recommended by the treating physician, Dr. Shulman. Under prior rulings of the Commissioner, continuing chiropractic care may be ordered when recommended by persuasive medical authority. See Forrest v. Rockingham School District, Opinion No. 30-96 WC (May 16, 1996), but see also Burnah v. Carolina Freight Carriers, Opinion No. 37-98 WC (June 28, 1998). The weight of the evidence in this case is in favor of the compensability of such treatments as a palliative measure.
17. The Claimant seeks costs which are mandatory under 21 VSA Sec. 678. (The costs allowed in this case do not include Dr. Bucksbaum’s permanency assessment since that is being awarded under a different rule and costs do not include the cost of the FCE since that has been determined to be unrelated to this litigation and not recoverable under other provisions.) Recoverable costs are $1,201.00.
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18. An award of interest is mandatory under 21 VSA Sec. 664 from the date on which the employer’s obligation to pay compensation began. The evidence does not reflect the specific amount of the chiropractic bills, nor the amounts paid by the Claimant or his insurer. Likewise the dates upon which permanent partial disability payments have become due is unclear from the record. Under the statute I conclude that the Defendant is obligated to reimburse Claimant for any amounts he paid, along with interest at the statutory rate from the date of payment forward. The defendant is obligated to reimburse any third party payors as well, including interest charges or other late payment penalties assessed by them. To the extent that the Claimant is entitled to permanent partial disability benefits which were due according to this order but which have not yet been paid, the Defendant is obligated to pay interest from the due date to the date of payment.
19. In the discretion of the Commissioner, the prevailing party may be awarded “reasonable” attorney fees. 21 VSA Sec. 678 (a). Rule 10.1000 Vermont Workers’ Compensation and Occupational Health Rules. The Commissioner has discretion as to whether to base an award of attorney fees on either an hourly or contingency basis. Rule 10.1200 Vermont Workers’ Compensation and Occupational Health Rules. The Claimant prevailed in this formal proceeding on four of the seven issues presented (lumbar spine impairment, cervical spine impairment, permanency rating recovery, and chiropractic care). While counsel for the Claimant submitted a copy of the contingency fee agreement, she did not submit any evidence of her itemized time. In past cases, the Commissioner has weighed various factors in making determinations of reasonableness of attorney fees including the difficulty of the issues involved, the results achieved, the time and effort expended and whether the claim for fees is proportional to the efforts of the attorney. See Estate of Lyons v. American Flatbread, Opinion No. 36A-03 WC. Without some evidence as to the time and effort expended, the Commissioner cannot in this case make a reasoned decision as to the reasonableness of attorney fees. Accordingly, the record should remain open for the Claimant to submit such evidence. See Estate of Roland Pion v. Vermont Asbestos Group, Inc. Opinion No. 02R-07 WC.
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ORDER:
Therefore, based upon the foregoing findings of fact and conclusions of law, the Commissioner determines that the Claimant’s claim for workers’ compensation benefits, is approved in part and the Defendant is ORDERED to pay:
1. Permanent Partial Impairment benefits of 11% whole person impairment not related to the spine (vision 5%; facial nerve 1%; mental condition 5%) and spine impairment of 13% whole person impairment (8% cervical and 5% lumbar) for a total of 116.05 weeks of permanent partial disability benefits;
2. Dr. Bucksbaum’s permanency assessment cost of $2,160.00;
3. Litigation costs of $1,201.00;
4. Unpaid chiropractic bills;
5. Interest upon any of the items in paragraphs 1, 2, and 4 at the legal rate from the date the charges were incurred as set forth in paragraph 55 above;
6. Claimant’s attorney may submit to the Department with a copy to the Defendant, within 30 days of the date of this order, an itemized statement of the time expended and the work performed. The Defendant shall have 10 days from the date of receipt to file any objection to the submission. The Commissioner will then act upon the issue of attorney fees.
Dated at Montpelier, Vermont this 13th day of May 2008.
____________________________
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. Sec. 670, 672.

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
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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.

R. P., Estate of R. P., H. P. v. Vermont Asbestos Group (January 23, 2007)

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

R. P., Estate of R. P., H. P. v. Vermont Asbestos Group (January 23, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
R. P., Estate of R. P., Opinion No. 02-07WC
H. P.
By: Margaret A. Mangan
v. Hearing Officer
Vermont Asbestos Group, Inc. For: Patricia Moulton Powden
and St. Paul Travelers Commissioner
Insurance Company
State File No. X-01358
Pre-trial conference held on June 5, 2006
Hearing held in Montpelier, Vermont on September 22, October 26, 27, and 30, 2006
Deposition of Dr. Craighead taken on November 3, 2006
Record closed on September 7, 2006
APPEARANCES:
Robert G. Cain, Esq. for Claimants
Andrew C. Boxer, Esq. and J. Justin Sluka, Esq. for Defendants
ISSUES:
1. Did R. P. (Claimant) suffer a work-related injury to his lungs as a result of his work for Vermont Asbestos Group?
2. If so, was R. P. disabled from work as a result of his work-related lung injury?
3. Did R. P. suffer any permanent impairment as a result of his work-related lung injury?
4. Was R. P. permanently and totally disabled from work as a result of his work-related lung injury, and, if so, what was the duration of his permanent total disability?
5. Was R. P.’s death on August 31, 2006 caused by his work-related lung injury?
EXHIBITS: lists are appended to the end of this opinion
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CLAIM:
Claimant seeks a determination that he suffered a compensable injury of asbestosis or asbestos-related pulmonary fibrosis as a result of his employment with VAG; that his compensable work-related injury rendered him permanently and totally disabled; that he is entitled to medical benefits pursuant to WC Rule 40 for the treatment of his asbestosis or asbestos-related pulmonary fibrosis; that his work-related lung disease caused his death, entitling his sole dependent, his widow, to dependent’s benefits; that his Estate is entitled to statutory funeral and burial expenses; and, if successful, an award of attorneys’ fees and costs of the litigation process, and interest on benefits owed.
FINDINGS OF FACT:
1. Official notice is taken of all Department forms.
2. R. P. worked for Vermont Asbestos Group, Inc. (VAG) and its predecessors in interest from 1959 through August 4, 1994, with a brief absence for nine months in 1962-1963.
3. VAG was R. P.’s employer for purposes of the Workers’ Compensation Act.
4. As of August 4, 1994, R. P. was an employee of VAG within the meaning of Vermont’s Workers’ Compensation Act.
5. As of August 4, 1994, VAG was the employer of R. P. within the meaning of Vermont’s Workers’ Compensation Act.
6. August 4, 1994 was R. P.’s last day of work for VAG.
7. R. P.’s hourly wage at VAG when he stopped working as of August 4, 1994, was $8.44 per hour, and Mr. P. consistently and regularly worked a 40 hour week at that wage for the time period preceding August 4, 1994, resulting in weekly wages of $337.60.
8. Defendants never produced a Form No. 25 Wage Statement for R. P. According to the First Report of Injury filed by the employer, R. P. worked eight hours per day, five days per week.
9. H. P. is R. P.’s wife and widow.
10. R. P. stopped working on July 21, 2004 because of his worsening lung disease.
11. Between July 21, 2004 and the date of his death on August 31, 2006, R. P. was totally disabled from work due to his lung disease.
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12. Prior to having to stop all work in late July 2004, due to his progressively worsening lung disease, R. P. averaged $407.68 per week as an employee of Northeast Ag Sales.
13. In April, 2004, Mr. P.’s primary care physician, Dr. Peter Harris, set up a pulmonary consult for Mr. P’s, for further evaluation and management of chronic obstructive pulmonary disease and a chronic cough that Dr. Harris had been following since late 2003. The pulmonary consult was set up with Dr. Veronika Jedlovszky, a pulmonologist at North Country Hospital.
14. By the summer of 2004, Dr. Jedlovszky determined that Mr. P. most likely was suffering from asbestos-related pulmonary fibrosis.
15. Mr. P’s lung disease progressively worsened from the time that he was forced to stop working in late July, 2004, until December, 2005, at which time Dr. Jedlovszky put Mr. P on oxygen on a full-time basis, 24 hours per day, seven days per week.
16. On or about December 1, 2005, Mr. P filed a Form No. 5 Notice of Injury and Claim for Compensation.
17. On or about December 27, 2005, St. Paul Travelers Insurance Company, the workers’ compensation carrier for VAG, declined Mr. P’s claim, asserting that his claim was barred by the Occupational Disease Act’s statute of limitations.
18. On or about December 29, 2005, Mr. P filed a Form No. 6 Notice and Application for Hearing.
19. On or about January 26, 2006, Attorney Andrew Boxer entered his appearance on behalf of St. Paul Travelers and VAG, and, at that time, asserted that Mr. P’s claim was barred by the ODA’s statute of repose because, “all activities at the company ceased on April 24, 1994.”
20. In fact, Mr. P, remained working at VAG until August of 1994.
21. Mr. P was last injuriously exposed to asbestos after July 1, 1994.
22. After her February 23, 2006 Pulmonary Clinic note, Dr. Jedlovszky referred R. P. to Dr. Gerald Davis, a pulmonologist at Fletcher Allen Health Care who sub-specializes in dust-related lung diseases, for a second opinion pulmonary consultation. Dr. Davis examined Mr. P’s medical records, including x-rays and CT scans, and performed a full physical examination of Mr. P on May 9, 2006. At the conclusion of his work-up, Dr. Davis concluded that, “I have a very high level of confidence in establishing a diagnosis of asbestosis or pulmonary fibrosis secondary to asbestos fiber exposure.” According to Dr. Davis, Mr. P exhibited typical clinical symptoms of asbestosis, Mr. P’s radiologic studies were characteristic of asbestosis, and Mr. P’s significant 34 year history of exposure to asbestos fibers clearly pointed to a diagnosis of asbestosis.
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23. There was an objective basis for a clinical diagnosis of asbestosis in this case, including respiratory crackles heard on multiple examinations, significant changes in Mr. P’s ventilatory function, significant impairment of Mr. P’s gas exchange, and clubbing of Mr. P’s digits.
24. Subsequently, Mr. P’s radiologic studies were examined by Dr. Jeffrey Klein, a radiologist from FAHC who sub-specializes in chest radiology, and who had previously been involved in Mr. P’s care. Dr. Klein rendered an opinion that Mr. P’s radiologic studies were consistent with a diagnosis of asbestosis. Dr. Klein agreed with Dr. Davis’ conclusion that Mr. P was suffering from work-related asbestosis.
25. Next, Claimant retained Dr. Kelly Butnor, a pathologist from FAHC who sub-specializes in pulmonary pathology, to confirm the validity of the opinions previously rendered by Dr. Jedlovszky, Dr. Davis and Dr. Klein. After a full record review of the case, including examination of the pathology taken from Mr. P, Dr. Butnor concluded that there was no basis to draw any conclusions based on the pathology in the case, and that Drs. Jedlovszky, Davis and Klein were correct in concluding that Mr. P was suffering from asbestosis, based upon his clinical picture, the radiologic studies, and the documented history of asbestos exposure.
Claimant’s Asbestos Exposure
26. The mine at issue, located at Eden-Lowell, Vermont, historically was one of the largest United States’ producers of asbestos fibers.
27. In the mid-1920s, the Vermont Asbestos Mine was formed to mine and mill the asbestos ore body. Vermont Asbestos was acquired in 1936 by the Rubberoid Company, a leading producer of asphalt and asbestos building materials. In 1967, the Rubberoid Company merged with General Aniline & Film Corporation (GAF).
28. In 1974, GAF announced its intention to close the mine, due to the large costs needed to implement dust control measures required by the EPA. The then current employees of the mine formed Vermont Asbestos Group, Inc. (VAG), and in March 1975, VAG purchased the mine operation from GAF. Over time, the principal shareholder, Howard Manosh, acquired a controlling interest in the corporation.
29. VAG continued to operate the asbestos mine until the end of 1994, at which time the operations were closed. VAG discontinued actively mining ore from the quarries in approximately 1992, however, because of the large stock of asbestos fiber in inventory, VAG continued to process and reprocess bags of asbestos fibers, continued to operate the mill, continued trucking and shipping bags of asbestos fibers, and continued to warehouse bags of asbestos fiber.
30. The VAG asbestos mine had the capacity for processing about 150 tons of ore per hour, and the mine produced about 30,000 tons of asbestos fiber, of all grades, per year. The mill itself had a floor area of 65,000 square feet.
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31. For commercial purposes, asbestos fiber is graded as to lengths. VAG produced over a dozen different grades of asbestos fiber, the shortest being the so-called floats, which resembled a talcum powder-like substance, and the longest being the so-called Hooker one grade, which constituted fibers more than an inch in length. In addition, VAG routinely purchased from the asbestos mines in Quebec, including the mine at Thetford, Quebec, longer grades of fiber to mix in with the shorter fibers produced at the Vermont mine. The Quebec asbestos mines and the VAG mine both produce primarily chrysotile asbestos fiber. Both are also contaminated with tremolite that is considered generally to be more pathogenic than pure chrysotile fiber.
32. The asbestos fiber at VAG was packaged in one hundred pound bags of paper or plastic weave, bags in which the fiber was compressed to less than one-half its normal volume. The bags contained minute perforations to assist in compressing the bags.
33. Claimant began working at the VAG asbestos mine1 in 1959, starting as a bagger in the bagging area of the mill building. He continued to work in that capacity through 1962 then left the mine employment for approximately nine months, before returning in 1963. From the time of his return in 1963 through approximately 1970, Claimant continued working as a bagger in the bagging area of the mill. From approximately 1970 through approximately 1978, Claimant worked in the shipping department of the warehouse where he handled bags of asbestos. At least once per day, one of these bags would be broken and Claimant would frequently be covered with fibers at the time. He frequently had to “blow himself off” to get rid of the dust before going home. From approximately 1978 through approximately 1989, Claimant drove large trucks in the quarry, bringing asbestos ore from the open pit mine to the crusher near the mill. From approximately 1989 to August 4, 1994, Claimant drove a tractor-trailer bringing asbestos products from the mill in Lowell to the warehouse in Morrisville. During that work as a tractor-trailer driver, Claimant also handled the asbestos materials, loading them on and off the trailers, and he had daily exposure to asbestos fiber.
34. During the last months that Claimant was employed at VAG, he drove tractor trailers loaded with asbestos fibers, helped load and unload bags of asbestos fibers, handled the inventory of asbestos in the warehouse, helped ship the asbestos from the warehouse, reprocessed bags of asbestos fibers in the mill, and cleaned up asbestos dust at the mill building. During Claimant’s last two days of employment, August 3 and 4, 1994, he was assigned to sweeping up asbestos dust at the mill building, including asbestos dust on the beams and on the floors.
35. Claimant was a life-long non-smoker. He did not have any occupational or environmental exposures to respiratory toxicants other than his thirty-four years of working with asbestos at the VAG mine.
1 References to “asbestos mine,” “VAG Mine,” and similar references, are meant to refer to all aspects of the mine operations conducted by VAG and its predecessors, including the quarries, pits, waste piles, mill, administrative buildings, warehouse, road system, machinery, and equipment.
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36. Throughout Claimant’s thirty-four year working history at the VAG mine, he worked at virtually every aspect and area of the operations. Over that period, Claimant consistently worked 40 hours or more per week, generally taking only one or two weeks of vacation per year.
37. Claimant’s exposure to airborne asbestos dust was heavy and it was pervasive. There was no job that Claimant performed at the mine that protected him from asbestos dust exposure, although Claimant wore masks that were available in “heavy” asbestos areas.
38. The respiratory protection provided and used at the mine was inadequate and insufficient to protect the employees from hazardous levels of asbestos dust. Until GAF purchased the mine in the mid-1960s, there was little in the way of dust control measures or dust protection for the employees. After GAF purchased the mine in the mid-1960s, paper dust masks were used on a discretionary basis in “heavy dust areas.” The paper dust masks were inadequate protection from asbestos dust.
39. Not until the early 1970s were respirators introduced. VAG began using respirators at that time, however, the first type of respirator used, the Dustfoe 77, was insufficient protection. In addition, VAG never employed and enforced a respirator use policy that adequately protected its workers, including Claimant, from the hazards of asbestos dust. With VAG’s acquiescence, the workers typically utilized respirators on a discretionary basis only in “heavy dust areas.” The practice of wearing the masks only protection resulted in exposing the workers, including Claimant, to unreasonable, heavy and hazardous levels of asbestos dust.
40. It was discovered at the deposition of Dr. Craighead, Defendant’s expert, taken on November 3, 2006, and after the Formal Hearing had been conducted before the Hearing Officer, that Dr. Craighead has records from the Vermont Department of Environmental Hygiene that specifically relate to the determinations of the asbestos dust concentrations at VAG’s mine. Furthermore, Dr. Craighead revealed that he had informed Attorney Boxer not only of the existence of the Vermont Department of Environmental Hygiene records regarding asbestos dust concentrations at the VAG mine, but also that Dr. Craighead had copies of those records in his files. Dr. Craighead testified that the governmental documents regarding air quality were not produced because he made the subjective determination that the air quality studies “was a poorly done job,” and therefore he unilaterally determined that the records were “not relevant.”
41. Dr. Craighead conceded that the air quality records from the Vermont Department of Environmental Hygiene, which were in his records in his office, demonstrated excessive levels of airborne asbestos at the Vermont mine “in some determinations, but not all.” Dr. Craighead agreed that the governmental records that he had but did not produce could show excessive levels of airborne asbestos at the Vermont mine more than fifty percent of the time.
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42. The testimony from Claimant and co-employees, who were all long-term employees at the asbestos mine, clearly demonstrated that the employees’ exposure to asbestos dust was regular and pervasive. Their testimony also clearly established that the concentrations of asbestos dust that the workers were regularly subjected to were heavy, excessive and beyond safe levels.
43. The testimony from Claimant’s numerous fact witnesses also established that neither VAG nor its predecessors ever adopted and enforced any worker inhalation protection policy that served to effectively screen out hazardous asbestos dust.
44. Although Defendants produced earlier in this proceeding an Affidavit from Richard Parker, who was identified by Defendants as VAG’s “Safety Director,” and even though Defendants initiated Mr. Parker’s deposition during the discovery phase of this case, Defendants elected not to call Mr. Parker as a fact witness at the time of the Formal Hearing.
45. Mr. Parker revealed at his deposition that at least six of the paragraphs in his twenty paragraph Affidavit are false.
46. In light of his deposition testimony, Claimant called Mr. Parker as a fact witness at the time of the Formal Hearing. Mr. Parker, identified as VAG’s Safety Director from approximately 1978 to 1985, corroborated the testimony of Claimant’s fact witnesses that the airborne asbestos at the mine was regular, pervasive, and heavy, and that VAG employed a relaxed attitude and policy with respect to the use of respirators (once they were finally implemented to some degree). In fact, Mr. Parker noted that even he was heavily exposed to asbestos during the times that he worked as a bagger. Mr. Parker also confirmed that even he did not use a respirator to any significant degree.
47. There is no evidence to show that R. P. ever used the so-called “Comfo” respirator, or that he was ever required to use one. He wore either a dust paper mask or a “Dustfoe 77” respirator; he wore those methods of dust protection as much or more as anyone at the mine; he often wore his dust mask or respirator around his neck, whereas other workers would not even carry a respirator on their person; and that he wore the dust mask or respirator over his face for dust protection on a discretionary basis when the dust was “heavy,” or when he was in a “respirator zone.”
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Medical Expert Evidence
For Claimant:
48. Four medical experts testified for Claimant, with expertise and specialties in pulmonology, chest radiology, and pulmonary pathology.
49. Dr. Veronika Jedlovszky is a board certified pulmonologist from North Country Hospital, and Claimant’s primary treating pulmonologist. She is the Medical Director of Critical Care Services and Respiratory Care Services at North Country Hospital, as well as the Pulmonology/Sleep Medicine Clinic at the Hospital. Dr. Jedlovszky does not specialize in the area of dust-related lung diseases, and she is not published in that area, including asbestos-related lung diseases. Dr. Jedlovszky is a full-time, active clinician, and she oversaw Claimant’s care from a pulmonary standpoint from April 2004 to the time of Claimant’s death on August 31, 2006. Dr. Jedlovszky prepared and signed Claimant’s death certificate.
50. Dr. Gerald Davis is an experienced board certified pulmonologist who practices at Fletcher Allen Health Care. He is a Professor of the Department of Medicine at the University of Vermont Medical School, and was the long-time Director of the Pulmonary Disease and Critical Care Medicine Unit of the University’s Department of Medicine. Dr. Davis has an active clinical practice at FAHC. He has significant teaching responsibilities at the University of Vermont’s College of Medicine, and he has significant research responsibilities. Dr. Davis sub-specializes in the area of dust-related lung diseases, and he is published in that area, including asbestos-related lung diseases. Dr. Davis’s research and publications based on that research has been continuous, up through the present.
51. Dr. Davis was one of Claimant’s treating physicians. Dr. Jedlovszky referred Claimant to Dr. Davis for a second opinion pulmonary consultation, and, in conjunction with that, Dr. Davis performed a complete work-up of Claimant, including a review of his medical records, review of Claimant’s radiologic studies, and a complete physical examination of Claimant.
52. Dr. Jeffrey Klein is a board certified radiologist who practices at Fletcher Allen Health Care. As with Dr. Davis, Dr. Klein has a very active clinical, teaching and research practice. Dr. Klein sub-specializes in the area of chest or thoracic radiology, and he is well known in that area. He is widely published in the area of pulmonary diseases, he is the Chief of Thoracic Imaging at the University of Vermont College of Medicine’s Department of Radiology, and he was the first recipient of the A. Bradley Soule and John P. Tampas Green & Gold Professor of Radiology Fellowship at the University of Vermont College of Medicine. Dr. Klein’s active clinical, teaching and research practice has continued unabated up to the present. Dr. Klein was involved in Claimant’s medical care before this litigation was instituted, and therefore may be considered a treating physician.
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53. Dr. Kelly Butnor is a board certified pathologist in anatomic and clinical pathology. Among other professional organizations, she is a Fellow of the College of American Pathologists. She is an attending surgical pathologist at Fletcher Allen Health Care, and, as with Drs. Davis and Klein, has an active medical practice that combines extensive clinical service, extensive teaching responsibilities, and extensive research in her field.
54. Dr. Butnor is a sub-specialist in pulmonary pathology. She is published in the area of asbestos-related lung diseases. She was the primary author of the chapter “Cytopathology of Asbestos-Associated Diseases,” in Professor Roggli’s oft-cited book, Pathology of Asbestos-Associated Diseases,” a text that was published in 2004.
55. Although Dr. Butnor did not treat him, Claimant’s treating physicians referred him to Dr. Butnor for an opinion in this case, in light of her highly specialized and current knowledge in the field of pulmonary pathology and the area of asbestos-related lung diseases.
56. All four medical experts presented by Claimant are of the professional opinion that R. P. contracted asbestosis or asbestos-related pulmonary fibrosis as a result of his work-related exposure at the VAG asbestos mine, and that his death was the direct result of his work-related asbestosis or asbestos-related pulmonary fibrosis.
57. The most authoritative source on this subject is the 2004 Official Statement of the American Thoracic Society (ATS) entitled, “Diagnosis and Initial Management of Non-Malignant Diseases Related to Asbestos.” The ATS Official Statement delineates the criteria for the diagnosis of non-malignant lung disease related to asbestos.
58. Claimant met the criteria for asbestosis or asbestos-related pulmonary as evidenced by imaging studies, clinical signs of lung pathology, environmental exposure to asbestos for 34 years, and the exclusion of alternative diagnoses such as emphysema.
59. The only biopsy sample available in this case was too small to render a diagnosis. But given the affirmative findings listed above, a pathology specimen was not necessary for the diagnosis.
60. Ther one pathologic specimen was a transbronchial biopsy specimen taken in the course of a bronchoscopy performed by Dr. Jedlovszky in June, 2004 when bronchial washings and brushings were done. It was not intended to diagnosis any type of pulmonary fibrosis. In fact, it is generally accepted that a transbronchial biopsy is an insufficient specimen.
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61. The diagnosis of idiopathic pulmonary fibrosis is a diagnosis of exclusion. It is appropriate only when all other diagnoses can be excluded. All four of Claimant’s medical experts believe that the diagnosis of idiopathic pulmonary fibrosis is inappropriate in this case, because the diagnosis of asbestosis or asbestos-related pulmonary fibrosis cannot and should not be excluded. The diagnosis of asbestosis cannot be excluded under the criteria delineated in the ATS’s Joint Statement regarding the diagnosis of non-malignant diseases related to asbestos, and also cannot be excluded using other commonly accepted medical knowledge and authorities.
62. Drs. Davis and Butnor, who have particular and current expertise with respect to asbestosis and its causes, effectively refuted Defendants’ apparent claim that chrysotile asbestos fibers are “harmless.” There is a large body of medical literature that authoritatively refutes any notion that chrysotile asbestos is harmless. The medical literature is clear that many, many workers from the asbestos mines in Thetford, Quebec, which is a so-called chrysotile asbestos mine, have developed numerous asbestos-related diseases. The VAG mine and the Thetford, Quebec mine are of the same geologic formation, and both contain primarily chrysotile asbestos fibers. In addition, both mines are contaminated with a very small percentage of tremolite asbestos, which is recognized in the medical literature as being more “pathogenic” than pure chrysotile asbestos.
63. Chrysotile asbestos clearly is hazardous to human health, although not as hazardous as other types of asbestos fibers. The fact remains, however, that chrysotile asbestos, especially when contaminated with tremolite asbestos, is a recognized health hazard, and causes asbestos-related lung diseases. The OSHA and MSHA regulations and proposed regulations, and the official comments, summaries, and background material given with respect to them (in the Federal Register) corroborate the human hazard posed by chrysotile asbestos, as well as other types of asbestos.
64. Furthermore, the clinical experience of Drs. Davis and Klein, who have treated numerous asbestosis and mesothelioma patients who are former employees of the VAG asbestos mine, corroborates the pathogenicity of the type of asbestos at the VAG mine.
65. According to Drs. Davis, Butnor and Klein, the absence of pleural disease does not preclude a diagnosis of asbestosis, and, further, the association between asbestosis and pleural disease is poor.
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66. Pleural plaques or diffuse pleural thickening are found in a minority of patients with parenchymal pulmonary fibrosis caused by asbestos (asbestosis). Pleural plaques are a relatively rare finding even in heavily exposed asbestos workers. Therefore, the absence of pleural disease does not alter the likelihood that pulmonary fibrosis has been caused by asbestos in an appropriately exposed individual. The absence of pleural disease does not affect the apparent intensity or significance of historical exposure to asbestos. The presence of pleural disease supports the history that an asbestos exposure has occurred, but clearly correlates poorly with the cumulative intensity of exposure or its clinically significant consequences. Thus, in an individual with a clear history of asbestos exposure, as in the case of R. P. , the presence or absence of pleural plaques is largely irrelevant.
67. All four of Claimant’s medical experts thoroughly reviewed the facts of the case, including Claimant’s medical records, the various affidavits submitted by the former employees of the asbestos mine, and the deposition transcripts of the various fact witnesses who gave depositions.
68. All four of Claimant’s medical experts also conducted a thorough survey of the medical literature relating to the issues in the case.
69. All four of Claimant’s medical experts believe that R. P. more than satisfies the “latency period” for the diagnosis of asbestosis. Mr. P’s latency period is also consistent with the ATS criteria for the diagnosis of asbestosis.
70. The progression of Claimant’s asbestosis from the time that he first experienced symptoms in late 2003 to the time of his death on August 31, 2006, is consistent with a diagnosis of asbestosis. All four of Claimant’s medical experts believe that the nearly three year period between the onset of first clinical symptoms to date of death is not only not inconsistent with a diagnosis of asbestosis, but also consistent with it.
71. Asbestosis is a cumulative disease, and, as such, Claimant’s last month of asbestos exposure was as harmful as Claimant’s first month of exposure, or any other month in between. All four of Claimant’s medical experts believe that Claimant’s exposure to asbestos between July 1, 1994 – August 4, 1994 was harmful and “injurious.”
For Defendants:
72. Defendants presented expert opinions from pathologist Dr. John Craighead and radiologist Dr. Peter Barrett.
73. Dr. Craighead, a retired pathologist, used to practice in the Pathology Department at Fletcher Allen Health Care. He is board certified in pathology.
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74. Before retiring from active practice 1996, Dr. Craighead became associated with asbestos-related companies in the defense of asbestos litigation. Since 1982, Dr. Craighead has consulted with the defense in asbestos-related litigation in thousands of cases. Ninety-nine percent (99%) of all of Dr. Craighead’s testimony has been on behalf of the defense in litigated cases against asbestos-related companies.
75. Since 1982, Dr. Craighead has amassed at least $6,000,000, as a result of his consultation work with or on behalf of asbestos-related companies.
76. Since retiring in 1996, 100% of Dr. Craighead’s non-passive income has been generated from his consultation work with or on behalf of asbestos-related companies.
77. Although Dr. Craighead is published in the area, his published articles are not recent. His last peer-reviewed articles were published in the early 1990s. Dr. Craighead has not been a primary researcher and writer of any published peer review articles or other publications since the early 1990s.
78. Prior to publishing its Official Statement in 2004, the American Thoracic Society’s previous guidelines for the diagnosis of non-malignant diseases related to asbestos were published in 1986. The ATS promulgated new guidelines/criteria in 2004 because of all of the voluminous medical literature, case studies, and other evidence that had come to bear on the subject of asbestos, and the human hazards it causes, since 1986.
79. Because Dr. Craighead’s particular expertise is pathology, and because no pathologic diagnosis is warranted in this case (because there is no adequate pathologic specimen), Dr. Craighead carries little weight.
80. Dr. Craighead accepts that ATS’s 2004 Official Statement regarding the diagnosis of asbestos-related diseases is authoritative, and that R. P. met all of the required ATS criteria for a diagnosis of asbestosis. Specifically, Dr. Craighead conceded that the current ATS criteria do not require any pathologic findings in order to make a diagnosis of asbestosis. Dr. Craighead agreed that a pathologic diagnosis is not required.
81. Dr. Craighead conceded that the diagnosis of idiopathic pulmonary fibrosis, under the applicable ATS guidelines, is a diagnosis of exclusion.
82. Dr. Craighead asserted that the “gold” standard for the diagnosis of asbestosis is a pathological examination of the lungs and demonstration of numerous asbestos bodies in the scarred lung parenchyma. No asbestos bodies were found in this case because the only specimen available was a transbronchial biopsy, which is a grossly inadequate basis for a diagnosis.
83. One year ago before this Department in the J. M. v. Luzenac America case, DOL Opinion No. 66-05 WC, Dr. Craighead opined that a transbronchial biopsy is an inadequate basis for a pathologic diagnosis, yet he relied on the transbronchial biopsy in this case to support his conclusion.
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84. Dr. Craighead agreed that no pleural plaques need be found to arrive at a diagnosis of asbestosis. Although a finding of pleural plaques would be consistent with asbestosis, such a finding is not required.
85. Dr. Craighead agrees that R. P. had severe pulmonary fibrosis, even though the transbronchial biopsy revealed essentially normal tissue. That is, Dr. Craighead found no evidence of pulmonary fibrosis or any other evidence of lung disease on the transbronchial biopsy that he examined. Since Dr. Craighead concedes that Claimant had severe lung disease, his reliance on a normal transbronchial biopsy to rule out a diagnosis of asbestosis (which is a type of pulmonary fibrosis), is unpersuasive.
86. A major part of Dr. Craighead’s analysis and conclusion is based upon the assumption that Mr. P had no structural changes or other signs of asbestosis when he was last exposed in 1994, or at any time before Claimant became symptomatic in 2004. His conclusion is also based upon the assumption that asbestosis does not commonly develop or progress after exposure to chrysotile fibers ceases. Dr. Craighead’s opinions in that regard, however, are directly contrary to the opinions he expressed in 1982 in the “Special Report” of the Pneumoconiosis Committee of the College of American Pathologists and the National Institute for Occupational Safety and Health, which Dr. Craighead chaired. The “Special Report,” entitled “Asbestos-Associated Diseases,” and published in the Archives of Pathology and Laboratory Medicine, includes the statement that asbestosis is often a progressive disease “either with or without continued exposure.” Exhibit 29e — Archives of Pathology and Laboratory Medicine, Volume 106, No. 11, October 8, 1982, at p. 58].
87. Another basis heavily relied upon by Dr. Craighead for his diagnosis of idiopathic pulmonary fibrosis, is the claim that the “progression” of R. P. ’s lung disease, from first symptoms in late 2003 to date of death on August 31, 2006, was too rapid for someone with asbestosis. However, in Dr. Craighead’s 1982 monograph on asbestos-associated diseases, he and the other members of the Special Study Committee cited an example of an asbestosis case that had a more rapid rate of progression than in Mr. P’s case.
88. Dr. Craighead agrees that pleural plaques are not a required finding for the diagnosis of asbestosis under the 2004 ATS guidelines. Dr. Craighead also agrees that pleural plaques can be present without asbestos exposure. In fact, Dr. Craighead is of the belief that chrysotile asbestos fibers generally do not cause pleural plaques. As such, he would not expect to find pleural plaques in this case.
89. Dr. Craighead stated unequivocally that he considered the amphibole asbestos types to be “unsafe” at concentrations of 0.1 ppm, but had no opinion on the question whether chrysotile contaminated with tremolite (an amphibole type) was similarly unsafe at 0.1 ppm.
90. Dr. Craighead opined that, given sufficient exposure to asbestos, the lungs are injured almost immediately at the cellular level.
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91. Dr. Craighead agrees with Dr. Barrett’s analysis that the radiographic studies performed on Mr. P in the spring of 2004 showed “dramatic change” and that Mr. P was already at the “intermediate “ stage of the disease process at that point. Dr. Craighead has no way of knowing when, between 1995 and 2004, the structural changes occurred and progressed to the intermediate stage.
92. Defendants’ second medical expert is Dr. Peter Barrett, a radiologist from Boston, Massachusetts, who is board certified in diagnostic radiology and nuclear medicine, and who is a “B” reader of plain chest x-rays.
93. Dr. Barrett reviews on average 75-150 chest x-rays per week and consults for the defense of asbestos-related companies. Dr. Barrett has earned millions of dollars consulting on behalf of asbestos-related companies. In the early 2000s, in one year alone, he earned approximately $1,000,000 consulting for asbestos-related interests. Dr. Barrett has been testifying on behalf of asbestos-related companies since approximately 1996, and, in many years since then, his consulting fees in the defense of asbestos-related cases has been approximately 50% of his overall income.
94. Dr. Barrett also has a limited clinical practice, teaching responsibilities, and research activities. He has published only a few articles in unrelated areas, and he has never been published with respect to asbestos-related diseases or any other issues related to this case.
95. Dr. Barrett’s “B” reader certification adds nothing of any particular value to this case. NIOSH’s “B” reader certification program was instituted before the advent of more technologically superior diagnostic studies, such as CT scans and High Resolution CT scans. Given a choice between basing a diagnosis upon a plain chest x-ray versus an HR CT, no competent physician would rely on the plain chest x-ray. When CT scans and HR CT scans are available, as in Mr. P’s case, reliance upon plain chest x-rays, which Dr. Klein, Dr. Craighead, and Dr. Barrett all testified have a significant false negative rate, would not be good practice.
96. In arriving at his conclusion that R. P. suffered from idiopathic pulmonary fibrosis and not asbestosis, Dr. Barrett relied on the fact that there was no finding of pleural plaques on any of the radiographic or radiologic studies. He concluded that the complete absence of pleural plaques on x-ray excluded the diagnosis of asbestosis in this case. In reemphasizing his total reliance on the absence of pleural plaques to render his diagnosis of IPF, Dr. Barrett opined: “In the absence of pleural plaques, interstitial fibrosis, as in this case, is almost certainly ‘some type’ of idiopathic pulmonary fibrosis.”
97. Dr. Barrett agreed that the 2004 American Thoracic Society Official Statement regarding the diagnosis of asbestos-related diseases does not require a finding of pleural plaques to make a diagnosis of asbestosis. However he disregarded the ATS’s criteria because he personally believes that the “new standards” are a “shameful” display of medicine gone bad.
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98. Dr. Barrett’s review of the facts in this case was inadequate and superficial. He was not provided with any of the affidavits submitted by employees, he did not review any of the deposition transcripts in this case, and he had not reviewed all of the medical records.
99. Dr. Barrett’s factual conclusion that Mr. P “handled asbestos from time to time,” is an inaccurate account of R. P.’s contact with and handling of asbestos over his 34 years of work at the asbestos mine. Dr. Barrett’s other factual statement, that Mr. P “almost always used a respiratory” is also grossly inconsistent with the factual testimony of the various employees who testified.
100. In his report, Dr. Barrett summarily concluded that Mr. P, “has clinically, radiographically and pathologically not developed asbestosis.” In arriving at those conclusions, Dr. Barrett disregarded the work-ups performed by and the conclusions reached by Mr. P’s treating clinicians, who unanimously agreed that Mr. P satisfied all of the clinical criteria for a diagnosis of asbestosis. Dr. Barrett obviously also completely disregarded the determination of the American Thoracic Society, as well as the overwhelming body of medical literature in the field, that a pathologic diagnosis is not required for a diagnosis of asbestosis. Further, Dr. Barrett completely ignored the fact that “radiographically” Mr. P’s radiographic and radiologic studies are entirely consistent with a history of asbestos exposure and with a diagnosis of asbestosis.
101. Dr. Barrett’s unsupported conclusion that “Most people exposed to asbestos will have pleural plaques,” and his unsupported conclusion that, “pleural plaques will be seen with ‘minimal exposure’,” was refuted by not only Claimant’s medical experts, but also by Dr. Craighead. According to Dr. Craighead, it would be unusual for someone exposed to chrysotile asbestos to develop pleural plaques.
102. Dr. Barrett agreed that the VAG asbestos mine contained “a low level of tremolite asbestos.” This is consistent with the testimony of Claimant’s medical experts, and it refutes Dr. Craighead’s wholly unsupported and non-documented assertion that the Vermont mine contains only “pure chrysotile” without any tremolite contamination.
103. Dr. Barrett agreed that a transbronchial biopsy is an inferior method of making a pathological diagnosis, and, generally, “is not the best way of diagnosing asbestosis.”
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CONCLUSIONS OF LAW
Is this claim time barred?
1. Defendant argues that the claim is barred by the Occupational Disease Act’s five-year statute of repose. Under Vermont’s Occupational Disease Act (“ODA”), the following definition is applicable:
a. A disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment, and to which an employee is not ordinarily subjected or exposed outside of or away from his employment, and which arises out of and in the course of such employment.
Stoll v. Burlington Electric Dept., Op. No. 39-06WC (Sept. 22, 2006) (citing Campbell v. Savelberg, 139 Vt. 31 (1980)).
2. Asbestosis is clearly an occupational disease.
3. Effective July 1, 1999, the Legislature repealed the ODA, replacing it with a new statutory scheme under 21 V.S.A. § 660(b). The ODA contained a statute of repose which read: “Compensation shall not be payable for disablement by reason of occupational disease unless such disablement results within five years after the last injurious exposure to such disease in the employment…” 21 V.S.A. § 1006(a) (repealed). The applicable statute of limitations under 21 V.S.A. § 660(b) states: “A claim for occupational disease shall be made within two years of the date the occupational disease is reasonably discoverable and apparent.” Stoll, supra.
4. The statute of limitations that applies to a particular cause of action is generally the one in effect when the cause of action accrued. Id. (citing Cavanaugh v. Abbott Labs., 145 Vt. 516, 521 (1985)). Claimant’s cause of action began to accrue for his alleged asbestosis, an occupational disease as defined by 21 V.S.A. § 1002, on the last day of injurious exposure.
5. The Vermont Supreme Court has held that the ODA’s five-year statute of repose applies and bars claims for compensation for occupational diseases when the last injurious exposure to the disease causing agent – asbestos in this case – occurred more than five years before the statute’s repeal on July 1, 1999, and the claim is brought after that five-year period. Carter v. Fred’s Plumbing & Heating, Inc., 174 Vt. 572 (2002) and Murray v. Luzenac Corporation, 175 VT 529 (2003). Under these cases, if the five-year statute of repose had already run prior to the enactment of the two-year “discovery rule” contained in 21 V.S.A. § 660(b), then the ODA’s “last injurious exposure rule” applies.
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6. In Carter, the claimant was exposed to asbestos over the course of his career as a plumber. His last injurious exposure to asbestos occurred in 1981 when the Occupational Disease Act was in effect, but he was not diagnosed with pulmonary asbestosis until June 4, 1999. Less than one month later, on July 1, 1999, the Occupational Disease Act’s five-year statute of repose was repealed and replaced with 21 V.S.A. § 660(b)’s two-year “discovery rule” statute of limitations. The claimant in Carter filed his claim on July 7, 1999 and argued that the new two-year discovery rule should apply. 174 Vt. 572 at 572-73. The Court rejected the claimant’s arguments and held that the claim was barred by the ODA’s statute of repose stating, “[u]nfortunately for plaintiff, the line was drawn in a manner that does not afford him relief.” Id. at 575. Because the statute of limitations that applies to a particular cause of action is generally the one in effect when the cause of action accrues – the date of claimant’s last injurious exposure in 1981 – the claimant did not bring his claim in time. Id. at 574. In order to bring a timely claim, the ODA required the claimant to be diagnosed and file a claim within five years of the last injurious exposure.
7. Similarly, in Murray the Court had the opportunity to rule on the ODA’s applicability. The specific issue in that case was whether § 660(b)’s discovery rule applied to claims where the last injurious exposure occurred prior to July 1, 1999, but the five-year time limitation under the ODA had not yet lapsed. Murray, 2003 VT 37, 50. In that case, the claimant was last injuriously exposed on September 15, 1994 so that the ODA’s five-year time limitation would not run until September 15, 1999, two and a half months after § 660(b) was enacted. Under those circumstances, the Court held that because the statute of repose under the ODA had not run prior to § 660(b)’s enactment, the defendant did not have a vested right in the old statute and the claimant could take advantage of the new two-year limitations period and bring a claim within two years of discovering his disease. Id. The claimant was diagnosed with silicosis on June 1, 2000 and filed a workers’ compensation claim on October 9, 2000. His claim was timely.
8. In this case, Claimant has established that he was employed by VAG between July 1, 1994 and August 4, 1994, and that he was injuriously exposed to asbestos during that time period. He was actively involved in the clean up of asbestos during that time. Although he wore a mask, I am not convinced by the defense position that he wore it at all times or that the device was truly protective. Therefore, as in Murray, the ODA’s five-year time limitation had not yet lapsed at the time the discovery rule was adopted.
9. This conclusion is further supported by the testimony of Dr. Davis that Claimant was injuriously exposed to asbestos between July 1, 1994 and August 4, 1994 because the injury from asbestos is cumulative.
10. Claimant has proven that he was injuriously exposed to asbestos between July 1, 1994 and August 4, 1994. Therefore, the discovery rule of § 660 applies and this claim is timely.
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Compensability
11. 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).
12. 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 v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
13. Where the causal connection between an accident and an injury is obscure, and a lay person would have no well-grounded opinion as to causation, expert medical testimony is necessary. Lapan v. Berno’s Inc., 137 Vt. 393 (1979).
14. In considering conflicting expert opinions, the Department has traditionally examined the following criteria: (1) the length of time the physician has provided care to the claimant; (2) the physician’s qualifications, including the degree of professional training and experience; (3) the objective support for the opinion; and (4) the comprehensiveness of the respective examinations, including whether the expert had all relevant records. J.M. v. Luzenac America, Opin. No. 66-05 Wc (Nov. 23, 2005); Miler v. Cornwall Orchards, Opin. No. 20-97 Wc (Aug. 4, 1997); Gardner v. Grand Union, Opin. No. 24-97 Wc (Aug. 22, 1997).
15. Claimant’s medical experts had the clear advantage with respect to all of the above listed criteria. Drs. Jedlovszky, Davis, and Klein were treating physicians. Drs. Jedlovszky and Davis personally cared for Mr. P, examined him, and followed his progress over a substantial period of time. Neither of Defendants’ medical experts provided any care to Claimant. All of Claimant’s medical experts have strong qualifications, and the qualifications of Drs. Davis, Klein and Butnor are impeccable and highly relevant to the particular issues in this case. With the exception of Dr. Jedlovszky, Claimant’s medical experts are specialists and sub-specialists in areas of particular concern in this case. In addition, Claimant’s medical experts cover all fields of medicine that are relevant to this case, pulmonology, radiology and pathology.
16. All of Claimant’s medical experts are active clinicians who have highly professional, active clinical practices. In addition, Drs. Davis, Klein and Butnor combine their active clinical practices with substantial teaching and research responsibilities/activities.
17. Dr. Klein is a world-renowned chest/thoracic radiologist; Dr. Butnor is a sub-specialist in pulmonary pathology; and Dr. Davis sub-specializes in the area of dust-related pulmonary diseases. In connection with their practices, all three doctors routinely treat asbestosis patients and/or review radiologic studies and/or pathologic specimens pertaining to asbestosis patients.
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18. With the exception of Dr. Jedlovszky, Drs. Davis, Klein and Butnor are all published in the area, and their peer reviewed publications are current. Because they are currently active practitioners, with active teaching and research responsibilities, they have kept current with the medical literature in the areas at issue in this case.
19. Defendants offered no medical expert testimony from any physician qualified in the area of pulmonology. Since pulmonologists are the clinicians who generally are the ones to render day-to-day diagnoses with respect to the active care and management of lung diseased patients, Defendants’ failure to produce any opinions from any pulmonologists undermines the defense. Because the diagnosis of dust-related pulmonary diseases, such as asbestosis, involves the analysis of several criteria, including pathologic criteria, radiologic criteria, and clinical criteria (including exposure history), the pulmonologist is the one who pulls the information together. Defendants’ medical experts are limited in their training to the specific areas of pathology and radiology.
20. Dr. Craighead, although board certified in pathology, has not actively practiced since 1996. He has not treated a patient since 1958, and has never treated an asbestosis patient. Although published in the area, his publications are not current, which is significant in light of the great amount of knowledge and medical literature that has been generated with respect to asbestos-related diseases over the past 15 years.
21. Although Dr. Barrett is a board certified radiologist, his clear and significant financial ties to the asbestos industry detract from his objectivity.
22. Dr. Barrett is not published in the area, and generally does little research and writing in any area.
23. Regarding the comprehensiveness of the respective examinations, and the experts’ review of relevant data, all of Claimant’s medical experts clearly have the advantage with respect to this criterion. All of Claimant’s medical experts reviewed all of the medical records, the fact witness affidavits, the fact witness deposition testimony, the Defendants’ experts’ reports, and the bases for them, and all of the historical and current medical literature on the subject. Claimant’s medical experts knew the details of R. P.’s work history and his exposure to asbestos dust at the VAG mine.
24. Conversely, Defendants’ experts, in addition to never having examined Mr. P, clearly conducted an incomplete review of the medical records and the factual data in this case. Defendants’ experts were not provided with any fact witness deposition testimony, were not provided with any affidavits submitted by fact witnesses, and were only given partial medical records to review. When the two defense experts were contacted by defense counsel in May and June, 2006, respectively, they were provided with some medical records. It was obvious from their trial testimony that they had not reviewed all of the medical records that had been provided to them. Further, they were never provided with any medical records generated after May and June, which would have included Mr. P’s pulmonary function testing in July, 2006 and the medical care and treatment, including x-rays, that was given on August 30, 2006, the day before Mr. P died.
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25. The opinions rendered by Claimant’s four medical experts have solid objective bases. The current “gold” standard for the diagnosis of non-malignant asbestos-related diseases is the 2004 Official Statement of the American Thoracic Society. Claimant’s medical experts objectively and rationally applied the criteria required by the 2004 ATS guidelines, and objectively and rationally applied the facts of this case to those criteria.
26. Claimant’s medical experts established that there is an objective basis for a clinical diagnosis of asbestosis in this case, including respiratory crackles heard on multiple examinations, significant changes in Mr. P’s ventilatory function, significant impairment of Mr. P’s gas exchange, and clubbing of Mr. P’s digits.
27. Claimant’s medical experts also had objective radiologic findings upon which to base their opinions. The radiologic findings, including bilateral lower lung small irregular opacities, are entirely consistent with the diagnosis of asbestosis. Nothing on Mr. P’s radiologic studies were inconsistent with a diagnosis of asbestosis. Although there are “markers” of asbestosis that may or may not be present in any given case, such as pleural plaques, the medical literature is clear that pleural plaques are by no means a required finding for a diagnosis of asbestosis.
28. Claimant’s medical experts also objectively applied the ATS criterion relating to evidence of plausible causation. Specifically, they objectively applied Mr. P’s significant occupational and environmental history of exposure to asbestos, including the required latency for asbestosis cases.
29. In order to arrive at the diagnosis of “idiopathic” pulmonary fibrosis, it was incumbent upon Defendants’ medical experts to exclude all other plausible diagnoses, including a diagnosis of asbestosis. They failed to do so. The only alternative offered by Defendants’ medical experts is essentially that the cause of Mr. P’s pulmonary condition is unknown. The more probable hypothesis is that Claimant’s many years of working closely and directly with asbestos fibers and dust caused his asbestosis. See Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941); J.M. v. Luzenac America, Opin. No. 66-05 WC (2005).
TOTAL DISABILITY BENEFITS
30. “Our law provides for two main types of benefits. Temporary benefits… are available during the recuperation period until the injured worker is as far restored as the permanent character of his injuries will permit. Orvis v. Hutchins, 123 Vt. 18 (1962). Thereafter, benefits are available for the permanent disability within the statutory limits. These benefits can be provided for partial or total permanent disability.” Fleury v. Kessel/Duff Constr. Co. 148 Vt. 415, 417 (1987).
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31. Pursuant to 21 V.S.A. § 642:
Where the injury causes total disability for work, during such disability….the employer shall pay the injured employee a weekly compensation equal to two thirds of the employee’s average weekly wage, but not more than the maximum or less than the minimum….. However, in no event shall an employee’s total weekly wage replacement benefits…exceed 90 percent of the employee’s average weekly wage prior to applying any applicable cost of living adjustment.
32. The medical records and opinions offered during hearing prove that Claimant was totally disabled when he stopped working in July of 2004.
33. Claimant is correct that the claim for unpaid TTD survives the worker’s death under Dodge v. Precision Construction Products, 203 Vt. 11, 175 Vt. 101 (2003); DOL State File No. R-07400, Opinion. No. 38-01 WC. In Dodge, the estate of a worker, who died prior to the adjudication of a contested claim for workers’ compensation benefits, was permitted to pursue such a claim under the Vermont Survival Statute despite the worker’s compensation insurer’s argument that the claim abated at the worker’s death. In Dodge, the Vermont Supreme Court affirmed the Department’s decision granting benefits, holding that, “A claim for compensation benefits which accrued but were not paid at the time of the workman’s death is a vested right which he has earned, and therefore it becomes an asset of his estate.” Applying that legal principle, the Supreme Court ruled that, if the claimant’s Estate administrators could prove that the claimant was eligible for workers’ compensation benefits prior to the death, then the Estate would be entitled to the payments that the claimant would have received, “as well as payments under 21 V.S.A. § 639.
34. Accordingly, Mr. P’s estate is entitled to temporary total disability benefits from July 2004 until his death in 2006.
35. Claimant argues, however, that his disability benefits fall, not under the temporary total disability provision of § 642, but under the permanent total disability provision of § 644. He argues further that he is entitled to a minimum of 330 weeks as specified in 21 V.S.A. § 645.
36. While it is true that Claimant was totally disabled from all regular, gainful employment when he stopped working in July 2004, it does not follow that he was entitled to a permanent total disability benefits from the onset of disability. Permanent benefits begin only after one has reached medical end result. That determination was never made in this case during Mr. P’s life. Therefore, the disability benefits to which he was entitled were TTD, owed now to his estate.
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37. His widow, however, has an independent claim for 330 weeks of benefits pursuant to § 635.
Work-Relatedness Of Mr. P’s Death
38. Mr. P’s death on August 31, 2006, was directly caused by Mr. P’s work-related asbestosis. The asbestos-related pulmonary fibrosis, caused by Mr. P’s long history of exposure at the VAG asbestos mine, caused Mr. P’s death. Although Defendants contest whether Mr. P did in fact have asbestosis, as opposed to “idiopathic” pulmonary fibrosis, if Mr. P did, in fact, have asbestosis, Defendants do not contest that Mr. P’s death was the direct result of that injury/disease process.
Death Benefits For R. P.’s Dependent
39. R. P.’s widow, H. P., was his only dependent at the time of his death on August 31, 2006. She is 67 years old, and receives social security benefits.
40. Under 21 V.S.A. § 635, Mr. P’s widow is entitled to 330 weeks of compensation times the maximum weekly compensation “except when the compensation terminates by reason of death.” The maximum weekly compensation as of the date of death, August 31, 2006, was $974.00. Therefore, Mrs. P. is entitled to weekly benefits for 330 weeks from that date forward unless she dies before that time expires.
41. Mr. P’s dependent widow has an independent right to the death benefits, separate and apart from Mr. P’s estate’s independent right to Mr. P’s workers’ compensation benefits that had accrued (and therefore vested) prior to the date of his death.
Funeral And Burial Expenses
42. Under 21 V.S.A. § 632, Mr. P’s estate is entitled to $5,500 for funeral and burial expenses.
Medical Benefits
43. Given that Mr. P’s injury is work-related and compensable, he is entitled to all reasonable and necessary medical benefits associated with the care and treatment of his work-related pulmonary condition. Following this decision, Claimant and Defendants shall determine what medical services were provided to R. P. for his work-related injury, and Defendants shall pay those benefits as required by the Workers’ Compensation Act.
Attorneys’ Fees And Costs
44. Claimant’s law firm worked 601 hours on this case and incurred costs in the amount of $33,464.99.
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45. Under 21 V.S.A. § 678(a), a prevailing claimant is entitled to a mandatory award of necessary costs and a discretionary award of reasonable attorneys’ fees. Because Claimant prevailed on this case, he is awarded attorneys’ fees of $54,090 (601 hours x $90). All costs are awarded ($33,464.99) because they were reasonably necessary to pursue this case.
46. Claimant is entitled to interest on all unpaid compensation from the date payments were due until paid. This includes interest on unpaid permanency benefits from July 21, 2004, and on death benefits beginning from the date of Mr. P’s death on August 31, 2006.
47. Factors considered in fashioning an award of attorneys’ fees include the necessity of representation, difficulty of issues presented, time and effort expended clarity of time reports, agreement with the Claimant, skill of counsel, and whether fees are proportional to the efforts of counsel. W.P. v. Madonna Corp., Opin. No. 18-06 Wc (2006); Hojohn v. Howard Johnson’s, Inc., Opin. No. 43A-04 Wc (2004); Estate of Lyons v. American Flatbread, Opin. No. 36A-03 (2003).
48. Considering the unique complexity of this case, the time and skilled effort expended by the attorney to establish the Claimant’s right to compensation, clarity of time reports, and proportionality of the fees to the efforts of the attorney, Claimant’s attorney has met the established criteria for determining the reasonableness of the fees and costs.
ORDER
Therefore, based on the foregoing findings of fact and conclusions of law, Defendant is ORDERED to pay benefits as outlined above for temporary total disability benefits, death benefits, medical benefits and attorney fees, costs and interest.
DATED at Montpelier, Vermont, this 23rd 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.
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State File No. X-01358
Number
Exhibit
Claimant’s
1
R. P. ’s “Dustfoe 77” respirator used at the VAG asbestos mine
2
R. P. ’s medical records
3
All of R. P. ’s chest x-rays and CT scans
4
R. P. ’s death certificate
5
Dr. Gerald Davis’ curriculum vitae
6
Dr. Jeffrey Klein’s curriculum vitae
7
Dr. Veronika Jedlovszky’s curriculum vitae
8
Dr. Kelly Butnor’s curriculum vitae
9
Affidavit of Elvern Jones dated April 4, 2006
10
Affidavit of Lynwood Gray dated April 12, 2006
11
Affidavit of Wilfred Young, Jr. dated April 10, 2006
12
Affidavit of R. P. dated April 3, 2006
13
R. P. ’s Notice of Termination of Employment with VAG, dated August 4, 1994
14
R. P. ’s deposition transcript, including videotape
15
Elvern Jones’ deposition transcript
16
Two pages of notes prepared by Dr. Gerald Davis, dated July 14, 2006, regarding the association, if any, between asbestosis and pleural disease
17
Dr. Jedlovszky’s handwritten notes, dated April 29, 2006, responding to the questions posed in Attorney Cain’s letter to Dr. Jedlovszky dated April 20, 2006, regarding permanent total disability
18
Exhibit 1 from Dr. Jeffrey Klein’s deposition, which was taken on September 20, 2006, entitled “Radiologic manifestations of asbestos exposure”
19
Exhibit 2 from Dr. Jeffrey Klein’s deposition, which was taken on September 20, 2006, relating to Dr. Klein’s interpretations of R. P. ’s various radiologic studies
20
Defendant VAG’s Answers to Claimant’s First Set of Interrogatories and Requests to Produce, including attached Exhibits 2 and 3
21
Letter dated June 29, 2006, from Attorney Sluka to Attorney Cain, together with all of the attached documents from the Pension Benefit Guaranty Corporation
22
Letter from Deborah Wilson, Senior Pension Administrator of the Pension Benefit Guaranty Corporation, to Attorney Cain, dated May 11, 2006
23
Attorney Cain’s letter to Deborah Wilson of the Pension Benefit Guaranty Corporation dated May 9, 2006, together with the attachments
24
Letter from William Fitzgerald, Disclosure Officer for the Pension Benefit Guaranty Corporation, to Attorney Boxer, dated April 18, 2006
25
Various documents from the Vermont Department of Health, including Vernon Nelson’s letter to Attorney Cain dated May 26, 2006; Mr. Nelson’s letter to Attorney Sluka dated May 16, 2006; Mr. Nelson’s letter to Attorney Sluka dated May 26, 2006; and all of the enclosures Mr. Nelson
25
Number Exhibit
Claimant’s
included with those letters
26
Memorandum dated June 16, 2006, with attached EPA, OSHA and MSHA regulations and proposed rules
27
Letter from Stephen Perkins of the U.S. E.P.A., dated July 14, 2006, together with all documents enclosed with the letter
28
R. P. ’s employment records received from Northeast Ag Sales
29
Various medical articles:
a) American Thoracic Society’s Diagnosis and Initial Management of Nonmalignant Diseases Related to Asbestos, adopted by the ATS on December 12, 2003;
b) Article entitled “Fatal Asbestosis 50 Years After Brief High Intensity Exposure In a Vermiculite Expansion Plant” from American Journal of Respiratory Critical Care Medicine, Volume 165, Pages 1145-49 (2002);
c) Article entitled “The Natural History of Asbestosis in Former Crocidolite Workers of Wittenoom Gorge,” from American Review of Respiratory Diseases, Volume 133 at Pages 994-98 (1986);
d) Article entitled “Progression of Irregular Opacities in Asbestos Miners,” from British Journal of Industrial Medicine, Volume 46 at Pages 846-52 (1989);
e) Asbestos-Associated Diseases published by the AMA’s Archives of Pathology and Laboratory Medicine, Volume 106, No. 11 (1982);
f) Article entitled “Follow-Up of Asbestosis Patients and Predictors for Radiographic Progression,” International Archives of Occupational Environmental Health, Volume 71 at pages 465-71 (1998);
g) Article entitled “Asbestosis, Pleural Plaques and Diffuse Pleural Thickening: Three Distinct Benign Responses to Asbestos Exposure,” from European Respiratory Journal, Volume 11 at Pages 1021-27 (1998);
h) Article entitled “Mineral-Induced Lung Disease in Modern Industry,” from the Journal of Clinical Pulmonary Medicine, Volume 13, No. 2 (2006);
i) American Thoracic Society article entitled “Idiopathic Pulmonary Fibrosis: Diagnosis and Treatment” from American Journal of Respiratory Critical Care Medicine, Volume 161, at Pages 646-64 (2000);
j) Ovid Medical article search results obtained by Dr. Davis;
k)Medical article: Akira M, Yamamoto S, Yokohama K, et al.
26
Number Exhibit
Claimant’s
Asbestosis: High-resolution CT-pathologic correlation. Radiology 1990; 176:389-394;
l) Medical article: Aberle Dr., Gamsu G., Ray CS, et al. Asbestos-related pleural and parenchymal fibrosis: Detection with high-resolution CT. Radiology 1988; 166:729-734.
m) Medical article: Kipen HM, Lilis R., Suzuki Y., Valciuskas JA, Selikoff IJ. Pulmonary fibrosis in asbestos insulation workers with lung cancer: a radiological and histopathological evaluation. Br J Ind Med 1998; 44:96-100.
n) Medical article: Staple CA, Gamsu G., Ray CS, et al. High-resolution computed tomography and lung function in asbestos-exposed workers with normal chest radiographs. Am Rev Resp Dis 1989; 139(6): 1502-8;
o) Medical article: Gamsu G., Salmon CJ, Warnock M., Blanc PD. CT quantification of interstitial fibrosis in patients with asbestosis: a comparison of two methods. AJR Am J Roentgenol 1995; 164:63-68;
p) Article from Rocks & Minerals; Jul/Aug96, Vol. 71, Issue 4 entitled “Minerals of the Quarries of Lowell-Eden, Vermont”;
q) Article from Department of Pathology, Duke University and Durham VA Medical Center, titled “Tremolite and Mesothelioma”;
r) Article from Int. Arch Occup Environ Health (1998) entitled “Follow-up of Asbestosis Patients and Predictors for Radiographic Progression”;
s) Article from British Journal of Industrial Medicine (1989) entitled “Progression of Irregular Opacities in Asbestos Miners”;
t) Article from American Thoracic Society entitled “Idiopathic Pulmonary Fibrosis: Diagnosis and Treatment”;
u) Article from American Thoracic Society entitled “Classification of the Idiopathic Interstitial Pneumonias”;
v) Article entitled “The Natural History of Asbestosis in Former Crocidolite Workers of Wittenoom Gorge”;
w) Case Report entitled “Fatal Asbestosis 50 Years After Brief High Intensity Exposure in a Vermiculite Expansion Plant”;
27
Number Exhibit
Claimant’s
x) Excerpt from Pathology of Occupational Lung Disease – “Epidemiologic Features” and “Clinical and Radiographic Features”;
y) Excerpt from Pathology of Occupational Lung Disease, p. 326;
z) Excerpt from T.A. Sporn and V.L. Roggli, pgs. 92, 97 and 102;
aa) Excerpt from Cytopathology of Asbestos-Associated Diseases; and
bb) NCBI abstract for a 1979 article entitled “Radiographic Progression of Asbestosis: Preliminary Report”;
cc) McGill University editorial published in the American Journal of Respiratory and Critical Care Medicine, Volume 150 (1994) entitled “Fiber Burden and Asbestos-related Lung Disease: Determinants of Dose-Response Relationships”;
dd) A. Gregor, R.W. Parkes, R. du Bois, and M. Turner-Warwick Department of (Thoracic) Medicine, University of London article entitled “Radiographic Progression of Asbestosis: Preliminary Report”;
ee) Sharon H. Srebro, MD, and Victor L. Roggli, MD article published by American Journal of Industrial Medicine 26:809-819 (1994) entitled “Asbestos-Related Disease Associated With Exposure to Asbestiform Tremolite”;
ff) Andrew Churg, Joanne L. Wright, Lisa Depaoli, and Barry Wiggs article entitled “Mineralogic Correlates of Fibrosis in Chrysotile Miners and Millers”;
gg) Andrew Churg article published in Ann. Occup. Hyg., Vol. 38, No. 4 (1994) entitled “Deposition and Clearance of Chrysotile Asbestos”;
hh) Andrew Churg, MD and Barry Wiggs, BSc article published by the American Journal of Industrial Medicine 9:143-152 (1986) entitled “Fiber Size and Number in Workers Exposed to Processed Chrysotile Asbestos, Chrysotile Miners, and the General Population”;
ii) Andrew Churg, Joanne L. Wright, and Sverre Vedal article published in Am Rev Respir Dis, Vol. 148, pp. 25-31 (1993) entitled “Fiber Burden and Patterns of Asbestos-related Disease in Chrysotile Miners and Millers”;
jj) Bruce W. Case, MD and Patrick Sebastien, Ph.D., McGill University article entitled “Environmental and Occupational Exposures to
28
Number Exhibit
Claimant’s
Chrysotile Asbestos: A Comparative Microanalytic Study”;
kk) Jill Ohar, MD, FCCP; David A. Sterling, PhD; Eugene Bleecker, MD, FCCP; and James Donohue, MD, FCCP article downloaded from www.chestjournal.org at Dana Medical Library, University of Vermont on September 28, 2006 entitled “Changing Patterns in Asbestos-Induced Lung Disease”;
ll) Murray M. Finkelstein, PhD, MDCM, and Andre Dufresne, PhD article published by American Journal of Industrial Medicine 35:401-412 (1999) entitled “Inferences on the Kinetics of Asbestos Deposition and Clearance Among Chrysotile Miners and Millers”;
mm) Philip J. Landrigan, William J. Nicholson, Yasunosuke Suzuki and Joseph Ladou articles published in Industrial Health (1999) entitled “The Hazards of Chrysotile Asbestos: A Critical Review”;
nn) Steven B. Markowitz, Alfredo Morabia, Ruth Lilis, Albert Miller, William J. Nicholson and Stephen Levin article published in Am J Respir Crit Care Med, Vol. 156, pp. 101-108 (1997) entitled “Clinical Predictors of Mortality from Asbestosis in the North American Insulator Cohort, 1981 to 1991”;
oo) G. Berry article published by the British Journal of Industrial Medicine (1981) entitled “Mortality of workers certified by pneumoconiosis medical panels as having asbestosis”;
pp) Matti S. Huuskonen, MD article published by Scand. J. work environ. & health 4 (1978) entitled “Clinical features, mortality and survival of patients with asbestosis”;
qq) Patrick G. Coin, Alvaro R. Osornio-Vargas, Victor L. Roggli, and Arnold R. Brody article published in Am J Respir Crit Care Med, Vol. 154 (1996) entitled “Pulmonary Fibrogenesis after Three Consecutive Inhalation Exposures to Chrysotile Asbestos”;
rr) Andrew Churg and Joanne L. Wright article published in Environmental Health Perspectives 102 (Suppl. 5) (1994) entitled “Persistence of Natural Mineral Fibers in Human Lungs: An Overview”;
ss) Patrick G. Coin, Victor L. Roggli, and Arnold R. Brody article published in Environmental Health Perspectives 102 (1994) entitled “Persistence of Long, Thin Chrysotile Asbestos Fibers in the Lungs of Rats”;
tt) Francis H Y Green, Russell Harley, Val Vallyathan, Rochelle
29
Number Exhibit
Claimant’s
Althouse, Gordon Fick, John Dement, Ravi Mitha, Fred Pooly article published in Occupational and Environmental Medicine Vol. 54 (1997) entitled “Exposure and mineralogical correlates of pulmonary fibrosis in chrysotile asbestos workers”;
uu) Patrick G. Coin, Victor L. Roggli, and Arnold R. Brody article published in Environmental Research 58 (1992) entitled “Deposition, Clearance, and Translocation of Chrysotile Asbestos from Peripheral and Central Regions of the Rat Lung”;
vv) David M. Bernstein, Jörg Chevalier, Paul Smith article as published in Inhalation Toxicology, 17 (2005) entitled “Comparison of Calidria Chrysotile Asbestos to Pure Tremolite: Final Results of the Inhalation Biopersistence and Histopathology Examination Following Short-Term Exposure”;
ww) David M. Bernstein, Rick Rogers, Paul Smith article as published in Inhalation Toxicology, 17 (2005) entitled “The Biopersistence of Canadian Chrysotile Asbestos Following Inhalation: Final Results Through 1 Year After Cessation of Exposure”;
xx) Victor L. Roggli, MD, Anupama Sharma, MD, Kelly J. Butnor, MD, Thomas Sporn, MD and Robin T. Vollmer, MD article as published in Ultrastructural Pathology, 26 (2002) entitled “Malignant Mesothelioma and Occupational Exposure to Asbestos: A Clinicopathological Correction of 1445 Cases”;
yy) J.R. Viallat, MD, C. Boutin, MD, J.F. Pietri, MD, J. Fondarai, PhD, Hôpital Michet Lévy article as published in Archives of Environmental Health Vol. 38 (1983) entitled “Late Progression of Radiographic Changes in Canari Chrysotile Mine and Mill Exworkers”;
zz) Victor l. Roggli and Arnold R. Brody article as published in Experimental Lung Research 7 (1984) entitled “Changes in Numbers and Dimensions of Chrysotile Asbestos Fibers in Lungs of Rats Following Short-Term Exposure”;
A) Excerpt from Thurlbeck’s Pathology of the Lung, Third Edition, pp. 826 and 829;
B) Excerpt from Spencer’s Pathology of the Lung, Fifth Edition, pp. 492 and 498;
C) Excerpt from Robbins and Cotran’s Pathologic Basis of Disease, 7th Edition, p. 737;
30
Number Exhibit
Claimant’s
D) Excerpt from Fraser Paré’s Synopsis of Diseases of the Chest, Second Edition, pp. 726 and 737; and
E) Except from Atlas Nontumor Pathology – Non-Neoplastic Disorders of the Lower Respiratory Tract, pp. 822, 855 and 856.
STATE OF VERMONT
DEPARTMENT OF LABOR
WORKERS’ COMPENSATION HEARING
DEFENDANT’S EXHIBIT LIST
State File No: X-01358
Defendants
A Respirator
B Jedlowsky note 2/23/06
C Cain Letter
D Jedlowsky 2/23/06
E Dr. Barrett’s CV
F – I Exhibits F through I are unused
J Dr. Craighead’s CV
K – O Dr. Craighead’s drawings – (Originals produced to Department of Labor)
P Article by A. Churg, entitled “Nonneoplastic Diseases Caused by Asbestos”
Q Article by V. L. Roggli, entitled “Analysis of Tissue Mineral Fiber Content”
R Article by E. A., Gaensler, entitled ”Idiopathic Pulmonary Fibrosis in Asbestos-Exposed Workers”
S Article by P. J. Jederlinic, entitled ”Pulmonary Fibrosis in Aluminum Oxide Workers”
T Article by E. A. Gaensler, entitled “Thoracic Surgical Problems in Asbestos-Related Disorders”
U Article by D.A. Edelman, entitled ”Asbestos Exposure, Pleural Plaques and Risk of Lung Cancer”
V Article by D. E. Fletcher, entitled “A Mortality Study of Shipyard Workers with Pleural Plaques”
W Article by D. E. Fletcher, entitled “The Early Radiological Changes in Pulmonary and Pleural Asbestosis”
X Article by P. Harber, entitled “Asbestosis: Diagnostic Dilution”
Y Article by M. Remy-Jardin, entitled ”Morphologic Effects of Cigarette Smoking on Airways and Pulmonary Parenchyma in Healthy Adult Volunterrs: CT Evaluation and Correlation with Pulmonary Function Tests”
Z Article by W. Weiss, entitled ”Cigarette Smoking and Small Irregular Opacities”
31
AA Article by G. F. Rubino, entitled “Radiologic Changes After Cessation of Exposure Among Chrysotile Asbestos Miners in Italy”
BB Article by M. L. Warnock, entitled “Numbers and Types of Asbestos Fibers in Subjects with Pleural Plaques”
CC Article by M. M. Abdelaziz, entitled “Treatment of Idiopathic Pulmonary Fibrosis: Is there anything new?
DD Article by A. G. Nicholson, entitled “The Prognostic Significance of the Histologic Pattern of Interstitial Pneumonia in Patients Presenting with the Clinical Entity of Cryptogenic Fibrosing Alveolitis”
EE Article by E. R. Parra, entitled “Heterogeneous Remodeling of Lung Vessels in Idiopathic Pulmonary Fibrosis”
FF Article by R. M. Strieter, entitled “Pathogenesis and Natural History of Usual Interstitial Pneumonia*: The Whole Story or the Last Chapter of a Long Novel”
GG Article by E. S. White, entitled “Pathogenetic Mechanisms in Usual Interstitial Pneumonia/Idiopathic Pulmonary Fibrosis”
HH Article by A. Xaubet, entitled “Is it Necessary to Treat all Patients with Idiopathic Pulmonary Fibrosis?”
II Article by T. Nagao, entitled ”Serial Evaluation of High-Resolution Computed Tomography Findings in Patients with Idiopathic Pulmonary Fibrosis in Usual Interstitial Pneumonia”
JJ Article by D. A. Lynch, entitled “High-Resolution CT of Idiopathic Interstitial Pneumonias”
KK Article by K. Grijm, entitled “Semiquantitative 67Ga Scintigraphy as an Indicator of Response to and Prognosis After Corticosteriod Treatment in Idiopathic Interstitial Pneumonia”
LL Article by S. Kanoh, entitled “Exhaled Ethane*: An In Vivo Biomarker of Lipid Peroxidation in Interstitial Lung Disease”
MM Article by L. Vuokko, entitled “Oxidative Stress in Pulmonary Fibrosis”
NN Article by K. O. Leslie, entitled “Historical Perspective*: A Pathologic Approach to the Classification of Idiopathic Interstitial Pneumonias”
OO Article by A. Churg, entitled “Asbestos Fibers and Pleural Plaques in a General Autopsy Population”
PP Article by S. L. Wain, entitled “Parietal Pleural Plaques, Asbestos Bodies, and Neoplasia*”
QQ Article by V. L. Roggli, entitled “Malignant Mesothelioma and Occupational Exposure to Asbestos: A Clinicopathological Correlation of 1445 Cases”
RR Article by J. Ohar, entitled “Changing Patterns in Asbestos-Induced Lung Disease*”
SS Article by G. W. Gibbs, entitled “Etiology of Pleural Calcification: A Study of Quebec Chrysotile Asbestos Miners and Millers”
TT Article by P. A. Gevenois, entitled “Asbestosis, Pleural Plaques and Diffuse Pleural Thickening: Three Distinct Benign Responses to Asbestos Exposure”
UU Article by V. L. Kinnula, entitled “Oxidative Stress in Pulmonary Fibrosis”
VV Article by J. S. M. Doubkova, entitled “Idiopaticka Plicni Fibroza”
WW Article by J. R. Viallat, entitled “Late Progression of Radiographic Changes in Canari Chrysotile Mine and Mill Exworkers”
32
XX Article by S. B. Markowitz, entitled “Clinical Predictors of Mortality from Asbestosis in the North American Insulator Cohort, 1981 to 1991”
YY Article by A. Gregor, entitled “Radiographic Progression of Asbestosis: Preliminary Report”
ZZ Article by D. M. Bernstein, entitled “The Biopersistence of Canadian Chrysotile Asbestos Following Inhalation: Final Results Through 1 Year After Cessation of Exposure”
AAA Article by D. M. Bernstein, entitled “Comparison of Calidria Chrysotile Asbestos to Pure Tremolite: Final Results of the Inhalation Biopersistence and Histopathology Examination Following Short-Term Exposure”
BBB Article by R. S. Wright, entitled “Fatal Asbestosis 50 Years after Brief High Intensity Exposure in a Vermiculite Expansion Plant”
CCC Article by W. Cookson, entitled “The Natural History of Asbestosis in Former Crocidolite Workers of Wittenoom Gorge”
DDD Article by A. Churg, entitled “Fiber Burden and Patterns of Asbestos-related Disease in Chrysotile Miners and Millers”
EEE Article by A. Churg, entitled “Persistence of Natural Mineral Fibers in Human Lungs: An Overview”
FFF Article by P. G. Coin, entitled “Persistence of Long, Thin Chrysotile Asbestos Fibers in the Lungs of Rats”
GGG Article by J. N. Gitlin, entitled “Comparison of “B” Readers’ Interpretations of Chest Radiographs for Asbestos Related Changes”
HHH Article by M. L. Janower, entitled “ “B” Readers’ Radiographic Interpretations in Asbestos Litigation: Is Something Rotten in the Courtroom?”
III Article by A. Churg, entitled “Mineralogic Correlates of Fibrosis in Chrysotile Miners and Millers”
JJJ Article by A. Churg, entitled “Deposition and Clearance of Chrysotile Asbestos”
KKK Article by A. Churg, entitled “Fiber Size and Number in Workers Exposed to Processed Chrysotile Asbestos, Chrysotile Miners, and the General Population”
LLL Article by B. W. Case, entitled “Environmental and Occupational Exposures to Chrysotile Asbestos: A Comparative Microanalytic Study”
MMM Article by M. M. Finkelstein, entitled “Inferences on the Kinetics of Asbestos Deposition and Clearance Among Chrysotile Miners and Millers”
NNN Article by P. J. Landrigan, entitled “The Hazards of Chrysotile Asbestos: A Critical Review”
OOO Article by G. Berry, entitled “Mortality of Workers Certified by Pneumoconiosis Medical Panels as Having Asbestosis”
PPP Article by M. S. Huuskonen, entitled “Clinicial Features, Mortality and Survival of Patients with Asbestosis”
QQQ Article by P. G. Coin, entitled “Pulmonary Fibrogenesis after Three Consecutive Inhalation Exposures to Chrysotile Asbestos”
RRR Article by G. K. Sluis-Cremer, entitled “Progression of Irregular Opacities in Asbestos Miners”
SSS Article by F. H. Y. Green, entitled “Exposure and Mineralogical Correlates of Pulmonary Fibrosis in Chrysotile Asbestos Workers”
TTT Article by S. H. Srebro, entitled “Asbestos-Related Disease Associated with Exposure to Asbestiform Tremolite”
33
UUU Article by P. G. Coin, entitled “Deposition, Clearance, and Translocation of Chrysotile Asbestos from Peripheral and Central Regions of the Rat Lung”
VVV Article by V. L. Roggli, entitled “Changes in Numbers and Dimensions of Chrysotile Asbestos Fibers in Lungs of Rats Following Short-Term Exposure”
WWW Article by S. Nagai, entitled “Smoking-related Interstitial Lung Diseases”
XXX Article by N. Fujimura, entitled “Pathology and Pathophysiology of Pneumoconiosis” √
YYY Article by C. G. Ohlson, entitled “Ventilatory Decrements in Former Asbestos Cement Workers: A Four Year Follow Up” √
ZZZ Article by E. A. Gaensler, entitled “Progression of Asbestosis” √
AAAA Article by M. J. Gardner, entitled “Follow up Study of Workers Manufacturing Chrysotile Asbestos Cement Products”
BBBB Article by D. Egilman, entitled “Exposing the “Myth” of ABC, “Anything But Chrysotile”: A Critique of the Canadian Asbestos Mining Industry and McGill University Chrysotile Studies”Reference Book entitled “Pathology of Asbestos-Associated Disesases”, 2nd Edition
CCCC Reference Book entitled “Pathology of Asbestos-Associated Disesases”, 2nd Edition
DDDD Reference Book entitled “Pathology of Occupational Lung Disease”, 2nd Edition

J. B. v. Steven Betit (August 7, 2008)

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

J. B. v. Steven Betit (August 7, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
J. B. Opinion No. 32-08WC (amended)
v. By: Phyllis G. Phillips, Esq.
Hearing Officer
Steven Betit
For: Patricia Moulton Powden
Commissioner
State File No. Y-51024
AMENDED OPINION AND ORDER
The July 22, 2008 Opinion and Order in the above claim is hereby amended as follows:
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is ORDERED to pay:
1. Permanent partial disability benefits in accordance with Dr. Gennaro’s 50% whole person impairment rating;
2. A 10% penalty added to the amount payable in accordance with Dr. Boucher’s 23% impairment rating;
3. Accrued interest commencing on November 19, 2007 and computed as of the date each weekly payment became due;
4. Costs of $2,442.59 and attorney’s fees in accordance with Workers’ Compensation Rule 10.1220.
5. The benefits paid under this Order constitute compensation for a permanent impairment that will affect Claimant for the rest of hislife. Therefore, although paid in a lump sum the award shall be prorated over Claimant’s life expectancy. Claimant’s remaining life expectancy as of the date of end medical result (May 16, 2007) was 39.8 years, or 477.6 months. After payment of attorney’s fees Claimant shall be entitled to an award of $73,585.41. This award shall be considered to be $154.07 per month for the remainder of Claimant’s life.
DATED at Montpelier, Vermont this 7th day of August 2008.
__________________________________
Patricia Moulton Powden
Commissioner

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