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Enoch Rowell v. Northeast Kingdom Community Action (July 6, 2011)

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Enoch Rowell v. Northeast Kingdom Community Action (July 6, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Enoch Rowell Opinion No. 17-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Northeast Kingdom For: Anne M. Noonan
Community Action Commissioner
State File No. Y-58698
OPINION AND ORDER
ATTORNEYS:
Heidi Groff, Esq., for Claimant
Robert Mabey, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant permanently and totally disabled as a consequence of his February 4, 2007 compensable work injury?
2. If not, what is the extent, if any, of Claimant’s permanent partial disability causally related to his February 4, 2007 compensable work injury?
3. Is Defendant obligated to pay for a special lift chair as a reasonable and necessary medical supply causally related to Claimant’s February 4, 2007 compensable work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Service Contract
Claimant’s Exhibit 2: Hours and wages for 2010 work at NCJC
Claimant’s Exhibit 3: Vocational Rehabilitation Plan, December 14, 2010
Claimant’s Exhibit 4: Resume with handwritten corrections
Claimant’s Exhibit 5: Dr. White report, January 12, 2009
Claimant’s Exhibit 6: Dr. Harris letter, May 8, 2009
Claimant’s Exhibit 7: Functional Capacity Evaluation, May 28, 2009
Claimant’s Exhibit 8: Special lift chair prescription, July 8, 2008
Claimant’s Exhibit 9: James Parker vocational assessment, January 7, 2011
Claimant’s Exhibit 10: Fran Plaisted vocational evaluation, January 5, 2011
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Defendant’s Exhibit A: NCJC employment records
Defendant’s Exhibit B: Cover letter and resume, March 23, 2004
Defendant’s Exhibit C: Newport Daily Express, January 8, 2008
Defendant’s Exhibit D: Meeting attendance records, July 2009-May 2010
Defendant’s Exhibit E: COSA Activity Log
Defendant’s Exhibit F: Curriculum vitae, Fran Plaisted
CLAIM:
Permanent total disability benefits pursuant to 21 V.S.A. §645
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
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.
3. Claimant worked as an Integrated Housing Specialist at a halfway house operated by Defendant for recently released correctional center inmates. His job involved counseling and assisting the residents with such community integration skills as finding permanent housing and securing employment. Claimant did not live at the house, but was frequently there, as his duties included checking up on both the residents and the house itself.
Claimant’s February 2007 Work Injury, Subsequent Medical Course and Prior Medical History
4. On February 4, 2007 Claimant was at the halfway house, checking for frozen pipes in the basement. He tripped as he ascended the stairs and fell forward. Claimant heard a pop in his lower back and felt immediate pain both there and in his right shoulder.
5. Defendant accepted Claimant’s injury as compensable and began paying workers’ compensation benefits accordingly.
6. From the beginning Claimant treated conservatively for his low back pain, principally with Dr. Harris, his primary care provider. None of the treatments prescribed, including physical therapy, aqua therapy and injections, provided effective long-term relief.
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7. As for his right shoulder injury, initially Claimant experienced pain, limited range of motion and decreased function. A September 2007 MRI revealed findings suspicious for a labral tear, which was to be surgically repaired in January 2008. The night before the scheduled surgery, however, Claimant awoke to a vision of an angel and the Lord hovering over his bed. By the next morning his symptoms had completely resolved and the surgery was cancelled. Claimant described this experience as a “divine intervention.” Upon reexamining the shoulder in February 2008, Claimant’s primary care provider found no evidence of shoulder pathology, and offered no medical explanation for the resolution of Claimant’s symptoms.
8. With the Department’s approval, Defendant discontinued Claimant’s temporary total disability benefits on end medical result grounds effective October 29, 2007.
9. Even after having been determined to be at end medical result, in October 2008 Claimant was evaluated for entry into a functional restoration program for treatment of his chronic low back pain, but due to both high blood pressure and a limited exercise tolerance he was determined not to be a suitable candidate. Also in October 2008 Claimant was referred for cognitive behavioral therapy to assist with chronic pain management. Claimant did not feel capable of making the weekly trip to Burlington for group sessions, however, and therefore did not participate.
10. Currently Claimant experiences constant intractable low back pain radiating into his right buttock. The pain is hot, deep and intense. It is inadequately controlled with narcotic pain medications, deep breathing, meditation and prayer. Claimant can sit or stand for only brief periods without having to alternate his position due to increased pain. With a cane, he is able to take short walks up and down his road from time to time throughout the day. Climbing stairs causes severe pain, and as a result Claimant can no longer access his bedroom, which is on the second floor of his house. He now sleeps downstairs in his living room. His sleep is often interrupted by pain.
11. Claimant is most comfortable sitting in a reclining chair with his knees bent, which takes the pressure off of his lower back. At home he uses a special reclining lift chair that his primary care provider, Dr. Harris, prescribed in July 2008. The chair is equipped with a mechanism that lifts him to a standing position, thus decreasing the pain he otherwise experiences when moving from sitting to standing. After Defendant refused to pay for the chair, Claimant purchased it himself at a cost of $1,040.00.
12. Prior to the February 2007 injury Claimant enjoyed hunting, fishing, playing outside with his grandchildren and attending family gatherings. Since the injury Claimant has been limited by pain from engaging in these activities.
13. Claimant acknowledged, and the medical records reflect, that he had suffered from episodes of chronic low back pain at times prior to February 2007, but these always resolved, never interfered with his ability to work and required only occasional use of narcotic pain medications. Claimant testified credibly that since the February 2007 injury his pain has been significantly more severe, more constant and more intractable than anything he had experienced previously.
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14. Claimant’s medical history has been complicated by numerous medical conditions unrelated to his February 2007 injury. He had been plagued by knee pain for some years prior, as treatment for which he underwent bilateral knee replacement surgeries in June and July 2007. In August 2007 he underwent carpal tunnel release surgery. Claimant also suffers from obesity, sleep apnea, diabetes and high blood pressure. He was hospitalized in June 2010 for congestive heart failure, and again in August 2010 for gall bladder surgery. Claimant’s wife testified credibly that since the latter two hospitalizations Claimant’s overall function has improved. He has lost weight, is walking more and has decreased his use of pain medications.
Expert Medical Opinions
15. Drs. Harris, White and Backus all expressed opinions as to (1) the causal relationship between Claimant’s current condition and his February 2007 work injury; (2) the extent of the permanent impairment referable to that injury; and/or (3) Claimant’s current work capacity.
(a) Dr. Harris
16. Dr. Harris is board certified in internal medicine and has been Claimant’s primary care provider since 2004. He is well-positioned, therefore, to evaluate and compare Claimant’s low back condition both before and after the February 2007 work injury.
17. Dr. Harris acknowledged that prior to February 2007 Claimant had some documented degenerative disc disease in his lumbar spine, and also that he experienced intermittent episodes of low back pain. In Dr. Harris’ opinion, the February 2007 injury aggravated Claimant’s underlying disc disease to the point where it became chronic, increased in severity and now markedly interferes with his ability to engage in both work and daily living activities. Based on his experience with similarly afflicted patients, Dr. Harris does not believe that Claimant’s condition is likely to improve.
18. At Dr. Harris’ referral, in May 2009 Claimant underwent a functional capacity evaluation. The results indicated that Claimant could perform some tasks to a sedentary work level, but that due to his limited tolerance for lifting, carrying, sitting, standing and walking, he lacked the capacity to sustain even sedentary work over the course of an eight-hour work day. The evaluation did not indicate the extent to which Claimant might be able to tolerate such work for less than eight hours per day.
19. In Dr. Harris’ opinion, the combination of Claimant’s chronic pain, his reliance on narcotic pain medications and his limited tolerance for sitting, standing, walking and driving make full-time gainful employment impossible. Dr. Harris attributes all of these limitations to Claimant’s February 2007 work injury. As a result of that injury, therefore, in Dr. Harris’ opinion Claimant is permanently and totally disabled.
20. Dr. Harris acknowledged that he has no special training in orthopedics, employability or vocational rehabilitation.
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21. Dr. Harris testified that he could not recall prescribing a special lift chair for Claimant, but that generally he would not prescribe a medical device if he did not feel it was medically necessary.
(b) Dr. White
22. At his attorney’s referral, in January 2009 Claimant underwent an independent medical evaluation with Dr. White, a specialist in occupational medicine. Dr. White interviewed Claimant, reviewed his medical records and conducted a physical examination.
23. Dr. White observed that although Claimant had suffered from intermittent low back pain in the past, after his February 2007 fall at work his condition both worsened acutely and became chronic. Since the fall, furthermore, Claimant has never returned to his baseline status or level of functioning. From this Dr. White concluded, to a reasonable degree of medical certainty, that Claimant’s current condition could not be characterized as a temporary flare-up, but rather represents an aggravation of his preexisting condition causally related to his fall at work.
24. Dr. White expressed no concerns that Claimant was faking his symptoms or otherwise malingering. He acknowledged that his opinion was based primarily on Claimant’s subjective pain complaints, and particularly the history he gave as to how these changed after February 2007. It is in the nature of low back pain, however, to be a subjective phenomenon. There is, as Dr. White noted, no “pain thermometer.” I find this testimony persuasive.
25. In the course of his examination, Dr. White observed evidence of both muscle guarding and asymmetrical loss of range of motion. Although he neglected to note these findings in the physical exam portion of his report, I find credible his assertion that he would not have included them in his assessment had he not in fact observed them. Based on those findings, and with reference to the AMA Guides to the Evaluation of Permanent Impairment (5th ed.), Dr. White rated Claimant with an 8% whole person impairment referable to his lumbar spine.
26. Dr. White did not comment on Claimant’s work capacity.
(c) Dr. Backus
27. At Defendant’s request, Claimant underwent two independent medical examinations with Dr. Backus, an occupational medicine specialist – the first in July 2007, the second in September 2010.
28. In the context of his July 2007 exam Dr. Backus diagnosed Claimant with chronic mechanical low back pain, which he related causally to an injury Claimant had suffered some twenty years earlier. According to Dr. Backus, this prior injury left Claimant’s back in a weakened condition such that it became more susceptible to re-injury from even minor trauma. But for the old injury, Dr. Backus stated, Claimant likely would have recovered from his February 2007 fall at work within only a few weeks.
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29. Dr. Backus determined that Claimant had reached an end medical result for his February 2007 injury by the time of his July 2007 evaluation.
30. As to work capacity, at the time of his July 2007 exam Dr. Backus determined that Claimant had at least a sedentary work capacity, so long as he was able to alternate sitting with standing, had only occasional use of stairs and did not use his right arm for lifting, overhead work or with it outstretched.1
31. In January 2009 Defendant requested a permanent impairment rating from Dr. Backus. Rather than re-evaluating Claimant, Dr. Backus referred back to his July 2007 findings to do so. Dr. Backus had not observed any evidence of either muscle guarding or asymmetrical loss of range of motion in that examination. He therefore rated Claimant with a 0% permanent impairment.
32. Dr. Backus last evaluated Claimant in September 2010. In addition to re-examining him, Dr. Backus also reviewed the more recent medical records, vocational rehabilitation reports, employment records and depositions. Based on this information, Dr. Backus concluded that Claimant had returned to his pre-February 2007 baseline level of chronic low back pain. Finding nothing to demonstrate that Claimant’s preexisting low back condition had objectively worsened, Dr. Backus concluded that his current symptoms were no longer causally related to his work injury.
33. Dr. Backus acknowledged that neither he nor any of Claimant’s treating physicians has ever been able to determine the exact etiology of Claimant’s low back pain. In Dr. Backus’ estimation, this is the case in at least 90 percent of all chronic low back pain patients.
34. As he had in 2007, Dr. Backus determined in his subsequent evaluation that Claimant still had a sedentary work capacity. In addition to recommending that Claimant be allowed to alternate sitting and standing, Dr. Backus also suggested that Claimant should work at his own pace and take short breaks to lie down. I find that these suggestions represent a reasonable way of addressing some of the deficits noted in Claimant’s May 2009 functional capacity evaluation.
35. Dr. Backus was unsure what Claimant’s daily work tolerance would be, especially initially. In his opinion, it is Claimant’s subjective pain and disability mind set that are restricting him, not the physical condition of his back per se. If he were to increase his activity level gradually, he might develop greater tolerance, improve his conditioning level and thereby be able to work more hours. I find this testimony credible.
1 Presumably this last restriction related to Claimant’s right shoulder injury, which at the time was still symptomatic.
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Claimant’s Vocational History and Current Work Status
36. Claimant is now 56 years old. His work history is varied and impressive. He has worked as a deputy sheriff, a car salesman, a pastor, a youth runaway counselor, an alcohol and drug counselor and an anger management counselor. The latter jobs Claimant was able to secure, maintain and excel at despite having only a high school education, with no college coursework or credits whatsoever. Claimant has attended numerous seminars and training sessions ancillary to his employment over the years.
37. Because Claimant was restricted from climbing stairs following his February 2007 injury, he was unable to return to work at Defendant’s halfway house.
38. Claimant has been receiving social security disability benefits since August 2008. In order to avoid an offset against his monthly social security benefit, he is limited to no more than approximately $1,000.00 in monthly wages.
39. In the summer of 2009 Claimant began working as a volunteer member of the Newport Community Justice Center’s Reparative Board. The board is comprised of community members who hear cases referred from the court system and determine how a criminal offender might best repair the harm caused by his or her offense. The board meets monthly, typically for 2 to 3 hours. Dara Wiseman, the board’s staff coordinator, testified credibly that Claimant is able to participate fully in meetings, though he typically alternates sitting and standing throughout. Claimant has missed some meetings since joining the board, but Ms. Wiseman could not recount exactly how many were due to low back pain as opposed to other health issues.
40. In January 2010 Jess Tatum, the director of the Newport Community Justice Center, approached Claimant with an offer to become a coordinator in the Center’s Circles of Support and Accountability (COSA) program. The goal of the COSA program is to provide a network of volunteers to assist recently released criminal offenders in making a successful transition from prison to the community. The coordinator’s role is to assemble the appropriate volunteers for each offender, and then once the support “circle” is formed, to provide leadership, training and assistance as necessary.
41. Claimant accepted Mr. Tatum’s offer and entered into a contract whereby he would be paid $15.00 per hour for his services as a COSA coordinator. The contract provided that Claimant’s time commitments would vary with need and thus no set work schedule was established. Mr. Tatum testified credibly that Claimant’s target was to work approximately 15 hours per week. Claimant acknowledged that at this rate his monthly earnings would stay below his social security disability offset trigger.
42. In calendar year 2010 Claimant worked a 15-hour week only once. On two other occasions he worked 11 and 12 hours respectively. There were 22 weeks during which he did not work at all. Claimant’s average for the remaining 27 weeks was not quite 5 hours per week.
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43. Claimant is able to perform some of his COSA responsibilities from home, either by computer or by phone. At these times, he can sit, stand, recline or take breaks as necessary. Many of Claimant’s responsibilities require in-person contact, however, for example, meetings with still incarcerated and/or recently released offenders, with parole officers and with other COSA volunteers. Both Claimant and Mr. Tatum testified credibly that it is Claimant’s inability to attend such meetings that is limiting his weekly hours.
44. Based on Claimant’s work experience and notwithstanding that he lacks a college degree, Mr. Tatum believes that Claimant is the best-qualified COSA coordinator in the program. He has great confidence in Claimant’s ability to do the job and wants to continue working with him in the future. Unfortunately, Claimant’s inability to maintain consistent work hours is a formidable barrier. To overcome this obstacle, Mr. Tatum has taken to assigning a co-coordinator to Claimant’s cases, so that when Claimant is unable to attend to a work assignment the co-coordinator can fill in for him.
45. Claimant has been working with Ken Yeates, a Vermont-licensed vocational rehabilitation counselor, since he was determined entitled to such services in March 2010. Unfortunately, his unrelated health issues precluded him from participating in vocational rehabilitation planning through the summer of 2010. By mid-October, however, Mr. Yeates reported that Claimant had lost weight and appeared able to move more easily and with less discomfort.
46. Mr. Yeates has fashioned a return to work plan aimed at increasing Claimant’s COSA coordinator work to a consistent 15 hours per week. This is what Claimant feels is achievable physically, plus it will not affect his social security disability income. To accomplish this goal, Mr. Yeates proposes to purchase new computer equipment for Claimant’s use and to improve his keyboarding and computer skills. The anticipated cost of Mr. Yeates’ plan is $1,150.00.
47. I find that Mr. Yeates’ plan presents a cost-effective way of increasing Claimant’s general marketability from a vocational rehabilitation perspective. However, it does not acknowledge what both Claimant and Mr. Tatum identified as the key factor limiting Claimant’s capacity to work more hours in his current job, which is his inability to attend in-person meetings. In that respect, I find that the plan as currently written is unlikely to accomplish its stated goal, though it may be an appropriate starting point for future vocational rehabilitation planning.
48. Claimant’s average weekly wage at the time of his injury was $467.20. If he was to work 15 hours per week at his current COSA coordinator pay rate ($15.00 per hour), his weekly gross pay would total $225.00. Combining these wages with Claimant’s social security disability income would approximate his pre-injury average weekly wage.
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Expert Vocational Rehabilitation Opinions
49. Each party presented its own vocational rehabilitation expert opinion as to whether Claimant is now permanently and totally disabled – James Parker on Claimant’s behalf, Fran Plaisted on Defendant’s.
(a) James Parker
50. Mr. Parker has a master’s degree in counseling and more than 40 years experience in the field of vocational rehabilitation. He is not a licensed vocational rehabilitation counselor in Vermont.
51. Mr. Parker described Claimant’s ability to secure his current COSA coordinator position as “impressive” given his lack of basic credentials for work of this type. According to his research, 92 percent of those employed in the social work sector have at least some college credit, if not a college degree. Mr. Parker attributed Claimant’s success in the field to the network of contacts he has managed to develop over the years and, most recently, to an extremely accommodating employer.
52. Mr. Parker characterized Claimant’s current COSA coordinator job as so highly accommodated as to be “basically non-competitive.” Absent the in-person interactions and relationship building typically associated with counseling work, according to Mr. Parker Claimant is not even performing the essential duties of the job. Mr. Parker described Claimant’s position as unique, and doubted that he would be able to replicate it in any other counseling environment.
53. Based on Claimant’s track record since beginning his COSA coordinator work, Mr. Parker was not hopeful that he would be able to increase his hours to a consistent 15 per week, even with vocational rehabilitation. He acknowledged the possibility that Claimant might be able to transfer his work experience into college credit, thus improving his employability in the counseling field at least from a credentialing standpoint. Even were he to do so, however, in Mr. Parker’s opinion Claimant’s pain, fatigue and lack of endurance are too limiting to sustain employment in any well-known branch of the labor market. On those grounds, Mr. Parker concluded that Claimant is permanently and totally disabled.
54. I find credible Mr. Parker’s assessment that Claimant’s current level of sporadic work does not qualify as regular gainful employment. It is not sufficiently consistent to be “regular,” and it does not generate sufficient income to be “gainful.”
(b) Fran Plaisted
55. Ms. Plaisted has a masters’ degree in rehabilitation counseling and more than 20 years experience in the vocational rehabilitation field. She is a Vermont licensed vocational rehabilitation counselor.
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56. In Ms. Plaisted’s opinion, vocational rehabilitation services are available that reasonably might restore Claimant to suitable employment. For that reason, it is premature to declare him to be permanently and totally disabled.
57. Ms. Plaisted detailed various accommodations that might enable Claimant to meet his target of 15 hours per week in his current COSA coordinator job. Some of these are aimed at increasing his productivity at home. For example, an adjustable workstation would allow him to alternate sitting and standing, and a stair lift would allow him to move his home office to a quieter room upstairs. To increase his productivity outside the home, Ms. Plaisted suggested videoconferencing as a means of facilitating greater interaction with both clients and volunteers.
58. Based on Claimant’s employment history, Ms. Plaisted identified a number of sedentary jobs for which Claimant appears to have transferable skills. Should he be unable to increase his COSA coordinator hours, therefore, the next step in the vocational rehabilitation process will be to investigate whether he might be able to use these skills to obtain suitable work with a different employer. This step will involve conducting a labor market survey to determine which jobs exist in Claimant’s labor market area. If additional training is necessary for a particular job or set of jobs, that might be considered as well. A repeat functional capacity evaluation also may be useful, as some of Claimant’s unrelated health issues have improved since the evaluation he underwent in 2009. That evaluation concluded only that Claimant was incapable of full time work, furthermore, and did not address his capacity for part time work.
59. I find credible Ms. Plaisted’s assertion that Claimant has not yet completed the vocational exploration process. Consistent with Mr. Parker’s testimony, however, Ms. Plaisted acknowledged that no amount of vocational rehabilitation services can change a person’s physical work capacity.
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. Claimant asserts that as a result of his February 4, 2007 work injury he is now permanently and totally disabled under the “odd lot” provision of 21 V.S.A. §644(b). Defendant argues that Claimant’s current medical condition is no longer causally related to his compensable work injury. Even if it is, Defendant asserts that Claimant has not sustained his burden of proving permanent total disability.
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Causal Relationship
3. Conflicting expert medical opinions were presented as to the causal relationship, if any, between Claimant’s current condition and his work injury. Testifying on Claimant’s behalf, Drs. Harris and White both conceded that Claimant had suffered from intermittent episodes of low back pain prior to February 2007, likely due to degenerative disc disease in his lumbar spine. Both concluded, however, that the work injury aggravated this preexisting condition to the point where it worsened acutely, became chronic and now significantly interferes with Claimant’s function. In contrast, Dr. Backus testified that Claimant’s condition has returned to its pre-injury baseline, with no evidence that it had objectively worsened as a result of the February 2007 work injury.
4. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
5. All of the experts here are well qualified to render opinions as to the causal relationship between Claimant’s February 2007 injury and his current condition. Each of them conducted a sufficiently comprehensive evaluation, based on a sufficient review of the pertinent medical records, to support their opinions. As to the other factors, however, I conclude that the opinions expressed by Drs. Harris and White are the most persuasive.
6. Dr. Harris’ credibility benefits from his longstanding relationship as Claimant’s primary care provider. More so than either of the other two experts, he was best qualified to compare and contrast Claimant’s condition before and after the February 2007 injury.
7. As to the objective support underlying each expert’s opinion, I am mindful of the fact, as Dr. Backus acknowledged, that it is rarely possible to determine the exact etiology of chronic low back pain. It is, as Dr. White described, an inherently subjective phenomenon, and there is no “pain thermometer” by which to measure it. In that context, therefore, “objective support” may take the form not of medically verifiable findings such as one might see on an MRI study, but rather of credible evidence showing how a person’s pain has impacted his or her ability to function. See, e.g., Badger v. BWP Distributors, Inc., Opinion No. 05-11WC (March 25, 2011).
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8. There is sufficiently credible objective evidence to establish that Claimant’s condition worsened appreciably as a result of the February 2007 work injury. Pain that previously had been intermittent became chronic. It came to interfere with both work and recreational activities. It did not respond to narcotic pain medications and even now is poorly controlled. It has required lifestyle changes that were never necessitated before. Given all of these changes, for Dr. Backus to conclude in September 2010 that Claimant had returned to his pre-injury baseline of low back pain, such that his current complaints were no longer causally related to his February 2007 work injury, is simply not persuasive. The opinions of Drs. Harris and White are more credible in this regard.
9. I conclude that Claimant has sustained his burden of proving that his current condition is causally related to his February 2007 work injury.
Permanent Total Disability
10. Claimant contends that as a consequence of his work injury he is now permanently and totally disabled. Defendant asserts that Claimant has a work capacity and has not yet exhausted his vocational rehabilitation options. Therefore, it argues, it is premature to declare him permanently and totally disabled.
11. Under Vermont’s workers’ compensation statute, a claimant is entitled to permanent total disability benefits if he or she suffers one of the injuries enumerated in §644(a), such as total blindness or quadriplegia. In addition, §644(b) provides:
The enumeration in subsection (a) of this section is not exclusive, and, in order to determine disability under this section, the commissioner shall consider other specific characteristics of the claimant, including the claimant’s age, experience, training, education and mental capacity.
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12. The workers’ compensation rules provide further guidance. Rule 11.3100 states:
Permanent Total Disability – Odd Lot Doctrine
A claimant shall be permanently and totally disabled if their work injury causes a physical or mental impairment, or both, the result of which renders them unable to perform regular, gainful work. In evaluating whether or not a claimant is permanently and totally disabled, the claimant’s age, experience, training, education, occupation and mental capacity shall be considered in addition to his or her physical or mental limitations and/or pain. In all claims for permanent total disability under the Odd Lot Doctrine, a Functional Capacity Evaluation (FCE) should be performed to evaluate the claimant’s physical capabilities and a vocational assessment should be conducted and should conclude that the claimant is not reasonably expected to be able to return to regular, gainful employment.
A claimant shall not be permanently totally disabled if he or she is able to successfully perform regular, gainful work. Regular, gainful work shall refer to regular employment in any well-known branch of the labor market. Regular, gainful work shall not apply to work that is so limited in quality, dependability or quantity that a reasonably stable market for such work does not exist.
13. A finding of odd lot permanent total disability is not to be made lightly. In a system that embraces successful return to work as the ultimate goal, and vocational rehabilitation as a critical tool for achieving it, to conclude that an injured worker’s employment barriers realistically cannot be overcome means admitting defeat, acknowledging that he or she probably will never work again. As Rule 11.3100 makes clear, such a finding should not be made until first, the injured worker’s physical capabilities are accurately assessed, and second, all corresponding vocational options are comprehensively considered and reasonably rejected. Hill v. CV Oil Co., Inc., Opinion No. 15-09WC (May 26, 2009); Hurley v. NSK Corporation, Opinion No. 07-09WC (March 4, 2009); Gaudette v. Norton Brothers, Inc., Opinion No. 49-08WC (December 3, 2008).
14. In this case, Claimant underwent a functional capacity evaluation in May 2009. Although the results indicated that he lacked even a sedentary work capacity, it is unclear to what extent his other health conditions, some of which now have resolved, might have impacted the results. Perhaps more important in the context of this claim, the 2009 evaluation considered only Claimant’s capacity for full-time work, and did not address what his part-time work capacity might be.
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15. Dr. Backus presented a more credible assessment of Claimant’s current work capacity, one that will accommodate sedentary work on at least a part time basis. His suggestions as to allowing Claimant to work at his own pace and to alternate positions target at least some of the endurance deficiencies that the 2009 functional capacity evaluation revealed. I conclude from this that Claimant’s work capacity is not so limited as to preclude further consideration from a vocational rehabilitation perspective.
16. Claimant’s vocational expert, Mr. Parker, concluded that even with vocational rehabilitation assistance Claimant’s pain, fatigue and endurance levels are so limiting as to render him permanently incapable of regular gainful employment. I disagree. As Ms. Plaisted suggested in her testimony, even at his current level of functioning viable vocational options exist for someone with Claimant’s transferable skills. Improving his computer skills, modifying his home office, using videoconferencing technology, obtaining college credit for his work experience – these are all steps that cannot help but improve Claimant’s employment potential, whether it be as a COSA coordinator or in some other work setting.
17. Vermont’s workers’ compensation rules establish a hierarchy of options that a vocational rehabilitation counselor is to consider in drafting a suitable return to work plan. Workers’ Compensation Rule 55.2000. The first step in the hierarchy is to return the claimant to his or her pre-injury employer, in either a modified or a different job. Workers’ Compensation Rule 55.2100. If that fails, then the second step is to consider other employers. Workers’ Compensation Rule 55.2200. Steps three, four and five involve retraining, from on-the-job through formal education. Workers’ Compensation Rules 55.2300-55.2500. The final step considers self-employment as an option. Workers’ Compensation Rule 55.2600.
18. Throughout the process, the counselor’s job is to determine first, at what step in the hierarchy the injured worker is likely to become re-employed, and second, what type of assistance is necessary in order to make that happen. If it becomes apparent that the claimant is unlikely to achieve success at one stage of the hierarchy, the plan can be amended so that both counselor and claimant can consider the next step. Workers’ Compensation Rule 55.6000. In this way, the rules envision a process whereby all reasonable return to work options are considered before either party throws in the towel.
19. I conclude that Mr. Parker’s analysis of Claimant’s return to work potential focused primarily on his inability to sustain regular gainful employment in his current COSA coordinator position. It did not adequately consider whether with the appropriate vocational rehabilitation assistance Claimant might be employable at some other level of the hierarchy, however.
20. It is Claimant’s burden of proof to show that in his labor market area no viable vocational options exist for a person with his physical capabilities, his limitations and his transferable job skills. As the vocational exploration process has only just begun, I am as yet unconvinced that this is the case.
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21. I conclude that Claimant has failed to establish that he is permanently and totally disabled.
Permanent Partial Disability
22. The parties presented conflicting expert testimony as to the extent of the permanent partial disability Claimant suffered as a consequence of his February 2007 work injury. Having observed evidence of both muscle guarding and asymmetrical loss of range of motion, Dr. White rated Claimant with an 8% whole person impairment. Dr. Backus observed no such evidence, and therefore found no impairment.
23. These two experts are well known to this Department, and I consider them equally proficient at rating the extent of an injured worker’s permanent impairment. The process is not an exact science, however. What one doctor may observe during the course of an examination, another doctor may not see.
24. In this case, I conclude that Dr. White’s opinion is more credible, and that Claimant suffered an 8% whole person permanent impairment as a result of his February 2007 work injury. Reclining Lift Chair
25. Claimant asserts that the reclining lift chair that Dr. Harris prescribed in July 2008 constitutes a reasonable medical supply necessitated by his February 2007 injury. Claimant seeks reimbursement from Defendant for the cost of the chair in accordance with 21 V.S.A. §640(a).
26. Dr. Harris could remember none of the details of his prescription. His assertion that he generally does not prescribe a medical device unless he feels it is medically necessary is insufficient to establish that the chair was necessitated by Claimant’s February 2007 work injury. I conclude that Claimant is not entitled to reimbursement, therefore.
Costs and Attorney Fees
27. Claimant has submitted a request for costs totaling $4,967.19 and attorney fees in an amount to be determined. Claimant is entitled to an award of only those costs that relate directly to the claims upon which he prevailed, Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003), namely (a) causal relationship; and (b) permanent partial disability. 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.
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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 an 8% permanent impairment referable to the spine, in accordance with 21 V.S.A. §648;
2. Interest on the above amount beginning on October 29, 2007 and calculated in accordance with 21 V.S.A. §664;
3. Costs and attorney fees in amounts to be determined, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 6th day of July 2011.
______________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Gideon Langdell v. G. W. Savage Corp. (June 24, 2009)

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

Gideon Langdell v. G. W. Savage Corp. (June 24, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Gideon Langdell Opinion No. 19-09WC
v. By: Jane Dimotsis, Esq.
Hearing Officer
G.W. Savage Corp.
For: Patricia Moulton Powden
Commissioner
State File No. W-07750
OPINION AND ORDER
Hearing held in Montpelier on April 11, 2008
Record closed on May 21, 2008
APPEARANCES:
Michael Green, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUES PRESENTED:
1. What, if any, permanent partial disability benefits is Claimant entitled to receive as a consequence of his November 22, 2004 work-related injury?
2. Is Defendant responsible for the medical expenses Claimant incurred between March 19, 2006 and November 17, 2006?
3. Is Claimant entitled to mileage reimbursement for his travel to and from medical appointments?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Curriculum vitae, Verne Backus, M.D.
Defendant’s Exhibit A: Affidavit of Bill Savage, April 2, 2008
Defendant’s Exhibit B: Curriculum vitae, Craig Mikio Uejo, M.D.
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CLAIM:
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Medical benefits pursuant to 21 V.S.A. §640
Mileage reimbursement pursuant to Workers’ Compensation Rule 12.2100
Interest pursuant to 21 V.S.A. §664
Costs and attorney’s fees pursuant to 21 V.S.A. §678
JOINT STATEMENT OF UNCONTESTED FACTS:
1. On November 22, 2004 Claimant was employed by Defendant as a mason. He injured his back when the mason tender lost his footing and left Claimant holding a 100-pound object.
2. On June 13, 2005 Dr. Nancy Binter performed an L4-5 laminotomy and discectomy. In a letter dated November 29, 2005 Dr. Binter stated that Claimant had reached an end medical result. She rated him for permanency at “DRE Category III an 11% whole person disability according to the AMA 5th Edition Impairment Guide.”
3. Defendant’s workers’ compensation insurance carrier filed a Form 27 on December 12, 2005, which the Department approved on December 20, 2005.
4. The Department notified Claimant that the Form 27 was determined to be supported and that he had the right to contest the decision.
5. Defendant subsequently paid Claimant all of the benefits due in accordance with Dr. Binter’s 11% whole person rating, which amounted to 60.5 weeks at his weekly compensation rate of $494.37.
6. Claimant retained Dr. Verne Backus to do a permanency evaluation. Dr. Backus concluded that Claimant had a 29% whole person impairment.
7. Defendant retained Brigham & Associates to perform an impairment rating review, which was prepared by Craig Uejo, M.D. That evaluation concluded that Claimant’s current impairment is 29% whole person. In Dr. Uejo’s opinion, 7% is attributable to the November 22, 2004 injury.
8. The Department has provided the parties with all records relating to Claimant’s previous workers’ compensation claims.
9. Claimant had a previous spine fusion following a work place injury in approximately 1978. The Department has no files pertaining to this claim. There is no evidence that Claimant received a permanency award for this injury.
10. On July 3, 1991 while employed by Conklin Construction, Claimant injured his back. The workers’ compensation claim bearing State File No. E-01756 resulted in a Form 22 settlement for a 17% spine impairment.
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11. This was a compromise between the 13% whole person rating assessed by Dr. Carol Talley and an 8% whole person impairment assessed by Dr. John Peterson. The 17% spine rating is equivalent to 10.5% whole person.
12. In his evaluation, performed under the Third Edition of the AMA Guides, Dr. Peterson concluded that Claimant’s impairment was 11% whole person. He was aware of the earlier spine fusion surgery related to Claimant’s 1978 work injury and deducted 3% for that. Dr. Peterson explained:
I feel that it would be appropriate to deduct 3% of the whole person based on his previous fusion. This would leave an impairment of 8% of the whole person, which can be converted to 14% of the spine. It does not appear that Dr. Talley took this fusion into consideration when she gave her permanent partial impairment rating.
13. Claimant, therefore, has received benefits equal to a 21.5% whole person rating – 11% based on Dr. Binter’s evaluation and 10.5% from the settlement of his earlier claim. This is 7.5% less than his current 29% rating from all injuries.
14. Defendant has claimed that Claimant is not entitled to medical benefits following an intervening event referenced in a handwritten medical report, dated March 22, 2006, which states that Claimant suffered an exacerbation of his back pain on 3/19/06 when he attempted to stop his truck from rolling back after the brake did not hold.
15. No medical bills have been paid since that date, in accordance with the Department’s October 24, 2006 determination that the truck incident was a “significant intervening event that likely broke the causal connection” between Claimant’s November 2004 work injury and his current condition.
16. Dr. Backus states as follows:
There was no specific injury on that date. I do not see this as an aggravating even[t] for his low back. In an attempt to take a few steps or even try to run towards his truck in an emergency is what would be considered, in my opinion, a normal activity and not an injury. It is therefore my opinion a reflection that his ongoing back pain was not aggravated at that point in time. If it was temporarily worsened, it would have been a recurrence or just a continuance.
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim. Judicial notice also is taken of the Joint Statement of Uncontested Facts recorded above, and of relevant portions of the AMA Guides to the Evaluation of Permanent Impairment (“AMA Guides”), 5th ed.
Expert Medical Opinions as to Apportionment of Claimant’s Permanent Impairment
3. As the parties have stipulated, Claimant has suffered three separate work-related low back injuries, each of which resulted in some permanent impairment to his spine. The first injury occurred in or about 1978. Claimant underwent a spinal fusion as a consequence of this injury. There is no evidence that he received any permanent partial disability benefits thereafter.
4. Claimant suffered a second work-related low back injury in 1991. In 1992 the Department approved an Agreement for Permanent Partial Disability Compensation (Form 22) that both he and his employer had executed. By the terms of that agreement, Claimant received compensation for a 10.5% whole person permanent impairment, representing a compromise between Dr. Talley’s 13% rating and Dr. Peterson’s 8% rating. Both doctors calculated their ratings in accordance with the 3rd edition of the AMA Guides, the version that was in effect at the time. In calculating his rating, however, Dr. Peterson apportioned away the 3% impairment he attributed to Claimant’s earlier injury and 1978 spinal fusion, specifically subtracting that amount from what he determined to be a total impairment of 11%. Dr. Talley did not do so. By compromising the two ratings, therefore, the permanency benefits Claimant received in 1992 included at least some compensation for the 1978 injury as well, although admittedly not all that might have been rated and paid separately.
5. The focus of the current claim centers on Claimant’s November 2004 work injury. As a consequence of that injury, Dr. Binter rated him with an 11% whole person permanent impairment, and Claimant received permanent partial disability benefits in accordance with that rating. Dr. Binter made no attempt to apportion any part of Claimant’s permanent impairment to either of his previous injuries.
6. Both Claimant’s expert, Dr. Backus, and Defendant’s expert, Dr. Uejo, agree that Dr. Binter’s rating was incorrect and that the proper rating for Claimant’s current impairment, before apportionment, is 29% whole person. The experts differ, however, as to how much of that impairment relates to Claimant’s November 2004 injury and how much relates back to his 1978 and 1991 injuries.
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7. The 5th edition of the AMA Guides provides some direction to physicians faced with apportionment issues. Generally, the AMA Guides suggest that a subtraction method be utilized – calculate the claimant’s total current impairment rating, then subtract the rating referable to his or her prior impairment; the remainder is the impairment specifically attributable to the current injury. AMA Guides (5th ed.), §§1.6b and 2.5h. In situations where a prior injury either was not rated or was rated according to an earlier version of the AMA Guides, the physician is directed to take the necessary steps to allow for both injuries to be rated via the same edition, id. In all cases, however, the AMA Guides specifically defer to each state’s “customized methods for calculating apportionment,” id. at §1.6b, and mandate that the physician’s apportionment determination “should follow any state guidelines,” id. at §2.5h.
8. Dr. Backus’ apportionment calculation utilized a straightforward subtraction approach – he subtracted the 10.5% whole person impairment for which Claimant was paid after his 1991 injury from the 29% whole person impairment he rated currently, and attributed the remaining 18.5% whole person impairment to the November 2004 injury. Claimant having already received compensation for the November 2004 injury in accordance with Dr. Binter’s 11% whole person rating, the remainder due him under Dr. Backus’ approach would be 7.5%.
9. Dr. Uejo utilized a different approach. Mindful of the fact that the impairment referable to Claimant’s 1991 injury had been rated in accordance with the 3rd edition of the AMA Guides, Dr. Uejo began his apportionment analysis by recalculating that impairment according to the 5th edition of the Guides instead. Using the 5th edition’s methodology, he rated Claimant with a 22% whole person impairment causally related to the 1991 injury. Subtracting that from the 29% impairment that both he and Dr. Backus had rated for Claimant’s current condition, Dr. Uejo concluded that Claimant had suffered only a 7% impairment as a result of the November 2004 injury alone. Given that Claimant already has been compensated for an 11% impairment in accordance with Dr. Binter’s rating, under Dr. Uejo’s analysis no further permanency benefits would be due. To the contrary, according to Dr. Uejo’s apportionment methodology, Claimant has been overpaid.
The March 2006 Truck Incident
10. On March 19, 2006 Claimant drove his pickup truck to a friend’s house. Claimant parked the truck in his friend’s driveway, set the emergency brake and exited. Moments later his friend exclaimed that the truck was rolling down the hill. Claimant turned and began running after the truck. After running only a short distance, he realized that he would not be able to catch the truck and stopped. The truck continued down the hill and crashed into a tree.
11. At the time of this incident, Claimant already had been complaining of ongoing low back pain, radiating pain, burning and numbness into his legs and gait instability. Claimant was troubled by these symptoms and felt dissatisfied with Dr. Binter’s determination that she had nothing more to offer him. He had discussed with his wife whether he should seek a second opinion, and they had agreed that he should do so.
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12. To that end, Claimant reported his ongoing symptoms to Dr. Towle, his primary care provider, in December 2005 and again in January 2006. In order to better evaluate his current condition, Dr. Towle scheduled Claimant for an MRI, which he underwent in February 2006, some weeks before the March 2006 truck incident.
13. The February 2006 MRI revealed multi-level degenerative disc disease and evidence of focal arachnoiditis at L4-5, the site of his earlier surgeries. Arachnoiditis is an inflammation of the membranes surrounding the central nervous system, including the spine. As the membranes become more inflamed, they may cause the tissue to impinge on the nerves, which causes pain. Arachnoiditis is a known complication from spinal surgery.
14. As a follow-up to his February 2006 MRI, at the time of the March 2006 truck incident Claimant already was scheduled to see Dr. Penar, a neurosurgeon, to discuss possible surgical treatment for his ongoing symptoms. This evaluation occurred in April 2006. Dr. Penar determined that Claimant’s symptoms were unlikely to be correctable surgically. Instead, he referred Claimant for epidural steroid injections.
15. Three days after the March 2006 truck incident, on March 22, 2006 Claimant returned to Dr. Towle. Dr. Towle’s office note stated that Claimant presented with “exac[rebated] back pain” that had begun when “he tried to stop his truck from rolling back after he got out of it.”
16. Claimant testified credibly that Dr. Towle’s office note was erroneous, and that he did not in any way attempt to stop or hold back his truck from rolling. As noted above, Claimant stated that after the truck began to roll down the hill, he tried to run after it but quickly realized that he would not be able to reach it in time. Claimant testified that after running for only a short distance the combination of his unstable gait and low back pain prevented him from continuing.
17. Claimant also testified credibly that the March 2006 truck incident did not cause any appreciable increase in his low back pain. As noted above, he had been experiencing ongoing symptoms for some time before that event and these continued to the same extent afterwards.
18. Dr. Backus testified that based on Claimant’s description of the event, the March 2006 truck incident caused merely a minor experience of symptoms and did not result in any specific new injury. He noted that Claimant already had taken steps to obtain a second opinion from Dr. Penar to determine what, if any, treatment might be reasonable for his ongoing symptoms. With that in mind, Dr. Backus concluded that the medical treatment Claimant received from March 2006 until November 2006 was causally related to the November 2004 work injury, not to any intervening injury or condition related to the March 2006 event.
19. As of the date of his November 17, 2006 permanent impairment evaluation, Dr. Backus determined that Claimant had reached an end medical result for the November 2004 work injury.
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20. Dr. Uejo concurred with Dr. Backus’ conclusion that the March 2006 truck incident did not cause any specific new injury. Unlike Dr. Backus, however, Dr. Uejo posited that the truck event caused Claimant’s symptoms to flare up temporarily. In Dr. Uejo’s opinion, therefore, the medical treatment Claimant received from March 22, 2006 until Dr. Backus’ end medical result date in November 2006 was causally related to the truck incident, not to his prior work injury. Dr. Uejo admitted that in forming this opinion he was not specifically aware that Claimant already had scheduled a second opinion with Dr. Penar prior to the truck incident, in preparation for which he already had undergone an MRI in February 2006.
Mileage Reimbursement
21. Claimant’s work for Defendant required him to travel to job sites throughout the state. Sometimes Claimant commuted directly to a job site from his home in Johnson, Vermont, and sometimes he traveled first to Defendant’s main office before heading out. Sometimes he used Defendant’s dump truck to travel, particularly if he needed to transport bricks or staging. Other times he used his own pick-up truck. In either event, Defendant provided Claimant with a gas credit card with which to purchase gas, whether for the company-owned dump truck or for Claimant’s personal pick-up.
22. No evidence was presented as to what Claimant’s average commuting distance was, taking into account that he sometimes commuted directly from home to a job site rather than traveling first to Defendant’s main office. Defendant’s policy was to compensate employees for travel time only for distances exceeding 35 miles each way.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
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Apportionment of Permanent Impairment
3. Vermont’s workers’ compensation statute requires apportionment in cases where a prior impairment has been both rated and paid. 21 V.S.A. §648(d). Absent those specific circumstances, the Commissioner retains discretion whether to apportion or not. See Murray v. Home Depot USA, Inc., Opinion No. 41-08WC (October 20, 2008).
4. Clearly here, at the time of his November 2004 injury Claimant had suffered prior impairments that had been both rated and paid. The parties agree, therefore, that some apportionment is mandatory under the statute. The question before me now is how best to apportion – whether simply to rely on the compromise rating pursuant to which Claimant was paid in 1992, as Dr. Backus suggests, or whether to recalculate the extent of his 1992 impairment in accordance with the most current edition of the AMA Guides, as Dr. Uejo did.
5. The AMA Guides seem to favor Dr. Uejo’s approach, particularly where, as here, the prior impairment rating was calculated according to an earlier edition. But the Guides also direct physicians to defer to each state’s “customized method” for determining how best to apportion. In Vermont, in order for mandatory apportionment to be triggered the statute requires that a prior impairment be not simply rated, but also paid as well. It is reasonable to infer that the statutory reference to payment requires that the apportionment calculation be based on the rating that actually was paid, not the one that might have resulted had a more recent edition of the Guides been available at the time. To rule otherwise would open up all prior impairment ratings to retrospective analysis and recalculation. This would undermine the binding nature of prior approved compensation agreements and the finality of permanency awards.
6. I conclude, therefore, that the most appropriate method for apportioning Claimant’s total current impairment is to subtract the 10.5% whole person impairment that was rated and paid in 1992 from his current 29% impairment. The remaining 18.5% is the impairment attributable to Claimant’s November 2004 injury. Of that, 11% already has been paid, leaving a balance due of 7.5%.
Medical Benefits from March 2006 until November 2006
7. Defendant asserts that Claimant’s medical treatment from March until November 2006 was necessitated by the March 2006 truck incident rather than the original compensable injury. The record is clear, however, that Claimant already had taken steps to seek further evaluation and treatment for his ongoing symptoms prior to that event. I am convinced that the truck incident in no way precipitated Claimant’s need for ongoing medical treatment from March until November 2006. Defendant remains responsible for the medical expenses he incurred during that period.
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Mileage Reimbursement for Travel to and from Medical Appointments
8. Last, Defendant argues that Claimant is not entitled to mileage reimbursement for travel to and from his medical appointments. Workers’ Compensation Rule 12.2100 provides that a claimant is entitled to reimbursement only for mileage that is “beyond the distance normally traveled to the workplace.” Here, Claimant sometimes commuted directly from home to a work site, and therefore did not have a “normal” travel distance upon which to base a mileage reimbursement calculation.
9. There was evidence, however, that Defendant’s policy is to use 35 miles each way as the basis for calculating its employees’ entitlement to compensation for their travel time. It is reasonable under the circumstances to use the same distance as a basis for calculating Claimant’s entitlement to mileage reimbursement. In accordance with Workers’ Compensation Rule 12.2100, Defendant is obligated to reimburse Claimant for travel to and from medical appointments that were more than 35 miles away from his home.
10. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $2,183.35 and attorney’s fees totaling $5,103.00 (56.7 hours at the mandated rate of $90.00 per hour). An award of costs to a prevailing claimant is mandatory under the statute. As Claimant has prevailed, these are awarded.
11. As for attorney’s fees, these lie within the Commissioner’s discretion. I find that they are appropriate here, and therefore these are awarded as well.
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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 7.5% whole person impairment rating referable to the spine;
2. Medical benefits covering treatment for Claimant’s low back injury from March 2006 until November 2006;
3. Mileage reimbursement in accordance with Conclusion of Law No. 10 above;
4. Interest on the above amounts in accordance with 21 V.S.A. §664; and
5. Costs totaling $2,183.35 and attorney’s fees totaling $5,103.00.
DATED at Montpelier, Vermont this 24th day of June 2009.
________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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