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

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William Boyd v. Kennametal Inc. (November 10, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
William Boyd Opinion No. 33-10WC
v. By: Sal Spinosa, Esq.
Hearing Officer
Kennametal, Inc.
For: Valerie Rickert
Acting Commissioner
State File No. S-14574
OPINION AND ORDER
Hearing held in Montpelier, Vermont on July 26, 2010
Record closed on September 1, 2010
APPEARANCES:
Ronald Fox, Esq., for Claimant
Glenn Morgan, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant entitled to permanent total disability benefits as a consequence of his compensable work-related injury?
EXHIBITS:
Joint Exhibit I: Medical and vocational rehabilitation records
Joint Exhibit II: Deposition of Peter Upton, M.D., June 10, 2009
CLAIM:
Permanent total disability benefits pursuant to 21 V.S.A. §644
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
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Claimant’s Work Injury
3. Claimant, who is now 42 years old, worked for Defendant as an industrial electrician. On January 31, 2002 he slipped off a ladder. Initially he experienced pain in the right shoulder region. He treated with Dr. Lichtenstein, a family practitioner, and returned to work a week later.
4. Soon thereafter the pain shifted to his lower back and sacrum region. Claimant subsequently was diagnosed with a disc herniation at L4-5 requiring surgery.
5. Defendant accepted Claimant’s injury as compensable and paid workers’ compensation benefits accordingly.
Claimant’s Surgeries
6. On March 20, 2003 Dr. Lon Howard, an orthopedic surgeon, performed an L4-5 fusion. The surgery was performed posteriorly and included the use of metal hardware secured by screws and a bone graft. Claimant was in good post-operative condition and felt relief for six to eight weeks after his surgery.
7. As his activity level increased, however, so did Claimant’s back pain. He described an unbearable band of pain across his lower back, worse in the morning than at night. Claimant judged his back pain to be more intense after the surgery than it had been before, and getting worse. His pain was heightened by sitting, standing, walking and physical therapy. Lying down, massage, hot baths and the use of a back brace provided some pain relief.
8. In April 2004 Claimant consulted with Drs. Ames and Banco, both orthopedic surgeons, about further treatment. Both recommended a second surgery. According to Dr. Banco, Claimant’s first surgery had resulted in a failed fusion. In addition, the hardware screws had loosened, and therefore the supporting hardware would have to be removed and replaced.
9. Orthopedic surgeon Robert Monsey performed Claimant’s second surgery on May 3, 2004. This surgery involved both an anterior re-fusion at L4-5 and a posterior fusion at L5-S1.
10. Claimant saw Dr. Monsey post-operatively for pain around his incisions. Dr. Monsey found nothing abnormal about Claimant’s complaints and prescribed medication and physical treatment.
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11. On February 1, 2005 Claimant saw Dr. Monsey again, this time complaining of back and leg pain worse than prior to his first surgery. Dr. Monsey determined that the fusion was mending appropriately but that Claimant exhibited ongoing pain, psychosocial issues, narcotic pain-killer dependence and functional disability. He noted that Claimant had been out of work for three years and had a 10% chance of ever returning. He explained to Claimant that it was unlikely that he would ever be pain free and discussed further medical options.
12. On May 26, 2005 Dr. Borrazzo, a general surgeon, confirmed the presence of an eventration1 of Claimant’s abdominal wall at site of his anterior surgical incision, causing a protrusion of intra-abdominal contents. Dr. Borrazzo determined that nerve damage from Claimant’s second surgery caused this condition.
13. Dr. Borrazzo performed surgery to repair this condition on June 1, 2005. The surgery, similar to a hernia repair, was followed by ten months of continual draining from four drainage tracts. On December 13, 2006 Dr. Borrazzo performed a further abdominal surgery to debride the wound and promote healing. He followed this with a similar procedure in 2007, as Claimant’s abdominal wound continued to require further surgical attention.
1 An eventration is an abnormal displacement of part or all of an otherwise intact diaphragm into the chest cavity.
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End Medical Result and Permanency Ratings
14. At Defendant’s request, in June 2005 Claimant underwent an independent medical evaluation with Dr. Upton, a neurosurgeon. Dr. Upton reviewed Claimant’s medical records, conducted a physical examination and made the following observations:
• Dr. Upton confirmed that after two back surgeries Claimant was reporting low back pain that was far more severe than what he had reported prior to his first surgery. Virtually any movement, including walking, exercise or physical therapy, exacerbated the pain. Claimant reported that he was able to help out a little around the house, but felt better when lying down. He reported that at times his back pain would shoot into his abdomen and cause pain spasms.
• Dr. Upton noted that due to Claimant’s severe pain and significant use of narcotic medications, he had been referred to the Pain Center at Dartmouth Hitchcock Medical Center to consider the implantation of a morphine pump. The Center was reluctant to perform the procedure and doubted that use of the device would significantly improve Claimant’s pain.
• Dr. Upton reported that Claimant exhibited markedly limited range of motion in his lumbar spine. Attempts to increase Claimant’s range of lumbar flexion produced pain.
• Dr. Upton reported that Claimant was taking a variety of medications, including large dosages of both methadone and dilaudid for pain relief, an anti-inflammatory and a muscle relaxant. Claimant also was taking Cymbalta for anxiety and depression.
15. Noting that Claimant’s pain had not improved despite two fusion surgeries and the use of “enormous” amounts of narcotic medications, and also that it limited him even from participating in physical therapy, Dr. Upton concluded that Claimant had reached an end medical result.
16. At Defendant’s request Dr. Upton saw Claimant again on March 12, 2008. Dr. Upton reconfirmed that Claimant had reached an end medical result. He observed that despite the fact that Claimant’s second surgery had produced an excellent fusion, his back pain still was not relieved. With reference to the AMA Guides to the Evaluation of Permanent Impairment (5th ed.), Dr. Upton assessed Claimant with a 23% whole person impairment referable to his lumbar spine.
17. At his own referral, in April 2010 Claimant underwent a second permanency evaluation, this time with Dr. Gennaro, an orthopedic surgeon. Dr. Gennaro concurred with Dr. Upton’s assessment of a 23% permanent impairment referable to Claimant’s lumbar spine injury. In addition, however, Dr. Gennaro assessed a 10% whole person impairment referable to Claimant’s abdominal condition, which was a consequence of the complications he had suffered following his second fusion surgery. According to Dr. Gennaro, therefore, the combined whole person impairment causally related to Claimant’s work injury was 31%.
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18. With Dr. Upton’s end medical result opinion as support, Defendant terminated Claimant’s temporary disability benefits effective May 18, 2008 and began advancing permanency benefits instead.
Vocational Rehabilitation Efforts
19. Claimant was referred for a vocational rehabilitation entitlement assessment in July 2008. Ken Yeates, a licensed vocational rehabilitation counselor, was assigned to determine whether he might benefit from vocational rehabilitation services.
20. Claimant has a tenth grade education. He was employed as an industrial electrician at the time of his injury, and in that capacity he was capable of evaluating and fixing complicated electrical problems. He is currently unlicensed for failing to maintain the ongoing educational units required.
21. Claimant possesses entry level computer skills. However, due to his pain levels he has difficulty sitting at a computer without leaning on his right arm and elbow. While leaning in this position he is unable to operate a computer with any efficiency. Claimant’s level of functioning also makes it difficult for him to remain active for more than fifteen minutes. His medications impact his ability to concentrate for significant periods of time.
22. After evaluating Claimant’s current function and transferable skills, Mr. Yeates determined that he is not employable in even a part-time position. In support of this conclusion, Mr. Yeates cited numerous factors. Claimant lacks a high school or technical degree and has neither customer service nor office related experience. He has only entry level computer skills. He cannot stand or sit for more than twenty minutes at a time, and takes high dosages of narcotic pain medications. Taken in combination, these factors render Claimant unable to participate in productive training or competitive employment at this time. According to Mr. Yeates, Claimant is incapable of sustaining even home-based employment. I find this conclusion to be credible in all respects.
23. On the basis of Mr. Yeates’ determination that Claimant was unemployable, his vocational rehabilitation file was closed in March 2009.
Claimant’s Work Capacity
24. But for a short period subsequent to his work injury, Claimant has not worked since January 2002.
25. In January 2010 Claimant underwent a functional capacity examination (FCE). The examination lasted five hours, three of which Claimant used to take breaks, lie down and take his medications. After taking his medications, Claimant exhibited difficulty focusing and maintaining his balance. In the end Claimant was crying and could proceed no further. The testing was terminated.
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26. Based on Claimant’s testing, the evaluator concluded that he does not fit into a work capacity category by current standards and does not have sufficient work capacity to engage in gainful employment. Among the evaluator’s specific observations:
• Claimant does have some sedentary abilities, but lacks the ability to sit, handle or endure sedentary work. He could not sit upright for more than one minute and leaned heavily onto his right arm to unweight his back. Claimant’s significant use of narcotics and their consequent effect on decision-making and memory further limited his ability to function safely.
• Claimant fatigued easily. His use of narcotic medications exacerbated his fatigue and reduced his ability to sustain work to no more than a few hours a day, and not every day. This is incompatible with full time work.
• Claimant lacked the core strength or overall endurance to perform material handling for full time work. He had to lie down after the lifting test.
• Claimant’s abdominal scar tissue, combined with his postural adjustments, caused him to twist his trunk. He stood with his trunk shifted to the right but rotated to the left. This made standing difficult. It also impacted Claimant’s balance, which diminished his ability to perform activities while standing.
• Claimant’s preferred positions were sitting, leaning on his right arm or lying down. He could stoop only with his side bent forward and could support his own weight only by using his hands on a support object.
27. In both his 2005 and 2008 examination reports, Dr. Upton also concluded that Claimant had no foreseeable work capacity. He reaffirmed this opinion in his 2009 deposition. Dr. Upton acknowledged that the extent of the pain and associated disability Claimant reported seemed “pretty excessive.” He remarked that the fact that Claimant continued to complain of a wide distribution of pain despite both an apparently solid fusion and “enormous” dosages of narcotic pain medications “didn’t seem to add up very well.” Nevertheless, Dr. Upton testified that he did not necessarily distrust Claimant’s reports of pain. By its very nature, a medical assessment of pain relies principally on the accuracy of what the patient reports, and in that respect it is unavoidably subjective. With that in mind, Dr. Upton maintained his belief that Claimant was permanently and totally disabled.
28. Dr. Gennaro likewise determined that Claimant was permanently incapable of gainful employment.
29. Dr. Lichtenstein, Claimant’s family practitioner, also believed Claimant to be permanently and totally disabled. He reported that Claimant’s life is consumed by pain, that he has only limited ability to exercise and no energy for rehabilitation. Dr. Lichtenstein described Claimant as exhibiting chronic but stable depression and a defeated attitude.
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Claimant’s Current Condition
30. Both Claimant and his wife testified at the formal hearing in this matter as to Claimant’s current symptoms and functional limitations. Their testimony was consistent and credible throughout.
31. Claimant is no longer the active outdoorsman or the household handyman that he once was. Now he either seeks his children’s assistance or proceeds slowly, if at all. Where he once exhibited strength within the home, he is now emotional and prone to crying.
32. Claimant now sleeps fitfully and for long periods. He often awakens feeling like he needs a nap. His memory is poor, his personal hygiene has diminished and he avoids social settings. While he continues to four-wheel, his son often drives and does so carefully and slowly. Claimant’s degree of back pain will determine whether, and for what period of time, he can perform this activity.
33. Claimant used his swimming pool rarely this summer. He only floats and with the aid of a buoying device.
34. Claimant can stand for no more than ten minutes and can sit for hours if positioned in his recliner. He has difficulty walking, often uses a cane and struggles on stairs. When traveling in a car he needs to stop after twenty to forty minutes. He now does little of the driving. He can mow his lawn but does so slowly.
35. Claimant continues to take numerous medications though he is unsure what they are or their dosage. Dr. Lichtenstein, who manages his medications, has reduced his methadone dosage, but increased the dosage of other pain medications due to an increase in shooting pains. Thus, in addition to most of the medications listed in Finding of Fact No. 14 above, Claimant also takes gabapentin for seizures and pain. He also uses medical marijuana and ketamine cream for pain.
36. Claimant continues to draw fluid from his abdominal wound.
37. Claimant described his average day. Shortly after arising he takes his medications and sits in his recliner. The medications “kick in” in the early afternoon. He spends approximately a half an hour daily tending to his outdoor and indoor gardens. He lets his dog out and in. Claimant spends most of his day sitting in his recliner. He performs no heavy work. He is able to manage alone at home when his wife is out.
38. Claimant tries to service his own vehicles, as he did prior to his injury. Occasionally he will use a creeper to get underneath his vehicles, but for the most part he supervises the work of others. Claimant estimates that he works on vehicles for a couple of hours a month.
39. Claimant described his day-to-day pain as “horrific.” It continues to be in his lower spine/pelvic region. He is never pain free. He experiences tight, cramping pain that only his medications can relieve.
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40. During his testimony Claimant leaned noticeably on his right elbow, frequently grimaced in apparent pain and displayed confusion or a lack of memory in response to some questions.
41. Claimant admitted that he had testified before a legislative committee investigating workers’ compensation cases. His testimony did not involve his current claim.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
3. The dispute here centers on whether Claimant’s January 2002 work injury has rendered him permanently and totally disabled. Claimant points to all of the medical evidence, which presents largely uniform support for his claim. Claimant finds additional support for his claim in the 2009 vocational rehabilitation workup and the 2010 functional capacity examination, both of which determined that he was unable to sustain gainful employment.
4. Defendant counters with evidence that Claimant is able to perform a variety of household, recreational and maintenance functions that it contends are inconsistent with a claim of permanent total disability. Defendant also asserts that Claimant’s claim relies almost exclusively on his subjective reports of pain, which it argues are not credible.
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5. Under Vermont’s workers’ compensation statute, a claimant is entitled to permanent total disability benefits if he or she suffers one of the injuries enumerated in §644(a), such as total blindness or quadriplegia. In addition, §644(b) provides:
The enumeration in subsection (a) of this section is not exclusive, and, in order to determine disability under this section, the commissioner shall consider other specific characteristics of the claimant, including the claimant’s age, experience, training, education and mental capacity.
6. The workers’ compensation rules provide further guidance. Rule 11.3100 states:
Permanent Total Disability – Odd Lot Doctrine
A claimant shall be permanently and totally disabled if their work injury causes a physical or mental impairment, or both, the result of which renders them unable to perform regular, gainful work. In evaluating whether or not a claimant is permanently and totally disabled, the claimant’s age, experience, training, education, occupation and mental capacity shall be considered in addition to his or her physical or mental limitations and/or pain. In all claims for permanent total disability under the Odd Lot Doctrine, a Functional Capacities Evaluation (FCE) should be performed to evaluate the claimant’s physical capabilities and a vocational assessment should be conducted and should conclude that the claimant is not reasonably expected to be able to return to regular, gainful employment.
7. A finding of odd-lot permanent total disability is not to be made lightly. Gaudette v. Norton Brothers, Inc., Opinion No. 49-08WC (December 3, 2008). For that reason, and as Rule 11.3100 makes clear, typically there must be evidence to establish first, what the injured worker’s functional capabilities are, and second, that no viable vocational options exist within those capabilities. Id.; Prescott v. Suburban Propane, Opinion No. 42-09WC (November 2, 2009).
8. Here, I conclude that Claimant is permanently and totally disabled as a consequence of his 2002 work injury. Each component of the record in this case supports that conclusion. Defendant’s arguments to the contrary are unconvincing.
9. The functional capacity examination established that Claimant has a low tolerance for standing and sitting, the latter of which is incompatible with even a sedentary work capacity. His heavy reliance on narcotic pain medications and his pain-focused behaviors further preclude any type of work, sedentary or otherwise. Add to that the contorted manner in which Claimant now carries himself and the positional adjustments he requires to reduce his pain and the conclusion that he lacks a work capacity of any sort is as compelling as it is obvious.
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10. The vocational rehabilitation assessment, which was more focused on Claimant’s education, work experience and related aptitudes in the context of his current occupational options, leads to the same conclusion. Rather than promoting alternatives, Claimant’s educational and work experience are limiting factors. What options exist, even at the entry level, require a level of physical means and focus that Claimant’s condition precludes. Thus, the vocational rehabilitation assessment amplifies Claimant’s unsuitability for regular, gainful employment.
11. Both Drs. Gennaro and Lichtenstein confirmed that Claimant is permanently incapable of re-entering the work force. While Dr. Upton questioned the correlation between Claimant’s subjective reports of pain and limited function and his physical condition, nonetheless he consistently maintained that Claimant has no current work capacity and none for the foreseeable future.
12. Defendant urges that Claimant’s ability to perform a variety of household tasks and recreational activities precludes a finding that he is permanently and totally disabled. I conclude that Claimant’s activities are not inconsistent with a finding of permanent total disability. As reflected both in the functional capacity examination and in Mr. Yeate’s vocational rehabilitation assessment, they do not translate into a viable, sustainable work capacity at any level.
13. I conclude that Claimant has sustained his burden of proving that he is permanently and totally disabled as a consequence of his January 2002 work injury.
14. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $4,370.84 and attorney fees totaling $18,313.50. An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded.
15. Claimant’s claim for attorney fees must be reduced. The amendment to Workers’ Compensation Rule 10.0000, which raised the hourly rate at which attorney fees can be assessed to $145.00, became effective on June 15, 2010. Of the total fees charged, 90 hours were incurred prior to that date, and therefore must be charged at the rate previously in effect, or $90.00 per hour. The remaining 36.3 hours were incurred after June 15, 2010 and properly can be charged at the rate of $145.00 per hour. With that adjustment, the total amount allowable is $13,363.50. I find it appropriate to award Claimant attorney fees in that amount.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Permanent total disability benefits commencing on May 18, 2008 in accordance with 21 V.S.A. §645 (with credit for any permanent partial disability benefits paid to date); and
2. Costs totaling $4,370.84 and attorney fees totaling $13,363.50.
DATED at Montpelier, Vermont this 10th day of November 2010.
_______________________
Valerie Rickert
Acting Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

S. C. v. Barre Supervisory Union School (January 2, 2007)

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S. C. v. Barre Supervisory Union School (January 2, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
S. C. Opinion No. 53-06WC
By: Margaret A. Mangan
v. Hearing Officer
Barre Supervisory Union School For: Patricia Moulton Powden
Commissioner
State File No. T-11595
Hearing held in Montpelier on October 3 and 4, 2006
Record closed on November 9, 2006
APPEARANCES:
Steven P. Robinson, Esq. and Jennifer Ciarlo Pacholek, Esq., for the Claimant
Andrew C. Boxer, Esq., for the Defendant
ISSUES:
1. Is Claimant permanently and totally disabled as a result of a work related injury?
2. Are Claimant’s current symptoms, medications, and treatment related to and required by her original work related injury?
3. Does Claimant have any permanent partial impairment?
EXHIBITS:
Claimant:
1. Dr. Peyser’s deposition
2. Employment Records
Defendant:
A. Dr. Ciongoli deposition
B. Letters of reference (2)
C. Articles
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FINDINGS OF FACT:
1. Claimant was an employee and Barre Supervisory Union her employer within the Vermont Workers’ Compensation Act at times relevant to this action.
2. Claimant worked as third and fourth grade teacher in the Barre schools for thirty-one years. At the time of her injury on January 8, 2003, she was in good physical health, without any arm, back or head injuries. She was teaching fourth grade at the time.
3. The injury giving rise to this claim occurred on January 8, 2003 when Claimant fell from a chair and hit her head. She had just taken her students to the gym for physical education, and then walked into a room to make a phone call. As she sat down and reached for the phone, the chair collapsed. Claimant hit her head on a shelf. The next thing she remembers is lying on the floor with her head stinging. As she tried to stand up, her legs wobbled.
4. The school principal took Claimant to Occupational Health where she was treated and released. Claimant went home and slept. Her attempt to return to work later in the week was unsuccessful.
5. A January 14, 2003 CT scan was normal.
6. An EEG showed minimal changes consistent with post concussion syndrome.
7. A February 2003 MRI showed mild cerebral atrophy, out of proportion with Claimant’s age and small vessel disease.
8. Claimant began to have severe headaches. She did not return to work for the rest of the semester.
9. Shortly after the head injury, Dr. Kenneth Ciongoli, a neurologist began treating her. From her history he determined that she had a coup (same side) and contracoup (opposite side) injuries to her head. Since she hit the back of the head, the symptoms from that part of her brain resulted in visual changes and abnormal sensations; the contracoup injury to front part of her head gave her problems with thinking and memory. He noted a bump on her head and diagnosed post concussion syndrome. Claimant had difficulty completing sentences and maintaining a line of thought. She had headaches. Small vessel disease was noted on cerebral testing, but Dr. Ciongoli did not find it significant.
10. In June 2003 Claimant saw Dr. Fries who diagnosed post concussion syndrome. He found a causal connection between the work accident and her injuries. Dr. Fries determined that her cognitive deficits were particularly stubborn, though genuine. At that time, she had not reached medical end result.
11. In July 2003, Dr. Ciongoli noted that Claimant was 90% improved from her work injury. He cleared her to work on a trial basis.
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12. In October 2003, Dr. Ciongoli noted that Claimant’s examination was normal, although subjective complaints persisted.
13. At the start of the next academic year in late summer 2003, Claimant attended a few in service days and began teaching part-time in the mornings. Classrooms at the time were separated only by partitions.
14. In the afternoons, Claimant went home to rest. After about one month, she got behind in correcting papers and had trouble focusing during a lesson. She received two negative evaluations, a stark contrast with years of positive evaluations. Her contract was terminated.
15. In the ten years before the injury at issue, Claimant sought medical care for sleeping problems, anxiety, stress, fatigue, exhaustion, inability to focus, poor memory, attention span problems, headaches, word retrieval problems, depression and confusion.
16. Since the injury, she has complained of similar symptoms. She complains that the headaches are daily and debilitating. The difference is that she worked with the symptoms before the injury but is not working now.
Expert Opinions
Dr. Preis
17. Dr. Preis is a psychiatrist who has treated Claimant since 1992 for bipolar disorder, temporal lobe epilepsy and mild attention deficit disorder (ADD).
18. Dr. Preis noted that Claimant had adapted well to the mild ADD, compensating by being organized and taking frequent notes. The conditions Dr.Preis had been treating did not keep Claimant from working. However, Claimant often complained of memory problems at school in the 1993-94 academic year. At that time, Claimant stopped driving because she thought her problems with focus would make her a danger on the road.
19. In 1994 Dr. Preis documented Claimant’s memories of early childhood abuse. Claimant had trouble sleeping and showed signs of depression. Three years later, she was complaining of headaches and visual distortion.
20. Over the years, Dr. Preis worked with Claimant to change and add medications and titrate dosages.
21. Although Dr. Preis agreed that Claimant had the same symptoms before and after the accident, she attributes the current symptoms to the work related head injury because she saw a dramatic change in these cognitive processes. She determined that Claimant is unable to do the multitasking necessary for teaching or for driving a car. Further, she opined that Claimant is unable to work because of debilitating headaches.
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Dr. Ciongoli
22. Dr. Ciongoli treated Claimant and offered opinions on causation. Based on Claimant’s progress and normal objective testing, he was surprised by subjective complaints that she had not recovered from her head injury by the fall of 2003. He had never seen a patient with such a small degree of trauma suffer from the degree of disability she is claiming.
23. Dr. Ciongoli opined that Claimant’s work injury combined with her preexisting condition make it impossible for her to cope and resume the life she had before the injury. He believes she has reached medical end result and is unlikely to improve enough to return to work.
Dr. William Farrell
24. Dr. Farrell, a psychologist, conducted a Psychological IME on Claimant on June 3, 2005, although he did not testify at hearing. Dr. Farrell opined that Claimant has had an unexpectedly protracted post concussion syndrome. In his opinion, she is unable to perform duties of her usual occupation as a full time teacher and is not likely to ever be able to resume full time gainful employment.
25. Dr. Farrell assigned Claimant with a 26 to 32% permanent partial impairment.
Dr. Frederick Fries
26. Dr. Fries noted that some post concussion syndromes take a year or more to resolve. As noted above, he diagnosed a stubborn post concussion syndrome in 2003 when he thought she had not yet reached medical end result. At a second evaluation June 23, 2004, he made the same diagnosis and causal connection. He thought she had improved 60% but was not yet ready to resume teaching duties.
Dr. Janis Peyser
27. Dr. Peyser saw Claimant on a referral from Dr. Ciongoli to perform neuropsychological battery.
28. Dr. Peyser concluded that Claimant had difficulty with some tasks of attention, particularly with arithmetic. She opined that variable attention may hamper her ability to take in new information. However, the testing also revealed that Claimant’s retention was intact, and that she had no other cognitive deficits.
29. Dr. Peyser observed that symptoms are always on the forefront of Claimant’s mind. Such a focus prevents her from resolving the problems. In Dr. Peyser’s opinion, there is a psychological overlay to Claimant’s symptoms that contributes to her problems beyond what the head injury caused.
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30. Dr. Peyser does not expect a long-term impairment in this case. She expects a full recovery. She concluded that Claimant’s concussion did not cause any psychological deficits, but may have spawned a psychological reaction. She has no opinion as to whether the accident caused neuropsychological deficits.
31. Based on neuropsychological testing, Dr. Peyser opined that Claimant is capable of some form of work..
Dr. Nancy Hebben
32. Dr. Hebben conducted a neuropsychological evaluation of Claimant on March 24, 2006.
33. Based on the records, Dr. Hebben opined that Claimant did not suffer a significant traumatic brain injury and, as a result, is not expected to have permanent cognitive changes.
34. In addition, Dr. Hebben noted that Claimant has persistently complained of subjective symptoms, behavior that in general occurs in those with pre-existing psychiatric problems, poor general health, comorbid problems such as depression, chronic pain, and protracted litigation.
35. Dr. Hebben assessed Claimant’s performance during Dr. Peyser’s 2004 testing as representing her minimum level of functioning.
36. Testing Dr. Hebben conducted with Claimant did not reveal attention problems. Acquisition of new information improved compared with prior testing. Declines in other areas according to Dr. Hebben can be attributed to Claimant’s small cell vessel disease, not to a head injury in 2003.
37. Based on her review of records, testing and interview, Dr. Hebben concluded that Claimant’s persistent symptoms are related to some factor or factors unrelated to a head injury. The other factors include sleep apnea, Undifferentiated Somatoform Disorder, and/or possible progression of pre-existing small vessel disease.
38. According to Dr. Hebben, Claimant has no ongoing cognitive or psychiatric injury related to her fall. Any disruption she had was mild and temporary. She could have returned to work. She has no permanent impairment.
Vocational Rehabilitation
39. Laurie Langelier, vocational rehabilitation counselor, worked with Claimant after the injury. She developed an approved plan that included a gradual return to work, starting with a volunteer job. Claimant tried to volunteer at the Barre Town Library and at Washington County Mental Health, but found that her symptoms increased. The attempts were considered failures. Based on Dr. Ciongoli’s opinion that Claimant could not return to work, Ms. Langelier told the Claimant that she had no other options for her. Therefore, the VR file was closed in April 2005.
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40. Fran Plaisted, vocational rehabilitation counselor, provided a forensic vocational opinion in this case on April 28, 2006.
41. Ms. Plaisted identified four areas of function: 1) physical; 2) cognitive; 3) psychological; 4) subjective. Claimant has no physical limitations as a result of her 2003 head injury. She has a light duty work capacity as determined by her work history. Claimant has no cognitive limitations that prevent her from working, based on assessments by Dr. Peyser and Dr. Hebben. Next, Ms. Plaisted concluded that Claimant does not have psychological limitations that would prevent her from working. Although it is clear that Claimant had psychological problems before and after the fall, they are problems well controlled with medications. Finally, Ms Plaisted opined that Claimant has many subjective complaints of pain, yet no one has said that the pain prevents her from working. Despite the complaints of headache, Claimant was able to complete a full day of testing.
42. In Ms. Plaisted’s opinion, Claimant’s return to work attempts were unrealistic. Classrooms were separated by partitions, not traditional walls, increasing the distractions for Claimant and making it more difficult for her to work. When she was taken out of work, she had not been given the option of accommodations that would have allowed a successful return to work.
43. Ms. Plaisted criticized the vocational rehabilitation plan because it was not implemented properly. As such, it was not surprising that Claimant did not follow the plan and withdrew without obtaining a part-time job. Since then she has not tried to find a job or even continue with volunteer work.
44. In Ms. Plaisted’s opinion, a counselor should have tried to find a teaching job Claimant could perform. Schools where class size is smaller and where there are fewer distractions may be a better setting than the Barre schools.
45. The first level of service should have been to return Claimant to a similar job, perhaps with a different employer with modifications. If that were not successful, the next level of service would be to explore work in a different occupation.
46. In short, Ms. Plaisted opined that VR services had been closed prematurely in this case based on Claimant’s subjective belief that she could not work. Based on all the records, however, it is clear that Claimant is capable of gainful employment.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1962). The claimant must establish by sufficient credible evidence the character and extent of the injury and disability as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984).
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2. To qualify for workers’ compensation benefits, the personal injury must arise out of and in the course of employment. See 21 V.S.A. § 618 (a)(1).
3. There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the inference from the facts proved must be the more probable hypothesis. Burton Holden & Martin Lumber Co., 112 Vt. 17 1941. Where the causal connection between an accident and an injury is obscure, and a layperson would have no well-grounded opinion as to causation, expert medical testimony is necessary. J.G. v. Eden Park Nursing Home, Opinion No. 52-05WC (2005) (citing Lapan v. Berno’s Inc., 137 Vt. 393 (1979)).
4. On the issue of causation, Claimant has prevailed. The convincing medical evidence from Doctors Ciongoli, Peyser, Fries Farrell, Preis and Hebben combine to form in the mind of this trier a conclusion that Claimant’s work related fall caused a concussion that has some lingering effects, when combined with her preexisting conditions. See Jackson v. True Temper Corp., 151 Vt. 592, 595-96 (1989) (employer for seizures brought on by drinking alcohol where sawmill injury aggravated or accelerated claimant’s preexisting alcoholism).
5. Next, is the question whether Claimant is capable of gainful employment, or as she alleges, she is permanently and totally disabled, considering her “age, experience, training, education and mental capacity.” 21 V.S.A. § 644(b).
6. Claimant has not met her burden on this issue. Even Dr. Preis conceded that she may be able to return to work. Unfortunately, VR services were suspended prematurely. It may be that the passage of time has allowed Claimant’s stubborn post concussion syndrome to resolve further and aided Claimant in the process. Claimant has a strong academic history, decades of professional work and an engaging personality. VR services must be resumed to help her return to work.
7. Her PTD claim fails on this record.
8. Because the only PPD rating in the record is from Dr. Farrell who was hired by the Defendant, Claimant must be paid the permanency he assessed.
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ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law:
• Claimant is awarded PPD based on Dr. Farrell’s rating
• The claim for permanent total disability is DENIED.
Dated at Montpelier, Vermont this 2nd day of January 2007.
________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

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

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

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

A. C. v. The Golub Corporation (January 23, 2007)

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

A. C. v. The Golub Corporation (January 23, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
A. C. Opinion No. 03-07WC
By: Margaret A. Mangan
v. Hearing Officer
The Golub Corporation For: Patricia Moulton Powden
Commissioner
State File No. R-13259
Hearing held in Montpelier on December 5, 6 and 7, 2006
Record closed on December 29, 2006
APPEARANCES:
Dennis O. Shillen, Esq., for the Claimant
Keith J. Kasper, Esq., and David Berman, Esq., for the Defendant
ISSUES:
Is Claimant permanently and totally disabled as a result of her work-related injury or injuries?
Is a hot tub a compensable medical expense pursuant to the Vermont Workers’ Compensation Act and the Department’s Rules?
EXHIBITS:
Joint I: Medical Records
Claimant’s 1: Chapter 7 from AMA Guides re: Independent Medical Examination Claimant’s 2: DSM IV PTSD
FINDINGS OF FACT:
1. Claimant is a 45 years old intelligent woman who completed 11 ½ years of school. She worked her adult life in the meat business, first in a family business and later at Price Chopper.
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2. On November 8, 2000, Claimant injured her back while working as a meat cutter at Price Chopper, a job she had for eight years. She had emergency surgery on November 16, 2000 and later numerous other surgical and medical interventions for herniated discs and cauda equina syndrome. The compensability of hospitalizations and acupuncture treatment was the subject of a 2004 hearing decision in the Claimant’s favor. Opinion No. 34-04WC.
3. Claimant’s current claim for permanent total disability benefits is based on a combination of physical and psychological problems.
4. Claimant’s current treatment includes acupuncture twice a week and medical massage two or three days a week as well as a host of medications.
Physical Condition
5. Joseph Corbett, M.D. is a licensed medical physician specializing in neurosurgery and practicing in Rutland. He first treated Claimant immediately following her work-related injury in November of 2000. Her initial complaints related to Claimant’s lower back. An MRI revealed a disc herniation at L4-5 with compression of nerve roots on the left side and centrally.
6. One problem that resulted from her injury was cauda equina syndrome, caused by compression of nerves in the lower spine. Symptoms of cauda equina syndrome Claimant has had are numbness in the perineum; bowel and bladder problems, and foot drop.
7. Despite Claimant’s insistence that cauda equina persists, I am not convinced, based on recent medical records and opinions that she has no more than partial perineal numbness as a residual effect.
8. Claimant alleges that her psychological condition is disabling, yet she exhibited phenomenal attention to detail in her testimony and in the responsibilities inherent in her everyday life.
9. Dr. Bucksbaum is board certified in physical medicine and rehabilitation, and certified as an independent medical examiner. He became acquainted with Claimant in March of 2002 for an evaluation of her back pain. Dr. Bucksbaum came to the treat Claimant at the suggestion of Ms. Curran.
10. Mark Bucksbaum, M.D., a treating physician, expects and recommends that Claimant will have the most recently recommended back surgery, a procedure that Claimant understandably has refused to have, given the numerous procedures she has had.
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11. Dr. Bucksbaum opined that Claimant was at medical end result as to her physical condition, and that he felt she reached that point in 2004. Dr. Bucksbaum also opined that Claimant will have a future surgery. He has encouraged Claimant to have a fusion surgery in Boston with an “elite team” of doctors, and that such a surgery could stabilize the region in her back. If Claimant does not elect to have the fusion surgery, Dr. Bucksbaum opines that Claimant would be susceptible to an incident which would lead to an emergency situation, and that in that type of situation the surgical team might not be as experienced. Dr. Banco, who is part of the team that Dr. Bucksbaum encourages Claimant to go to for the fusion surgery, has opined that the surgery would improve Claimant’s functioning and allow her to return to work.
12. Based on Claimant’s current condition, Dr. Bucksbaum determined that she has a 53% whole person impairment for her physical problems, without considering the psychological sequelae.
13. Dr. Bucksbaum found that Claimant’s foot drop has improved since 2004, which is when he stated that Claimant reached medical end result for her physical condition.
14. Dr. Bucksbaum determined that Claimant is unable to return to reliable, uninterrupted, vocationally relevant work. He based that opinion on Claimant’s chronic pain, bowel and bladder problems, need for narcotics, carpal tunnel syndrome, loss of concentration, safety concerns, and diminished persistence and patience.
15. Dr. William Boucher’s primary area of specialty is occupational medicine, and he is board certified. He evaluated Claimant on two occasions, in 2004 and 2006.
16. In 2006, Dr. Boucher considered Claimant to have a part-time sedentary work capacity. He stated that this meant she was capable of working four hours per day during a five-day week.
17. Dr. Boucher also stated that Claimant’s depression, which he considers to be her primary psychological problem, was only partially treated and that Claimant was not at medical end result regarding her psychological condition. Dr. Grubman concurred with Dr. Boucher for more aggressive treatment for Claimant’s depression. With such treatment, Dr. Boucher opined that Claimant’s functional abilities could also improve, as the depression plays a large role on those abilities.
18. Dr. Boucher questioned the results of the functional capacity evaluations because of Claimant’s depression and her tendency to self-limit. She likely never gave full effort.
19. Dr. Boucher opined that Claimant’s cauda equina had resolved and that he did not feel Claimant had any clinical findings consistent with ongoing cauda equina at this point. As to Claimant’s bladder incontinence, Dr. Boucher stated that she may have some stress incontinence, and that Claimant’s bowel problem was more likely constipation from her numerous medications rather than bowel incontinence from cauda equina syndrome.
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Claimant’s Psychological Condition
20. Sandy Lasky, MSW, diplomat of the American Psychotherapy Association, is a licensed clinical social worker and certified in clinical social work. She has provided supportive counseling to Claimant since May of 2001 for anxiety and depression. Claimant has seen Ms Lasky weekly for five years.
21. Ms. Lansky determined that Claimant has a low tolerance for any kind for physical or mental activity.
22. Ms. Lasky diagnosed Claimant with post-traumatic stress disorder based on Claimant’s symptoms, including shortness of breath, chest pain, sweating, dizziness, difficulty breathing, because these indicated a general sense of panic.
23. Ms. Lasky does not conduct her own psychological testing, but refers such testing out to other professionals. In this case, she relied on testing done by Dr. Mann and Dr. Grubman. Ms. Lasky’s diagnosis was rejected by Dr. Grubman, an expert with a Masters Degree in Pharmacology from the University of Michigan and a PhD from the University of Vermont. Dr. Grubman did his own testing on Claimant, and ruled out post-traumatic stress disorder for several reasons.
24. To have PTSD, Claimant would have had to witness, experience, or be confronted with actual death or injury to herself or others, and that Claimant must have experienced intense fear or horror during the event. This claimant did not have such an experience.
25. Claimant has not missed many appointments over her five years of treatment with Ms. Lasky. Claimant follows through on suggestions, understands and participates in her treatment. Despite these noted abilities of Claimant, Ms. Lasky’s opinion is that Claimant does not have the ability to return to work solely from a psychological perspective, based primarily on her inability to concentrate.
26. Dr. James Grubman specializes in clinical and behavioral medicine relating to treatment of people with a variety of medical and health disorders, including chronic pain management and disability. He has worked in the field of neuropsychology, involving work with people with brain injuries, dementia, and other developmental and acquired brain disorders. He also focuses on pain management.
27. Dr. Grubman evaluated Claimant on two occasions and issued three reports in this case. Dr. Grubman administered the Minnesota Multiphasic Personality Inventory II (MMPI II) test as well as the Millon Behavioral Medicine Diagnostic (MBMD) test. Tests look at Claimant’s personality and emotional functioning. When Dr. Grubman began showing Claimant a variety of the tests he wanted her to do, she balked at the process because she disagreed with the relevance of the testing.
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28. At the time Dr. Grubman evaluated her, Claimant was physically able to sit and do the testing that took approximately three hours. She was able to understand his questions and respond appropriately during the interview portion. Claimant worked consistently on the testing, and declined several offers for breaks and water. Claimant reported to Dr. Grubman that her pain was manageable and that nothing about the testing was problematic or dangerous to her.
29. Claimant showed tremendous somatization on the clinical scales in the MMPI testing, which still indicated that the profile was valid. As far as diagnostic criteria, Dr. Grubman focused on Claimant’s psychological diagnoses. She qualified for diagnoses of major depression, major depressive disorder, pain disorder with psychological and medical factors, and for a diagnosis of dependence on narcotics.
30. Dr. Grubman ruled out the diagnosis of post-traumatic stress disorder, a conclusion I accept.
31. Dr. Grubman found that Claimant had personality disorder features in a general mixed or other category, and primarily histrionic features as well. Based on his testing, Dr. Grubman opined that Claimant has a variety of difficulties in relation to her personality and how she approaches problems that she has. These conditions predated her work injury. He based this opinion on the information from her behavior and assessment in the chronic pain program she was in with Dr. Mann in 2001.
32. Dr. Grubman’s diagnosis of histrionic features relates to internal mental processes, not overt behaviors. It means that one is not accepting responsibility, but is looking to external factors to fix things. Such a diagnosis does not necessarily lead to melodramatic or hysterical behavior in a person, qualities that many lay persons may equate with the term. Further, Dr. Grubman noted that Claimant exhibited symptom magnification on testing.
33. Based on Claimant’s progress to date, Dr. Grubman concluded that Claimant needed a therapy with a different approach than what Claimant has been receiving. He recommended tapering Ms. Lasky’s treatment and advised that Claimant should treat with a clinician with expertise in the features that to date have been recalcitrant to treatment.
34. Claimant is not at medical end result with regard to her psychological condition. According to credible expert testimony, Claimant’s psychological condition has not reached a substantial plateau, and further improvement could be expected with more aggressive treatment.
35. Dr. Grubman concluded that he could not establish a connection between Claimant’ work injury and her psychological issues. This was based on her personality disorder features, her prior history of depression, which can have a set of recurrences, and a significant overlay of Claimant’s narcotic dependence. Dr. Grubman opined that none of Claimant’s disorders were of sufficient severity that they would preclude her from having at least part-time employment.
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36. Dr. Grubman suggested a dual diagnosis chronic pain program, where experts could work with Claimant to look at her general medical treatment regimen, including a consideration of her medications, and could potentially work with her using behavioral techniques to reduce the sedation medications. Dr. Grubman testified that Ms. Lasky was not effectively working with Claimant in this manner.
37. The convincing evidence is that Claimant can concentrate her protestations to the contrary notwithstanding.
38. Ms. Lasky defined success of her treatment in this case as Claimant’s not using the hospital emergency room as often as she would have without the counseling. More definable improvement in Claimant’s condition would have to be established before I can find that she reached medical end result for her psychological condition.
39. Dr. Bucksbaum does not believe that Claimant had reached medical end result for her psychological condition as of March of 2004.
40. Dr. Grubman opined that Claimant’s condition could improve with better psychological treatment, and questioned Ms. Lasky’s treatment. Thus, based on the testimony at the formal hearing, Claimant is not at medical end result for her psychological condition.
41. Dr. Boucher disagreed with Ms. Lasky’s diagnosis of post-traumatic stress disorder. He stated that Claimant has never mentioned nightmares involving her injury, or any flashbacks. Dr. Bucksbaum, Claimant’s own treating professional, also did not diagnose Claimant with post-traumatic stress disorder.
42. A finding that she is permanently and totally disabled is inappropriate where there are still significant opportunities to improve Claimant’s condition.
Vocational Rehabilitation
43. Greg LeRoy is a rehabilitation counselor, and provided a vocational rehabilitation assessment for Claimant. Mr. LeRoy acknowledged that where appropriate based on a person’s condition, a self-employment plan is a viable option. However, Mr. LeRoy did not consider or pursue this avenue for Claimant. In fact, he determined that no further VR services are warranted in this case because of Claimant’s disability.
44. Contrarily, Ms. Fran Plaisted, a certified vocational rehabilitation counselor, supports further vocational testing. Based on evidence of Claimant’s cognitive abilities, she determined that Ms. Lasky’s attempt to prevent such testing based on Claimant’s inability to concentrate is illogical.
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45. Mr. LeRoy relied on other medical experts as to Claimant’s physical and psychological capabilities. He focused, as a vocational rehabilitation counselor, on a Claimant’s temperament. Thus, he stated that if there is evidence someone does not have the temperament to do a job, he must determine whether a person can still do the job.
46. Ms. Plaisted encourages further vocational programs for Claimant in an attempt to get her a GED and computer training courses.
47. Mr. LeRoy met with Claimant once. Claimant was able to complete the requisite paperwork and to stay focused during the interview.
48. Mr. LeRoy completed a transferable skills analysis, breaking down Claimant’s work history into traits involved in doing her work. He stated that he attempted to transfer the skills Claimant obtained as a meat cutter to other jobs. He also stated that Claimant would need additional training to return to other types of work beyond unskilled jobs.
49. Dr. Bucksbaum had noted carpal tunnel syndrome in his records. However, the first notation of carpal tunnel syndrome as a limiting factor regarding Claimant’s vocational rehabilitation efforts was made after Ms. Plaisted encouraged Claimant to pursue computer classes. Even assuming the validity of Dr. Bucksbaum’s reliance on carpal tunnel syndrome as a limiting factor, he conceded that there are options to work around the condition and still work on a computer, such as a voice recognition program.
50. Mr. LeRoy considered the possibility of Claimant looking into training for computer skills, but rejected that direction after reviewing records that suggested Claimant has carpal tunnel syndrome (CTS). Mr. LeRoy stated that based on the reports of Dr. Bucksbaum and Ms. Lasky, he is not in favor of Claimant pursuing such computer training.
51. Indeed the medical records are devoid of any mention of CTS until after the suggestion of computer training by Ms. Plaisted.
52. Tammy Parker works as a vocational rehabilitation counselor, and does entitlement assessments to determine if people are eligible for services and to help them get back to work.
53. Ms. Parker testified that in 2003 she had been working on setting up Claimant in a business involving internet sales of antiques, an area of interest for Claimant. Such a position would have required Claimant to use a computer. Ms. Parker did not recall any complaints by Claimant as to her physical abilities to use a computer at the time, nor could she recall any complaints as to her cognitive abilities. At the time she was considering computer work for Claimant. Ms Parker did not have an FCE, and did not feel that it was necessary.
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54. Ms. Parker closed vocational rehabilitation on July 26, 2004, and that she entered the code “07 – Disability Too Severe.” See Vocational Rehabilitation Discontinuance Report, dated 7/26/04. Ms. Parker conceded that at the time of the closure, she was not concluding that Claimant was permanently and totally disabled, and that she did not want to close the door permanently on Claimant. She based the closure on medical reports available at that time.
55. When Ms. Parker met with Claimant, they generally met out in public. Claimant arrived alone and was able to get to the meetings without a problem.
56. Dr. Corbett defers to other experts with regard to a claimant’s ability to return to work. He is not a vocational expert. However, in 2002, he opined that Claimant had a work capacity for a sedentary position in response to questioning proposed by Ms. Parker.
57. Karen Curran is a telephonic case manager who was assigned to facilitate Claimant’s rehabilitation process through contact with Claimant, her vocational rehabilitation counselors, and her doctors.
58. Ms. Curran opined that Claimant could not maintain gainful employment based on her mental and physical restrictions. However, she acknowledged that in her deposition she had testified that she could not offer an opinion as to whether Claimant was permanently and totally disabled. Ms. Curran acknowledged that she had not seen Claimant between May of 2006, the time of her deposition, and the formal hearing, and that nothing had occurred to change her opinion as to the ultimate issue of whether Claimant was permanently and totally disabled.
59. Ms. Curran has not seen the Claimant in years; she has merely served as the telephonic case manager. Through this work, Ms. Curran believes that Claimant has understood treatment recommendations and has coordinated her care by herself. She also stated that Claimant drives to her own medical appointments most of the time, and that includes several appointments every week.
60. A January 23, 2004 functional capacity evaluation (FCE) by Ginni Reeves concluded that Claimant might be able to work four hours a day at a sedentary level. In 2006, she concluded that Claimant did not have a part time work capacity because she could not sit long enough to keep a sedentary job.
61. Ms. Plaisted met with Claimant in October of 2005. Her desire to continue vocational rehabilitation would focus on home-based self-employment as one option.
62. After Claimant had decided not to undergo the fusion surgery with Dr. Banco, Ms. Plaisted developed an Individual Written Rehabilitation Plan (IWRP) because Claimant had not obtained a GED or high school diploma, and that this was essential for Claimant to obtain if she were to return to work.
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63. Once she had received an FCE indicating that Claimant had a less than sedentary work capacity, she drafted another IWRP looking into options for Claimant as a buyer, or other types of home-based employment.
64. Ms. Plaisted has not closed out vocational rehabilitation for Claimant. She would like to follow up with Dr. Bucksbaum to look into accommodations, particularly with regard to typing. While Dr. Bucksbaum was quick to simply dismiss the keyboarding options such as voice activation, Ms. Plaisted would like to fully explore the options.
65. Ms. Plaisted considered the alleged bowel and bladder problems in stating that home-based employment would provide Claimant with the flexibility that she needs. Ms. Plaisted testified that she disagrees with Mr. LeRoy’s criticisms of the potential for home-based employment, and that there are options available to be researched and considered.
66. This demonstrates Ms. Plaisted’s work as a certified vocational rehabilitation counselor to thoroughly consider all of the options for returning a person to work, including a proper consideration of the Claimant’s abilities.
67. Further vocational rehabilitation efforts would benefit Claimant if they do not result in a job. Ms. Plaisted explained her role to work with disabled individuals to help them maximize their potential and to provide them with interests and activities to lead as fulfilling a life as possible.
68. Ms. Plaisted could not give an opinion as to whether Claimant can secure gainful employment at this time. Her reasoning was that she has not worked enough with Claimant nor pursued several options. Ms. Plaisted is not simply ready to dismiss several options that exist for Claimant in order to conclude on an incomplete record that Claimant can not obtain this type of employment.
69. Dr. Corbett defers to other experts with regard to a claimant’s ability to return to work. He is not a vocational expert. However, in 2002, he opined that Claimant had a work capacity for a sedentary position in response to questioning proposed by Ms. Parker.
Hot tub
70. With regard to the hot tub issue, Dr. Bucksbaum stated that an indoor tub, or at least a tub within an enclosure, would be preferable for Claimant. The burden of proof is on Claimant to establish the reasonableness of the installation of the hot tub. 21 V.S.A. § 640(a).
71. Dr. Boucher opined that a hot tub could have a temporary psychological benefit, but that it would not affect Claimant’s physical condition one way or the other. He opined that it would not improve Claimant’s baseline pain or functioning, and would be of no value as a medical treatment. Rather, the most effective treatment, according to Dr. Boucher, would be more aggressive treatment of Claimant’s depression.
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72. Claimant determined that a pool or hot tub in a public place is not an option for her because of her bowel and bladder issues.
73. The unlikelihood that a hot tub would provide more that temporary relief together with the psychological testing in this case and Department precedent, lead me to conclude that Claimant has not met her burden of proving the reasonableness of the treatment.
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); Goodwin v. Fairbanks, Morse & Co., 123 Vt. 161, 166 (1962).
2. There must be created in the mind of the trier of fact something more than 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).
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).
4. Expert medical testimony is required to make the causal connection between employment, an injury and the resulting benefits sought. Martin v. Woodridge, Op. No. 11-97WC (1997); Cushing v. Just Good Builders, Op. No. 68-96WC (1996). A party who bears the burden of proof cannot meet that burden without providing such evidence, and possibility, suspicion or surmise are insufficient to carry that burden. Id.
Permanent Total Disability
5. Claimant bears the burden of proof in showing that she is permanently and totally disabled from any and all regular gainful employment. See Ratta-Roberts v. Benchmark Assisted Living, Op. No. 46-05WC (2005).
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6. Claimant seeks permanent total disability benefits pursuant to 21 V.S.A. § 644(b) which was amended in 1999 and became effective July 1, 2000. Claimant’s work-related injury occurred on November 8, 2000. The amendment codifies the Odd-Lot Doctrine, which is stated in Workers’ Compensation Rule 11.3100:
• A claimant shall be permanently and totally disabled if their work injury causes a physical or mental impairment, or both, the result of which renders them unable to perform regular, gainful work. In evaluating whether or not a claimant is permanently and totally disabled, the claimant’s age, experience, training, education, occupation and mental capacity shall be considered in addition to his or her physical or mental limitations and/or pain. In all claims for permanent total disability under the Odd Lot Doctrine, a Functional Capacity Evaluation (FCE) should be performed to evaluate claimant’s physical capabilities and a vocational assessment should be conducted and should conclude that the claimant is not reasonably expected to be able to return to regular, gainful employment.
• A claimant shall not be permanently totally disabled if he or she is able to successfully perform regular, gainful work. Regular, gainful work shall refer to regular employment in any well-known branch of the labor market. Regular, gainful work shall not apply to work that is so limited in quality, dependability or quantity that a reasonably stable market for such work does not exist.
7. The standard for succeeding in a permanent total disability claim is further articulated in 21 V.S.A. § 645(a), which states that one must have “no reasonable prospect of finding regular employment.” Regular employment means work that is not casual and sporadic, whereby the hiring is not charitable and the person earns wages. Rider v. Orange East Supervisory Union, et. al. Opinion No. 14-03WC (2003).
8. Much of the testimony in support of this claim was based on the belief that Claimant could not longer cut meat, work she was doing at the time of her work related injury. However, her inability to return to her prior type of employment is irrelevant to the issue of whether she is permanently and totally disabled. Instead, the relevant inquiry is whether Claimant’s physical and mental impairments foreclose her from being gainfully employed in any type of occupation.
9. It is Claimant’s burden to prove that she is incapable of any and all regular gainful employment. The test is quite simple; the injured employee must have no reasonable prospect of obtaining regular, gainful employment. See Fleury v. Kessel/Duff Constr. Co., 148 Vt. 415 (1987).
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10. Dr. Boucher and Dr. Grubman opined that Claimant does have a work capacity. Dr. Boucher stated that he felt Claimant was capable of working four hours per day during a five-day week. Even assuming Claimant could not return to work on a full-time basis, her lack of full-time work capacity is not determinative of permanent total disability. See Arnold v. Central Vermont Hospital, Op. No. 20-06WC (2006) (“Section 644 does not require that one have a full time work capacity to be capable of regular gainful employment.”).
11. There are contradictory expert opinions as to whether Claimant has a work capacity, particularly concerning her psychological issues. Ms. Lasky opined that Claimant does not have a work capacity for regular gainful employment. However, Ms. Lasky’s opinion loses persuasiveness when considering that her diagnosis of post-traumatic stress disorder is inconsistent with the medical record and has not been corroborated by any other expert opinion. Further, Dr. Grubman stated explicitly that the factors considered by Ms. Lasky in diagnosing post-traumatic stress disorder, including shortness of breath and chest pain, are insufficient for such a diagnosis. Dr. Grubman is highly qualified to render opinions as to Claimant’s psychological conditions, and demonstrated a clear and thorough analysis based on his examination and review of the medical records. See Geiger v. Hawk Mountain Inn, Op. No. 37-03WC (2003) (discussing factors considered by Department in evaluating and choosing between conflicting medical opinions).
12. Claimant also cannot be considered to be at PTD, because she is not yet at medical end result. In order for a condition to be considered permanent, one must be at medical end result. In order to qualify for permanent total disability, a Claimant’s condition must be permanent. In order for the medical condition to be permanent, the Claimant must be at medical end result. Therefore, in order to satisfy the determination of permanent total disability, one must be at medical end result. Therefore, Claimant cannot satisfy the criteria of permanent total disability in this matter as she has not achieved medical end result.
Medical End Result
13. Medical end result means the point at which one has reached a “substantial plateau in the medical recovery process, such that significant further improvement is not expected, regardless of treatment.” WC Rule 2.1200.
14. Claimant has alleged that she is permanently and totally disabled based on her psychological and physical injuries and conditions. The evidence demonstrates that Claimant is not at medical end result for either her psychological condition or her physical condition, thereby barring this PTD claim.
15. Dr. Boucher and Dr. Grubman both opined that Claimant was not at medical end result with regard to her psychological condition. Depression, her primary psychological problem, has only been partially treated. More aggressive treatment will likely improve her depression and her functional abilities.
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16. Dr. Bucksbaum opined that Claimant was at medical end result with regard to her physical condition, an opinion that is supported by the record in this case and Department precedent. See Bertrand v. McKernon Group, Opinion No. 20-03WC (2003), even though Claimant may have the recommended fusion surgery in the future.
17. Based on Dr. Banco’s opinion, should Claimant opt for the surgery, her functioning should improve even further. More aggressive treatment for Claimant’s depression might also provide beneficial effects to Claimant’s functional abilities as a whole.
Vocational Rehabilitation
18. Vocational rehabilitation benefits are available when a work injury prevents an employee from performing work for which she had previous training and experience. See Wentworth v. Crawford and Company, 174 Vt. 118 (2002). The purpose of such benefits is “to restore the employee to suitable employment.” Id. at 354, citing 21 V.S.A. § 641(b). The statute does not “impose a duty on the employer or its insurer to develop a rehabilitation plan for [an injured employee],” but, rather, it “contemplates that the parties will cooperate in the development and implementation of the plan.” Wroten v. Lamphere, 147 Vt. 606, 612 (1987).
19. Claimant cannot establish that she is totally disabled for gainful employment, particularly where vocational rehabilitation has not been exhausted.
20. Ms. Plaisted is a certified vocational rehabilitation counselor who drafted an IWRP which planned to work toward Claimant’s obtaining a GED or high school diploma. Ms. Plaisted also encouraged a pursuit of home-based employment options, including the use of computers as was initially developed by Ms. Parker. Ms. Parker had testified that at the time she was developing her IWRP for home-based employment for Claimant, that Claimant did not have any complaints as to either her physical or cognitive abilities.
21. Ms. Plaisted’s pursuit of further vocational rehabilitation was quashed by the suggestion Claimant had carpal tunnel syndrome that limited her vocational rehabilitation after Ms. Plaisted had suggested computer work. Ms. Plaisted seeks to consider certain accommodations, particularly with regard to typing, including voice-activation, which to date have been rejected.
22. Ms. Plaisted opined that vocational rehabilitation efforts should not be closed. She advocates the pursuit of accommodations based on Claimant’s condition and full vocational testing. Ms. Plaisted also considered Claimant’s alleged bowel and bladder problems in considering options for home-based employment. Mr. LeRoy simply criticized the potential for home-based employment rather than pursuing a plan to fully explore certain options.
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Hot Tub
23. Palliative care is compensable under the Act even after a claimant has reached medical end result if it is reasonable and necessary and causally related to the work-related injury. 21 V.S.A. § 640(a); Coburn v. Frank Dodge & Sons, 165 Vt. 529, 532 (1996); Whetstone Log Homes, Opinion No.: 70-96WC (1986).
24. “In determining what is reasonable under § 640(a), the decisive factor is not what the claimant desires or what she believes to be the most helpful. Rather, it is what is shown by competent expert evidence to be reasonable to relieve the claimant’s back symptoms and maintain her functional abilities.” Quinn v. Emery Worldwide, Opinion No. 29-00WC (2000).
25. Claimant seeks, and Defendant denies, a hot tub for her home to ease the discomfort from her work related injury. Claimant rejects as impractical the suggestion that she use a hot tub in a public place because of her bowel problems.
26. The Department has denied coverage for hot tub therapy based on the opinion of a doctor who performed an IME on a claimant and stated that the relaxation of the muscle from a hot tub could only provide symptomatic relief, and would not treat Claimant’s underlying conditions. See Pickering v. Brattleboro Memorial Hospital, Opinion No. 12-96WC (1986) (hot tub no better than a bath).
27. In this case, Dr. Boucher opined that the use of a hot tub would only provide a short-term beneficial effect, mostly psychological, and that it would not provide any long-term physical beneficial effects.
28. Such a request with the minimal, if any relief, and probability that her home would have to be modified to accommodate the hot tub is not a reasonable treatment under § 640(a).
29. Furthermore, the problem she graphically described at hearing (constipation) would create no risk of contamination of a hot tub shared by others. Although she insists on the need for the hot tub, the evidence does not support her position that this will relieve her symptoms except for the briefest of periods. Nor is there convincing evidence that it will help her maintain her functional abilities.
Conclusion
30. The facts and objective evidence of this case clearly demonstrate that Claimant is not permanently and totally disabled as a result of her work-related injury. Claimant is not at medical end result for her psychological condition and improvement in her physical symptoms is likely if her depression is successfully treated. There exist opportunities for more aggressive and better psychological treatment that could benefit Claimant psychologically as well as her physical functioning.
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31. The evidence and testimony establish that the installation of a hot tub in Claimant’s home would not serve to improve Claimant’s condition, the Claimant has not established that the installation would even be plausible, and any accommodations required to install the hot tub on Claimant’s home would not be covered pursuant to the prevailing statute at the time of her work-related injury.
32. Finally, it has been established that vocational rehabilitation has not been fully pursued, and that other options exist for Claimant to work toward a return to work. These options should be fully explored and should not be summarily dismissed.
33. Finally, contrary to Dr. Grubman’s opinion, I find that Claimant’s psychological condition is causally related to the work related injury that set in motion a cascade of events. It is Black letter law that aggravation or acceleration of a preexisting condition is compensable. Marsigli Estate v. Granite City Sales, 124. Vt. 95, 103 (1964).
ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law, this claim for permanent total disability and the hot tub is DENIED.
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.

Craig Hankins v. Fred’s Plumbing & Heating (April 5, 2010)

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

Craig Hankins v. Fred’s Plumbing & Heating (April 5, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Craig Hankins Opinion No. 13-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Fred’s Plumbing & Heating
For: Patricia Moulton Powden
Commissioner
State File No. X-04015
OPINION AND ORDER
Hearing held in Montpelier, Vermont on November 6, 2009
Record closed on December 10, 2009
APPEARANCES:
Steven Robinson, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUES PRESENTED:
1. Has Claimant reached an end medical result for his compensable work-related injury?
2. If yes, is Claimant entitled to permanent total disability benefits?
3. If not, is Claimant entitled to additional temporary total disability benefits?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Vocational rehabilitation records
Claimant’s Exhibit 1: Deposition of Robert McLellan, M.D., October 27, 2009
Claimant’s Exhibit 2: Curriculum vitae, Robert McLellan, M.D.
Claimant’s Exhibit 3: Claimant’s Form 8, January 18, 2007
Defendant’s Exhibit A: Various surveillance reports with accompanying DVDs
CLAIM:
Permanent total disability benefits pursuant to 21 V.S.A. §644
Alternatively, temporary total disability benefits pursuant to 21 V.S.A. §642
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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.
Claimant’s Work Injury
3. Claimant worked for Defendant as a propane delivery truck driver. On January 23, 2006 he slipped and fell on the ice while making a delivery. Claimant fell to the ground with a twisting motion and landed hard on his back. He immediately felt pain in his lower back, with pain and numbness radiating down his right leg.
4. Claimant’s medical records reveal at least two prior instances of low back pain, one in the fall of 2003 and another one in early 2004. In both cases, Claimant complained of severe unrelenting back pain and demonstrated pain behaviors that appeared to be over-exaggerated. Also in both cases Claimant required very high dosages of narcotic pain medications to control his symptoms, apparently because he has a very high opioid metabolism rate.
5. As a result of the January 2006 fall, Claimant suffered a right-sided L5-S1 disc herniation. Consistent with his prior episodes of low back pain, Claimant complained of severe, relentless pain, exacerbated by even light activity and alleviated only briefly by extremely high dosages of narcotic analgesics. Conservative attempts to manage his symptoms, including physical therapy, epidural steroid injections and facet blocks, all failed.
6. In December 2006 Claimant underwent surgery, a right-sided L5-S1 microdiscectomy performed by Dr. Tranmer. Post-operatively he continued to experience severe lumbar radiculopathy and debilitating pain. Diagnostic studies revealed a recurrent disc herniation. In August 2007 Claimant underwent a second surgical procedure at the same level. Once again, his symptoms continued virtually unabated.
Current Symptoms and Treatment Recommendations
7. Claimant’s symptoms today are for the most part unchanged. He experiences severe low back pain, with pain and numbness radiating down his right leg and into his right foot. Often he suffers painful muscle spasms as well. He sleeps poorly at night and takes sporadic cat-naps during the day to catch up. He needs help washing his back and cannot tie his own shoes. Claimant testified that on a good day, he can walk short distances, run errands in his truck (which is equipped with a seat he finds comfortable), drive a riding lawn mower, push a grocery cart and carry a bag of groceries. On a bad day, he can do little more than sit and read.
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8. None of the doctors who have treated or examined Claimant since his second surgery can find a specific anatomical cause for the severe symptoms he continues to experience. Virtually every doctor has commented on the extreme pain behaviors Claimant exhibits on examination. They have described Claimant at various times as “writhing in pain,” moaning audibly, grimacing, crying and presenting “in pain extremis.”1 Most if not all also have expressed concern about Claimant’s ongoing use of narcotic pain medications, which he continues to take in very high dosages, though none have found any evidence that he is misusing the drugs in any way.
9. Currently Claimant continues to treat with Dr. McLellan, the chief of occupational medicine at Dartmouth Hitchcock Medical Center. Dr. McLellan is board certified in occupational medicine and experienced in pain management. Dr. McLellan first evaluated Claimant in April 2006, at the referral of Dr. Haas, Claimant’s treating physician at the time. Dr. McLellan again evaluated Claimant in February 2009, and has been monitoring his care since then.
10. In Dr. McLellan’s opinion Claimant now suffers from post-laminectomy syndrome, which essentially refers to a patient for whom surgery has failed to alleviate ongoing back and leg pain. Dr. McLellan acknowledges that spine imaging studies have not revealed a specific “pinch” point or other anatomic basis for Claimant’s lower extremity pain. For this reason, and also because Claimant already has failed two previous disc surgeries, Dr. McLellan does not consider him to be an appropriate candidate for additional surgery. This is consistent with the opinions of other consulting physicians as well.
11. Dr. McLellan also does not consider Claimant to be an appropriate candidate for a functional restoration program. Such a program encourages patients to develop appropriate coping strategies so that they are able to focus less on their pain and more on increasing their functional abilities. Psychological counseling and cognitive behavioral therapy are key components of functional restoration.
12. According to Dr. McLellan, unless the patient welcomes the concept and is interested in pursuing this type of approach, functional restoration is unlikely to be successful. Unfortunately, by all reports Claimant lacks insight as to the extent to which his symptoms might be driven at least in part by psychological factors. He appears stubbornly resistant, therefore, to the possibility that psychologically-based treatment might help alleviate his pain experience and thereby improve his functioning.
1 Claimant demonstrated some of these pain behaviors during the formal hearing. He frequently grimaced, sighed, changed his position while seated, stood up, leaned on his chair and moved about the room.
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13. This resistance was particularly evident in the context of the comprehensive pain evaluation Claimant underwent, at Dr. McLellan’s referral, with Dr. Fanciullo, a Dartmouth Hitchcock pain specialist. In his June 11, 2009 office note, Dr. Fanciullo described the visit in some detail:
I asked him early on about whether or not he had seen a mental health practitioner or a psychologist or psychiatrist. He responded that he does not like it when people talk to him about psychiatry. He spent almost the entire visit convincing me that he had pain and trying to convince me that he had requisite psychological skills to determine that he does not need to see a psychologist when it was so obvious that he does need to see a psychologist. . . . I explained to him on multiple occasions that this has been going on for over three years now and he really has to try to get over it, and he has not been able to get over it by himself and he needs some help to try to help him get over it.
. . .
Plan: We spent a long time together today . . . with me explaining to him that I would not be able to care for him unless he saw a psychiatrist. He insisted over and over that this problem was not in his head.
. . .
I have spent, as I mentioned, a great deal of time with him today talking about coping skills, the fact that it is likely that even if the opioids work, they will only reduce his pain by 30% and that he needs to learn how to cope with the pain and have . . . value [in] his life despite the fact that he has the pain and that he must eliminate the dramatic and abnormal pain behaviors that he exhibits so prominently. I think he disagrees with everything about the plan . . .
14. There is no indication in the medical records that Claimant ever pursued the psychiatric treatment upon which Dr. Fanciullo had insisted. At this point, given his low level of functioning and extreme pain focus, Dr. McLellan no longer considers him to be an appropriate candidate for functional restoration. Dr. McLellan testified that assuming Claimant’s attitude towards such an approach remains unchanged, in his opinion Claimant is at end medical result for his January 2006 injury.
15. Defendant presented evidence from three independent medical evaluators to the effect not only that Claimant is at end medical result, but also that he reached that point some time ago. Dr. Gennaro conducted an independent medical evaluation on April 3, 2008 and later determined that Claimant had reached an end medical result as of August 11, 2008. Dr. Ensalada performed a medical records review and, based on Dr. Gennaro’s earlier exam, determined that Claimant had reached an end medical result “no later than” April 3, 2008. Last, Dr. Kirkpatrick conducted an independent medical evaluation in October 2009 and concluded that Claimant likely had achieved end medical result in early 2009.
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16. In reaching their conclusions as to end medical result, both Dr. Gennaro and Dr. Kirkpatrick agreed that Claimant’s ongoing symptoms were either caused or aggravated by his January 2006 work injury. Notably, however, Dr. Ensalada came to view Claimant’s presentation differently.2 In Dr. Ensalada’s opinion, Claimant suffers from both somatoform pain disorder and an opioid abuse disorder. Dr. Ensalada believes that it is those two conditions, and not the January 2006 work injury, that account for Claimant’s persistent reports of severe pain and total incapacity.
17. Somatoform pain disorder refers to a mental or behavioral condition characterized by subjective complaints that far exceed any objectively determined evidence of physical pathology. It is a recognized behavioral disorder according to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). Patients who suffer from this condition unconsciously exaggerate their physical symptoms for psychological purposes.
18. Dr. Ensalada pointed to Claimant’s prior episodes of low back pain (referred to in Finding of Fact No. 4 above) as evidence of his “propensity to somaticize.” He noted that in both 2003 and 2004 Claimant’s treating physicians had commented on Claimant’s exaggerated pain behaviors and heavy use of narcotic pain medications. With that in mind, Dr. Ensalada concluded that at the time of Claimant’s January 2006 work injury both his somatoform pain disorder and his opioid abuse disorder were “active and pre-existing,” and that the 2006 event had neither caused nor aggravated nor accelerated those conditions in any way.
19. Dr. Ensalada acknowledged that he is not a licensed psychologist or psychiatrist and that he arrived at his diagnosis without personally having examined or interviewed Claimant. He also acknowledged that he previously had reviewed the medical records relating to Claimant’s prior episodes of low back pain in the context of his 2007 records review, but did not attribute Claimant’s symptoms to a psychological condition rather than a physical one at the time.
Claimant’s Work Capacity
20. Claimant has not worked since his January 2006 accident. In July 2009 he underwent a functional capacities evaluation. Based on that testing, the evaluator concluded that Claimant did not have sufficient work capacity to seek gainful employment. In reaching that conclusion, the evaluator noted that Claimant had self-limited on certain tests due to pain, such that his actual physical strength might have been somewhat greater than what he demonstrated. Even apart from Claimant’s strength testing, however, the evaluator determined that Claimant’s low tolerance for sitting, standing or weighted lifting precluded even sedentary work.
2 Initially, following an October 2007 medical records review Dr. Ensalada determined that the relationship between Claimant’s January 2006 work injury and the subsequent development of his radicular symptoms was “one of aggravation.” At Defendant’s request, Dr. Ensalada took a “second look” at Claimant’s medical records in May 2009, and in the course of that review reached his current opinion as to causation.
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21. Dr. McLellan concurs in this assessment of Claimant’s work capacity. In his opinion, Claimant is permanently and totally disabled. Dr. McLellan testified that the thought of Claimant being employable is incompatible with his presentation on exam – his pain-focused behaviors, his inability to stand straight and his described low level of functioning.
22. Defendant’s medical experts disagree. Drs. Gennaro, Ensalada and Kirkpatrick all opined that Claimant has a sedentary work capacity. In reaching this conclusion, both Dr. Gennaro and Dr. Ensalada discounted the results of the July 2009 functional capacities evaluation. In their opinion, an FCE measures only what a patient feels capable of doing on a particular day, and the results may be skewed by his or her fear of pain or reinjury. Consequently, while such testing may be helpful in terms of identifying a patient’s functional capacity, it is not necessarily definitive.
Vocational Rehabilitation
23. At Defendant’s referral, in August 2006 Claimant met with John May, a certified vocational rehabilitation counselor, to begin the process of determining whether Claimant was entitled to vocational rehabilitation services. At the meeting, Mr. May obtained information from Claimant as to his educational background and prior work experience. At the conclusion of the meeting Mr. May asked Claimant to review, sign and send back a medical release form so that Mr. May could review Claimant’s medical records.
24. Despite repeated subsequent requests, Claimant refused either to sign the medical release form or to provide a written explanation for his refusal to do so. Ultimately, Mr. May determined that Claimant was not interested in pursuing vocational rehabilitation services and closed his file.
25. Mr. May testified that had Claimant indicated his willingness to continue with the entitlement process, the next step would have been to identify a suitable vocational goal. In order to do so, Mr. May testified, he might have sought a more formal assessment of Claimant’s functional abilities, aptitudes and skills. In addition, he might have investigated various training options, adaptive equipment and assistive technologies that conceivably could help expand Claimant’s vocational options. Last, Mr. May testified that he might have reviewed Claimant’s medical treatment options to see how pursuing one or another would impact his vocational abilities. Without having done any of these things, Mr. May testified that he was unable either to identify an appropriate vocational goal or to develop a suitable return to work plan.
26. Claimant testified that he only vaguely recalled his interactions with Mr. May. He stated that he was in great pain at the time of Mr. May’s initial visit and that subsequently, during the time when Mr. May would have been sending his follow-up letters, he was recovering from his second surgery. Thereafter, in early 2007 Claimant sought to change vocational rehabilitation providers from Mr. May to another counselor who had been recommended to him. However, because he used the wrong form to do so the Department never acted on his request, and Claimant never pursued the matter himself.
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27. At the request of Claimant’s attorney, Greg LeRoy, a certified vocational rehabilitation counselor, met with Claimant to evaluate his ability to benefit from vocational rehabilitation services and return to gainful employment. Mr. LeRoy also reviewed Claimant’s medical records.
28. In Mr. LeRoy’s opinion, Claimant’s chronic pain, his use of narcotic pain medications, his poor coping skills and his psychologically driven pain behaviors preclude him from sustaining competitive employment, either with or without vocational rehabilitation services. In reaching this conclusion, Mr. LeRoy relied heavily on the results of the July 2009 functional capacities evaluation, which determined that Claimant lacked even a sedentary work capacity, and also on Dr. McLellan’s determination that Claimant had reached an end medical result and was permanently and totally disabled.
29. According to Mr. LeRoy, vocational rehabilitation services are appropriate only in cases in which the injured worker either has a viable work capacity or reasonably is expected to regain some with further treatment. Vocational rehabilitation services alone cannot create a work capacity. Thus, Mr. LeRoy testified, given that Claimant has reached an end medical result without having regained any work capacity, there is no basis for providing vocational rehabilitation services.
Surveillance
30. Defendant introduced evidence of eighteen non-consecutive days of surveillance conducted over a period of fourteen months, from August 2008 through October 2009. In addition to the investigators’ written reports, Defendant introduced approximately five hours of video documentation. The videos show Claimant performing such activities as mowing his lawn with a riding mower, driving to and from various locations, walking, standing, bending at the waist, pushing a shopping cart, and using a broom to clear snow from his truck.
31. The videos do not depict any clear instances of the type of marked pain behaviors Claimant’s doctors often noted. Notably, there is no audio component to the videos, so it is impossible to discern whether Claimant might have been expressing pain at any time while he was being monitored. Nevertheless, he is not observed to be visibly writhing in pain, grimacing or crying, for example. There are a few occasions during which it appears Claimant might be favoring his right leg slightly while walking, and one occasion during which it appears he might be leaning on a shopping cart for support, but even these instances are not so clearly depicted as to be conclusive. In all, at least during the five hours during which filming occurred, the videos appear to show Claimant attending to his daily activities in little, if any, apparent distress.
32. When asked to comment on the surveillance, Dr. Gennaro testified that he only reviewed a few minutes of the videos and that he saw nothing that was inconsistent with the July 2009 functional capacities evaluation. Dr. Ensalada testified that he watched all of the videos, and that Claimant’s behavior appeared very different from what had been documented in the medical records he had reviewed.
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33. Dr. McLellan did not watch the videos. Upon hearing a description of the types of activities depicted, he acknowledged that they seemed at odds with Claimant’s typical presentation during most of his office visits. Dr. McLellan also acknowledged, however, that he would expect Claimant to have both “good” and “bad” days, and that he would encourage him to be as active as possible every day.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
3. The dispute here centers on whether Claimant’s January 2006 work injury has rendered him permanently and totally disabled. Claimant points to three pieces of evidence in support of his claim – first, the July 2009 functional capacities evaluation, which determined that he lacked even a sedentary work capacity; second, Dr. McLellan’s opinion that he is permanently and totally disabled; and third, Mr. LeRoy’s conclusion that he is not an appropriate candidate for vocational rehabilitation services.
4. Against this evidence, Defendant counters with the opinions of Drs. Gennaro, Ensalada and Kirkpatrick, all of whom determined that Claimant has a sedentary work capacity. Beyond that, Defendant argues that Claimant failed to engage properly with the vocational rehabilitation services that Mr. May offered him in 2007, and that it is premature to consider him permanently unemployable until he does so. Third, Defendant points to Dr. Ensalada’s diagnosis of somatoform pain disorder rather than the January 2006 work injury as the cause of Claimant’s current symptoms. Last, Defendant asserts that the surveillance reports and videos document Claimant engaging in activities that are inconsistent with his subjective complaints of pain and previously demonstrated pain behaviors.
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Permanent Total Disability
5. Under Vermont’s workers’ compensation statute, a claimant is entitled to permanent total disability benefits if he or she suffers one of the injuries enumerated in §644(a), such as total blindness or quadriplegia. In addition, §644(b) provides:
The enumeration in subsection (a) of this section is not exclusive, and, in order to determine disability under this section, the commissioner shall consider other specific characteristics of the claimant, including the claimant’s age, experience, training, education and mental capacity.
6. The workers’ compensation rules provide further guidance. Rule 11.3100 states:
Permanent Total Disability – Odd Lot Doctrine
A claimant shall be permanently and totally disabled if their work injury causes a physical or mental impairment, or both, the result of which renders them unable to perform regular, gainful work. In evaluating whether or not a claimant is permanently and totally disabled, the claimant’s age, experience, training, education, occupation and mental capacity shall be considered in addition to his or her physical or mental limitations and/or pain. In all claims for permanent total disability under the Odd Lot Doctrine, a Functional Capacities Evaluation (FCE) should be performed to evaluate the claimant’s physical capabilities and a vocational assessment should be conducted and should conclude that the claimant is not reasonably expected to be able to return to regular, gainful employment.
7. A finding of odd-lot permanent total disability is not to be made lightly. Gaudette v. Norton Brothers, Inc., Opinion No. 49-08WC (December 3, 2008). For that reason, and as Rule 11.3100 makes clear, typically there must be evidence to establish first, what the injured worker’s functional capabilities are, and second, that no viable vocational options exist within those capabilities. Id.; Prescott v. Suburban Propane, Opinion No. 42-09WC (November 2, 2009).
8. Here, I accept the results of the July 2009 functional capacities evaluation, together with Dr. McLellan’s opinion, as the most credible evidence of Claimant’s functional capabilities. Based on that evidence, I find that Claimant’s low tolerance for sitting or standing, his heavy reliance on narcotic pain medications and his pain-focused behaviors preclude even a sedentary work capacity. While it may be true, as Drs. Gennaro and Ensalada attested, that a functional capacities evaluation measures only what a patient feels able to do on a particular day, Defendant provided no objective evidence that Claimant probably would have tested better on a different day.3 Without such evidentiary support, Defendant’s expert opinions are unpersuasive.
3 Of note, neither Dr. Gennaro nor Dr. Ensalada could point to any specific activities captured on the surveillance videos that were inconsistent with the results of Claimant’s functional capacities evaluation.
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9. I agree with Claimant’s vocational expert, furthermore, that vocational rehabilitation has no place in a case where, as here, the injured worker lacks the functional capacity to support even sedentary work. As Mr. LeRoy cogently explained, vocational rehabilitation services alone cannot create a work capacity where one does not otherwise exist.
10. Last, I find credible Dr. McLellan’s assertion that Claimant is unlikely to benefit from further treatment, including functional restoration, and that therefore his disability is now permanent. Were Claimant a different person, one less focused on his pain and more open to the interplay between the mind and the body, he might be receptive to a psychologically based treatment approach. Unfortunately, however, Dr. McLellan appropriately acknowledged that he is not. Indeed, not even Defendant’s medical experts have recommended further treatment along these lines.
11. Having concluded that a functional restoration program is not a viable treatment option, I accept as most credible Dr. Gennaro’s determination that Claimant reached an end medical result for his January 2006 work injury on August 11, 2008.
Somatoform Pain Disorder
12. I conclude, therefore, that Claimant has met his burden of proving that he is permanently and totally disabled. To establish his right to benefits, however, Claimant also must show that his disability was either caused or aggravated by his January 2006 work injury. Defendant points to Dr. Ensalada’s expert opinion as evidence that it was not.
13. Dr. Ensalada testified that the best explanation for Claimant’s current symptoms and disability is somatoform pain disorder. According to him, this diagnosis is more a characteristic of Claimant’s psychological makeup, not a consequence of his January 2006 work injury.
14. I find Dr. Ensalada’s analysis unconvincing. First, although I acknowledge his impressive credentials, Dr. Ensalada is not a trained or licensed mental health professional. I question the propriety of accepting his diagnosis of a psychologically-based behavioral disorder without the benefit of more formal psychological testing and evaluation.
15. In addition, I find troubling the fact that Dr. Ensalada did not even interview Claimant himself, but rather based his diagnosis solely on his review of the medical records. Diagnosing a psychological condition is not the same as reviewing x-rays or MRI scans. To do so based only on second-hand reports noted in a cold medical record seems unreliable and unscientific.
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16. Last, it is not clear to me from Dr. Ensalada’s testimony exactly what the basis for his diagnosis was. Certainly many doctors commented on Claimant’s pain-focused behaviors and propensity to magnify his symptoms. But presumably not every instance of symptom magnification merits a diagnosis of somatoform pain disorder. To the contrary, presumably this is where further psychological testing typically is called upon to provide the additional information necessary either to support or to refute a diagnosis of somatoform pain disorder. See, e.g., Karabegovich v. Monahan SFI, Opinion No. 37-09WC (September 29, 2009).
17. For all of these reasons, I find Dr. Ensalada’s analysis unpersuasive. I accept instead Dr. McLellan’s determination, with which both Dr. Gennaro and Dr. Kirkpatrick concurred, that Claimant’s current symptoms and disability were either caused or aggravated by his January 2006 work injury.
Surveillance
18. As a final defense, Defendant asserts that the surveillance reports and videos document activities that are at odds with Claimant’s subjective complaints and dramatic pain behaviors, so much so as to call his credibility into question and undermine any finding of permanent total disability. I disagree. The videos do no more than depict Claimant engaging in activities that he admitted he was able to undertake on a “good” day, such as using a riding lawn mower, driving in his truck and running errands. They do not show what he is able to do – or not – on a “bad” day. They are extremely limited in scope – just five hours of video spread out over a period of fourteen months – and have no audio component. I do not find in them sufficient evidence either to undermine Claimant’s own testimony or to negate the conclusions of his medical and vocational experts.
19. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $5,017.56 and attorney fees totaling $15,327.00. An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded.
20. As for attorney fees, Claimant’s request includes not only the fees incurred pursuing the current matter to formal hearing, but also fees incurred in 2007 and 2008 relating to issues that ultimately were resolved short of formal hearing. According to Workers’ Compensation Rule 10.1300, such fees are recoverable only in limited instances, under circumstances that do not apply here. I find that the total amount of fees incurred pursuing issues unrelated to the current hearing was $3,942.00; these fees are not recoverable. As to the remainder, which total $11,385.00, these lie within the Commissioner’s discretion. I find they are appropriate here, and therefore these fees are awarded.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Permanent total disability benefits commencing on August 11, 2008;
2. Interest on the above amounts calculated in accordance with 21 V.S.A. §664;
3. Costs totaling $5,017.56 and attorney fees totaling $11,385.00.
DATED at Montpelier, Vermont this 5th day of April 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.

Dolores Drew v. Northeast Kingdom Human Services (August 31, 2011)

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

Dolores Drew v. Northeast Kingdom Human Services (August 31, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Dolores Drew Opinion No. 23-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Northeast Kingdom
Human Services For: Anne M. Noonan
Commissioner
State File No. U-1564
OPINION AND ORDER
Hearing held in Montpelier, Vermont on March 21, 2011
Record closed on May 12, 2011
APPEARANCES:
Steven Robinson, Esq., for Claimant
Eric Johnson, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant permanently and totally disabled as a result of her May 1, 2003 work-related injury?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Deposition of Charles Alexander, January 28, 2011
CLAIM:
Permanent total disability benefits pursuant to 21 V.S.A. §645
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 her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim. Judicial notice also is taken of the Commissioner’s prior Opinion and Order in this claim, D.D. v. Northeast Kingdom Human Services, Opinion No. 47-06WC (January 9, 2007).
Claimant’s Vocational and Medical History
3. Claimant is a high school graduate. Her employment experience is almost exclusively in the personal care field. She has worked as a nurse’s aide, in both nursing home and private duty settings. Aside from this hands-on experience, Claimant has had no other vocational training or advanced educational coursework.
4. Claimant’s prior medical history is significant for morbid obesity, peripheral edema in her lower extremities and anxiety and depression. She also has a history of low back pain following a fall at work in 1994. Claimant was disabled from working for a time after that injury, but later returned to full-time employment. Aside from some brief episodes of low back pain subsequently, neither this nor any of Claimant’s other pre-existing conditions was disabling prior to May 1, 2003.
Claimant’s May 2003 Work Injury and Subsequent Medical Course
5. Claimant began working for Defendant as a day services provider in 1998. Her duties included providing daily assistance to the mentally challenged residents of a group home. Claimant helped them with personal care and other daily living activities and also accompanied them on trips within the community.
6. On May 1, 2003 Claimant was helping a co-worker to retrieve some supplies for the night shift. As she was descending a flight of stairs her foot slipped. Claimant slid down the stairs on her backside, landing at the bottom with her right knee tucked up under her left leg.
7. Defendant accepted Claimant’s injuries, which it initially characterized as a right knee strain and low back contusion, as compensable and began paying workers’ compensation benefits accordingly.
8. For her right knee injury Claimant treated with Dr. Gagnon. Dr. Gagnon diagnosed a knee contusion, which he treated conservatively. Claimant reached an end medical result for this injury on April 14, 2004 and was rated with a 3 percent whole person permanent impairment. Aside from some limitation as to climbing stairs, Claimant’s right knee injury does not otherwise restrict her ability to work.
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9. For her lower back injury Claimant has treated principally with her primary care provider, Susan Taney, a nurse practitioner. From the beginning, her symptoms have consisted of an aching, burning pain across her lower back, with some muscle spasm but no clear radicular component. She sleeps fitfully and can neither sit nor stand for extended periods of time without having to change position. Her tolerance for walking is extremely limited. Claimant also suffers from depression, at least in part causally related to her chronic pain and physical limitations. She spends most of her day napping, performing very light housework, watching TV and engaging in craft projects.
10. Diagnostic imaging studies have revealed some degenerative disc changes in Claimant’s lumbar spine, but no definitive herniations. For that reason, treatment has focused on conservative rather than surgical measures. Neither physical therapy nor injections has provided any long-term symptom relief. For years now, Claimant has relied on narcotic pain medications as her primary means of managing her symptoms. These have been appropriately prescribed and never abused.
11. In July 2004 Claimant began a multi-disciplinary functional restoration program at the Work Enhancement Rehabilitation Center (WERC) in Williston. Programs such as this combine physical therapy, occupational therapy, pain management and psychological counseling in a structured in-patient setting. The goal is to assist patients to develop both the physical capacity and the coping skills necessary to achieve clearly delineated functional goals, be they work-related, domestic or recreational. Claimant had successfully completed the WERC program following her previous low back injury in 1994. Given both her prior success and her current functional limitations, Dr. Cody, who evaluated her for entry into the three-week intensive program, concluded that she was a “perfect candidate.”
12. Unfortunately, this time Claimant was unable to complete the WERC program. Shortly after starting it her grandfather was killed in a motor vehicle accident. In addition, while engaged in program activities she experienced an episode of dizziness, which her primary care provider, Ms. Taney, felt warranted further diagnostic work-up before continuing. For these reasons, Claimant left the program after only four days.
13. In September 2004 Claimant was diagnosed with a pituitary tumor, and later with complex migraine headaches. These conditions were successfully treated, and by early 2005 Ms. Taney was once again strongly advocating for Claimant to resume an in-patient functional restoration program.
14. At Defendant’s request, in May 2005 Claimant underwent an independent medical examination with Dr. Gennaro. Dr. Gennaro determined that Claimant likely had sustained a low back strain as a result of her work injury, but that her ongoing symptoms were no longer attributable to that event. Instead, Dr. Gennaro pointed to Claimant’s morbid obesity and severe deconditioning as the principal impediments to her recovery.
15. As for functional restoration, Dr. Gennaro concluded that such a program was neither necessitated by Claimant’s work injury nor likely to change her circumstances, and therefore he would not recommend it. Rather, Dr. Gennaro identified extreme weight loss as the most efficacious way to improve Claimant’s condition in the long run.
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16. Dr. Gennaro concluded that Claimant had reached an end medical result for her work injury and rated her with a 5% whole person permanent impairment. With this opinion as support, in August 2005 Defendant discontinued Claimant’s temporary total disability benefits. It also refused to pay for Claimant to resume participation in a functional restoration program.
17. Claimant appealed Defendant’s discontinuance. In support of her position she produced evidence from Ms. Taney and other medical providers indicating that she likely would derive great benefit from a functional restoration program, as it would improve her chances of successfully returning to work.
18. Based on the evidence adduced at formal hearing, the Commissioner rejected Dr. Gennaro’s end medical result determination, and instead ordered Defendant both to reinstate temporary disability benefits and to fund Claimant’s renewed participation in a functional restoration program. D.D. v. Northeast Kingdom Human Services, Opinion No. 47-06WC (January 9, 2007). As to the latter issue, the Commissioner stated:
[T]he Defendant’s assertion that the Claimant will not benefit from a functional restoration program because of her weight is untenable. “An employer takes each employee as is and is responsible under workers’ compensation for an injury which disables one person and not another.” Stoddard v. Northeast Rebuilders, Opinion No. 28-04WC (2004) (citing Morrill v. Bianchi, 107 Vt. 80 (1935)). Before the work injury, the Claimant was fully capable of performing her job as a full time service provider and healthcare attendant at her current weight. Aside from obesity and deconditioning, the Defendant offers no other physical impediment that might bar the Claimant from benefiting from a work hardening program. As such, a functional restoration program designed to increase the Claimant’s conditioning and help her cope with her low back pain is an entirely reasonable and necessary treatment.
Id., Conclusion of Law No. 10.
19. Claimant did not re-enter the WERC program following the Commissioner’s decision. Instead, she worked with Ben McCormack, a physical therapist who had treated her previously, to fashion a similar program closer to home. Mr. McCormack was able to provide a supervised therapeutic exercise regimen, as well as functional testing and training in body mechanics, positional tolerances and proper lifting techniques. There were no psychological or behavioral components to his program, however, nor was treatment provided in an in-patient setting. For these reasons, I find that the services Claimant received through Mr. McCormack were not truly equivalent to the type of functional restoration program that WERC had offered.
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20. Claimant began Mr. McCormack’s program in late February 2007. Unfortunately, in early April she developed plantar fasciitis and had to discontinue treatment until that condition resolved. Claimant returned to Mr. McCormack for a single visit in late August 2007, but for reasons that are unclear from the record did not re-engage in therapy thereafter.1
21. At Defendant’s request, in May 2007 Claimant underwent an independent medical examination with Dr. McLellan, an occupational medicine specialist. Dr. McLellan determined that Claimant had reached an end medical result for her work-related back injury and that any further treatment she required was necessitated by her obesity and associated deconditioning. In this respect, Dr. McLellan’s opinions were essentially the same as those Dr. Gennaro earlier had expressed, which the Commissioner specifically had rejected in her January 2007 Opinion and Order. Nevertheless, the Department subsequently approved Defendant’s discontinuance of temporary total disability benefits effective August 17, 2007 on the grounds that Claimant had reached an end medical result.
22. Aside from narcotic pain medications, since discontinuing Mr. McCormack’s program Claimant has not undergone any additional treatment directed specifically at her chronic low back pain. She remains severely deconditioned, particularly from a cardiovascular perspective. She is even more morbidly obese than she was prior to her work injury, having gained approximately 100 pounds since 2003. Her venous insufficiency and resulting peripheral edema have worsened as well.
23. Claimant has experienced two or three acute exacerbations of her low back pain since her initial injury in 2003. One such exacerbation occurred in October 2005, when she rolled over in bed. Another occurred after attending her grandson’s football game. I find from the credible medical evidence that these and other minor exacerbations caused only temporary increases in Claimant’s pain, following which she returned to her baseline. None of these incidents account for her current and ongoing symptoms.
1 The parties stipulated that the only issue regarding functional restoration that was to be addressed at the current hearing was whether such a program constitutes reasonable, necessary and causally related treatment for Claimant’s work injury. By stipulation, no evidence was introduced as to whether Claimant refused to participate in a functional restoration program after 2007 and/or whether Defendant refused to pay for her to do so.
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Medical Opinions as to Functional Restoration
24. The medical evidence is conflicting as to whether Claimant still might benefit from participation in a structured functional restoration program. Specifically:
• Ms. Taney continues to believe that a structured in-patient functional restoration program likely will improve Claimant’s condition both physically and psychologically, though perhaps not to the point necessary to enable her to return to gainful employment.
• Based both on his initial 2005 evaluation and on subsequent examinations conducted in 2006 and 2011, Dr. Gennaro continues to believe that the primary cause of Claimant’s disability, and the chief impediment to her recovery, is her morbid obesity. Although he acknowledges that weight loss and aerobic conditioning would be very beneficial in terms of improving Claimant’s level of function, given her obesity-related health issues he does not believe that she is an appropriate candidate for a WERC-type functional restoration program.
25. There is an alternative to the WERC program, one that is less physically intensive and more psychologically based, at least to start. This program, run through the Occupational Disability Management Center (ODMC) in Rutland, offers interdisciplinary treatments such as behavioral counseling, pain management education and gentle movement-oriented therapies. The goal is to reframe a patient’s disability perception, reduce the fear of re-injury and use exercise activity to stimulate natural pain-relieving endorphins. This type of program differs from the more traditional work-hardening model employed at WERC by its ability to accommodate patients who are perhaps less healthy and more burdened by psychosocial issues.
26. Upon reviewing Claimant’s medical records, Dr. Mann, the licensed psychologist/doctorate who both owns and manages the ODMC program, has concluded that she is a good candidate, and that her participation likely will increase her level of functioning and improve her overall health. Even Dr. Gennaro conceded that Claimant likely would fare better in a more behaviorally-based program such as ODMC’s than she would in a WERC-type program.
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Medical Opinions as to Claimant’s Functional Capacity and Ability to Work
27. Claimant has not worked since her May 2003 accident. The medical opinions as to her functional capacity and ability to work have varied over time:
• In June 2005 the results of a functional capacity evaluation indicated that Claimant was capable of working three hours per day in a light capacity, and likely more in a sedentary capacity provided she was allowed positional changes;
• In July 2005 Ms. Taney released Claimant to part-time (five hours per day) light capacity work, with restrictions against lifting and prolonged driving;
• Following his May 2007 independent medical examination, Dr. McLellan concluded that considering only Claimant’s work-related low back injury she was capable of sedentary work, but the combination of her non-work-related conditions (obesity, peripheral edema, plantar fasciitis, complex migraines and depression) rendered her totally disabled;
• A repeat functional capacity evaluation in November 2007 determined that Claimant was capable of sustaining sedentary level work for an eight-hour day, again provided that she was allowed to change positions frequently;
• In May 2008 Ms. Taney released Claimant to part-time (four hours per day, three days per week) work, gradually increasing her hours to tolerance and with restrictions against heavy lifting and prolonged standing or sitting;
• A third functional capacity evaluation in May 2010 determined that Claimant had a part-time (four hours per day, five days per week) sedentary work capacity, and was limited from doing more primarily because of her poor cardiovascular conditioning and endurance level;
• Consistent with his January 2011 independent medical examination, Dr. Gennaro testified at the formal hearing that Claimant currently has a part-time (20 hours per week) sedentary work capacity;
• Ms. Taney testified at hearing that she no longer believes that Claimant can sustain even part-time sedentary employment on a regular basis.
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Vocational Rehabilitation Efforts
28. Claimant initially was found entitled to vocational rehabilitation services in 2005. She worked with Defendant’s assigned vocational rehabilitation counselor, Melanie Hamilton, to develop a suitable return to work plan. The goal was to find employment in the personal care field, for example as a care attendant or companion, within the parameters of Ms. Taney’s July 2005 work release.
29. In September 2005 Claimant was hired to work as a night-duty personal care attendant for an elderly woman. Unfortunately, on the day she was to start she suffered a severe bout of edema in her legs. As a result, Ms. Taney disabled her from working for at least a month. By the time Claimant recovered, the job was no longer available.
30. In January 2006 Claimant decided to change vocational rehabilitation counselors. Her new counselor, George Fotinopoulos, proposed a plan to return Claimant to work as an elderly companion. However, due to what Mr. Fotinopoulos characterized as a “lack of cooperation” from Defendant, the Department or the parties’ attorneys, this plan was neither endorsed nor approved.
31. In February 2008 Claimant began working with yet another vocational rehabilitation counselor, William O’Neill. Mr. O’Neill’s return to work plan had as its goal work as a human services paraprofessional. Given Claimant’s extended period of time out of work, Mr. O’Neill suggested that she consider volunteer as well as paid opportunities within that field.
32. To that end, in December 2008 Claimant began volunteering as a companion to a friend of hers who was in the advancing stages of ALS. Although the friend lived just four trailers down – a distance of only five or six hundred feet – Claimant was unable to manage the walk, and instead had to drive. Once there, she helped the friend to eat, drink and take medications, watched TV with her and occasionally ran brief errands. Claimant did not prepare meals, assist with toileting or engage in any other more strenuous activities.
33. Claimant’s friend died in May 2009. At that point Mr. O’Neill anticipated that Claimant would devote her efforts to transitioning from volunteer work to paid employment, but this did not occur. Instead, Claimant voiced concern that she was not physically capable of performing full-time work. In August 2009 she requested that vocational rehabilitation services be suspended while she sought Defendant’s approval for an updated functional capacity evaluation.
34. As noted above, see Finding of Fact No. 27, the May 2010 functional capacity evaluation determined that Claimant was capable of working at only a part-time sedentary level. With this limited capacity, Mr. O’Neill concluded that vocational rehabilitation services were unlikely to restore her to employment that would approximate her pre-injury wages. For that reason, he closed his file.
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35. Mr. O’Neill testified at hearing that despite having closed Claimant’s file he still believes that vocational rehabilitation services would assist her to return to work. Claimant has a pleasing personality and is a very caring individual, both traits that make her a good match for work in her chosen field. I find this testimony to be credible.
36. Claimant has been receiving social security disability benefits since 2006. In the eight years since her May 2003 work injury she has formally applied for only fifteen jobs. Although I find credible Claimant’s stated desire to return to work, I also find that in at least some respects – for example, her ability to sit, stand or walk for more than the briefest period of time – she perceives herself to be more disabled than is actually established by her measured limitations.
Expert Vocational Rehabilitation Opinions
37. Each party presented its own expert testimony as to whether Claimant has any reasonable prospect of finding and sustaining regular employment, either with or without vocational rehabilitation assistance. Testifying on Claimant’s behalf, Greg LeRoy concluded that she does not. Testifying for Defendant, John May concluded that she does. Both Mr. LeRoy and Mr. May are certified vocational rehabilitation counselors who are well qualified to provide opinions as to Claimant’s vocational prospects.
(a) Mr. LeRoy
38. The starting point for Mr. LeRoy’s opinion was his assumption that Claimant is unlikely to achieve any further improvement in her work capacity beyond the part-time sedentary level indicated by her 2010 functional capacity evaluation. Given Claimant’s narrow work history, her lack of advanced formal training and her limited physical capabilities, Mr. LeRoy concluded that the selection of jobs for which she might still qualify – as a personal care attendant, for example, but with no hands-on care, cooking or housecleaning required – was very limited. The competition for job vacancies in Claimant’s area would be keen, furthermore, and in Mr. LeRoy’s opinion she would not compare favorably to other applicants. For these reasons, in Mr. LeRoy’s opinion Claimant likely is unemployable.
39. Mr. LeRoy acknowledged that the primary means of changing Claimant’s vocational prognosis and restoring her to gainful employment would be to improve her level of functioning. He conceded that the question whether a multidisciplinary functional restoration program might help her achieve this result was a medical one, and therefore beyond his area of expertise.
40. Mr. LeRoy also conceded that past efforts at vocational rehabilitation never proceeded beyond encouraging Claimant to seek jobs that matched her current skill level and educational background. In that sense, the more advanced steps in the vocational rehabilitation hierarchy – new skill training and/or education, for example – still have not been exhausted.
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41. Last, Mr. LeRoy expressed some frustration with the fact that according to his interpretation of Vermont law Claimant might not be entitled to further vocational rehabilitation services, because her part-time sedentary work capacity is unlikely to lead to employment that will approximate her pre-injury wages. His own professional preference would be to allow her continued access to vocational rehabilitation assistance in the hopes of capitalizing on whatever work capacity she has.
(b) Mr. May
42. In Mr. May’s opinion, it is as yet premature to conclude that Claimant has no reasonable prospect of gainful employment and is therefore permanently and totally disabled. He cited numerous vocational rehabilitation resources that likely would increase Claimant’s employability, such as proactive assistance with job search activities, new skill training, job modification and home employment options.
43. Mr. May acknowledged that there are numerous hurdles to Claimant’s successful return to regular gainful work, including her chronic pain, her obesity and other co-morbid medical conditions and her overall deconditioning. In his opinion, Claimant’s vocational prospects would be significantly enhanced were she to participate successfully in a multidisciplinary functional restoration program. Even without such a program, however, in Mr. May’s experience claimants who return to work on a graduated schedule often demonstrate improved endurance, conditioning and function over time. Were Claimant to return to work initially at a part-time sedentary job, she likely would be able to increase her hours over time. I find this testimony to be credible.
44. Mr. May conducted a cursory labor market survey, from which he concluded that jobs consistent with Claimant’s abilities likely exist in her labor market area. According to his limited research, the patient companion field is a high growth occupation, and not all of these jobs require walking or lifting beyond Claimant’s current limitations.
CONCLUSIONS OF LAW:
1. Claimant seeks permanent total disability benefits. She alleges that the combination of her compensable work injury, her pre-existing and co-morbid medical conditions and her functional restrictions so limit her vocational options as to render her incapable of sustaining regular, gainful work.
2. Defendant asserts in response that both medical treatment and vocational rehabilitation options exist that, if successfully pursued, will decrease Claimant’s functional restrictions and enhance her ability to find and sustain suitable employment. It is premature, therefore, to declare her permanently and totally disabled.
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3. 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.
4. 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.
5. As the name suggests, there are two separate prongs to the permanent total disability determination. First, the disability under consideration must be permanent, as opposed to temporary. Second, it must be total, as opposed to partial.
6. Conflicting medical evidence was offered as to the permanent nature of Claimant’s disability, specifically whether her condition is likely to improve should she agree to participate in an ODMC-type functional restoration program. I conclude that it is.
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7. As ODMC’s owner/manager, Dr. Mann’s testimony as to Claimant’s suitability for that program is somewhat tainted by his financial interest in having her as a client. Even Defendant’s expert acknowledged, however, that with its heightened focus on removing behavioral and psychological barriers to increased function, a program such as ODMC’s is better suited to treating a person with Claimant’s current limitations than a more physically-based program would be. And Claimant’s primary care provider, Ms. Taney, who has followed her progress for many years and is intimately familiar with her many medical issues, also believes that Claimant likely will realize functional gains through a multidisciplinary treatment approach. There is, of course, no guarantee of success, but on the basis of these medical opinions I conclude that there is sufficient justification at least to attempt it should Claimant be willing to do so.
8. As for the second prong of the permanent total disability determination, the May 2010 functional capacity evaluation rated Claimant with a part-time sedentary work capacity. I conclude that that is a more accurate estimate of her current physical capabilities than Ms. Taney’s summary testimony to the contrary. The question still remains, however, whether that work capacity, when considered in conjunction with Claimant’s transferable skills, education and other odd lot factors, translates into viable vocational options for regular, gainful employment.
9. I am persuaded by Mr. May’s testimony on this issue that it is as yet premature to conclude that Claimant is permanently unemployable, even at her current work capacity. Vocational rehabilitation resources exist that, if properly explored, still might lead to suitable gainful employment.
10. Vermont’s vocational rehabilitation rules specifically delineate the hierarchy of options that a counselor should consider in devising an appropriate return to work plan, from job development to new skill training to advanced education to self-employment. Workers’ Compensation Rule 55.2000. Certainly in some cases it may be self-evident that pursuing the more advanced vocational options is likely to be fruitless, see, e.g., Prescott v. Suburban Propane, Opinion No. 42-09WC (November 2, 2009), but I do not consider that to be the case here. Here, Mr. LeRoy acknowledged that the vocational assistance Claimant received never proceeded beyond job development, but gave no justification at all for why other options were not considered.
11. I conclude that Claimant has not sustained her burden of proving that she has no reasonable prospect of finding and sustaining regular, gainful employment. She is not entitled to permanent total disability benefits, therefore.
12. Having concluded that Claimant is neither permanently nor totally disabled, it remains to consider whether she is entitled to additional temporary total disability and/or vocational rehabilitation benefits.
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13. In the earlier decision involving this claim, the Commissioner determined that a functional restoration program offered at least the prospect of further improvement in the medical recovery process, which is sufficient under our rules to negate a finding of end medical result. Workers’ Compensation Rule 2.1200; D.D. v. Northeast Kingdom Human Services, Opinion No. 47-06WC (January 9, 2007); see also, Cochran v. Northeast Kingdom Human Services, Opinion No. 31-09WC (August 12, 2009). Should Claimant choose to participate in either the ODMC or a similar in-patient program, she will be entitled to temporary total disability benefits at least as of the date such treatment begins.
14. I cannot determine from the evidence before me whether Claimant also might be entitled to temporary total disability benefits from the time when these were discontinued in August 2007 forward. Her entitlement to such benefits may depend at least in part on whether her failure to pursue functional restoration was because she was not interested in doing so or because Defendant refused to pay. The parties having stipulated not to address this issue at hearing, I cannot yet decide it.
15. Last, I conclude that Claimant is entitled to additional vocational rehabilitation services geared towards accomplishing the goal of returning her to regular, gainful work. I agree with Mr. LeRoy that the purpose of vocational rehabilitation assistance should be to capitalize on whatever work capacity Claimant has. The fact that even with such assistance she still may not find employment that approaches 100% of her pre-injury wages does not disqualify her. Consistent with the spirit of Vermont’s vocational rehabilitation program, so long as the “closest reasonably attainable wage to 100%” still qualifies as regular, gainful employment, services ought to continue. Workers’ Compensation Rule 51.2700.
16. Claimant seeks an award of costs totaling $10,959.98 and attorney fees totaling $34,491.50.2 Ordinarily, a claimant is entitled to an award of only those costs that relate directly to the claims upon which he or she has prevailed. Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003), citing Brown v. Whiting, Opinion No. 7-97WC (June 13, 1997).
17. Here, Claimant failed to prevail on her claim for permanent total disability benefits, but she did succeed in establishing her right to additional temporary total, medical and vocational rehabilitation benefits. Considering her costs in this light, Mr. LeRoy’s fees must be disallowed, as their purpose was primarily to establish her unsuccessful claim. Subtracting these from the total, Claimant is awarded costs of $2,394.92.
2 Claimant’s fee request is based on a billing rate of $90.00 per hour for work performed prior to June 15, 2010. Work performed after that date is based on a rate of $145.00 per hour, in accordance with amended Workers’ Compensation Rule 10.1210. See Erickson v. Kennedy Brothers, Inc., Opinion No. 36A-10WC (March 25, 2011).
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18. 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. The dollar value of Claimant’s recovery here is substantially less than what she would have received had she prevailed on her permanent total disability claim, but there is value nonetheless in the temporary disability, medical and vocational rehabilitation benefits she has been awarded. Under these circumstances I find it appropriate to award Claimant 30 percent of her claimed fees, or $10,347.45.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Medical benefits in conjunction with Claimant’s participation in an ODMC or similar in-patient functional restoration program, pursuant to 21 V.S.A. §640;
2. Temporary total disability benefits for the period of time during which Claimant is enrolled in such a program, pursuant to 21 V.S.A. §642;
3. Vocational rehabilitation benefits pursuant to 21 V.S.A. §641;
4. Costs totaling $2,394.92 and attorney fees totaling $10,347.45.
DATED at Montpelier, Vermont this 31st day of August 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.

Leo Moulton v. J.P. Carrera, Inc. (October 11, 2011)

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

Leo Moulton v. J.P. Carrera, Inc. (October 11, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Leo Moulton Opinion No. 30-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
J.P. Carrera, Inc.
For: Anne M. Noonan
Commissioner
State File No. X-63476
OPINION AND ORDER
Hearing held in Montpelier, Vermont on April 25 and 26, 2011
Record closed on June 16, 2011
APPEARANCES:
James Dumont, Esq., for Claimant
James O’Sullivan, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant permanently and totally disabled as a consequence of his work activities on or about September 17, 2004?
2. If not, is Claimant entitled to vocational rehabilitation services as a consequence of his September 2004 work injury?
3. Is Defendant obligated to pay various medical bills incurred for treatment of Claimant’s neck condition as causally related to his September 2004 work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: CD of x-rays, 4/14/11
Joint Exhibit III: Supplemental medical records
Claimant’s Exhibit 1: Various photographs
Claimant’s Exhibit 2: Various correspondence
Claimant’s Exhibit 3: Curriculum vitae, Gregory LeRoy
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CLAIM:
Permanent total disability benefits pursuant to 21 V.S.A. §645
Medical benefits pursuant to 21 V.S.A. §640
Vocational rehabilitation benefits pursuant to 21 V.S.A. §641
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 and correspondence contained in the Department’s file relating to this claim.
Claimant’s Work as a Bridge Tensioner
3. Claimant began working for Defendant in June 2001. Defendant manufactures and installs precast concrete products, including bridge beams and planks.
4. Although initially Claimant was hired to do yard and janitorial work, within a few months’ time he began doing bridge tensioning work as well. Bridge tensioning is the process by which the cables that hold a bridge beam in place are installed and tightened. In Claimant’s case, the job entailed being suspended upside down from a harness attached to the bridge deck, pulling the cable through and using a heavy jack to adjust it to the appropriate tension. Each step in the process took two to five minutes of upside down harness work. Depending on the size of the bridge and the number of cables to be installed, Claimant might have to be suspended anywhere from 15 to 70 times in a day.
5. Between 2001 and 2004 Claimant estimated that he worked on 62 bridges. The work was somewhat sporadic; some weeks he might work on three bridges, some weeks none at all. When not assigned to tensioning work, Claimant continued with his regular janitorial duties.
6. Claimant often experienced neck pain while performing his bridge tensioning duties. On one occasion he worked on a job where instead of being suspended upside down in harnesses, the bridge tensioners knelt upright on temporary platforms. Claimant found this position to be much less stressful on his neck. Later he suggested that Defendant consider utilizing similar equipment, but it declined to do so.
Claimant’s Work Injury, Medical Course and Current Condition
7. In mid-September 2004 Claimant was driving home from a bridge tensioning job in Maine when he began to experience neck pain and vertigo. As to the latter condition, Claimant’s medical records document prior episodes of dizziness, with no cause ever ascribed. This time as well, neither specialist evaluations nor diagnostic testing revealed a clear etiology. Eventually the condition resolved on its own.
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8. Claimant had experienced occasional bouts of neck stiffness in the past as well. These episodes had always resolved with little treatment. This time, however, his symptoms, consisting of left-sided neck pain, stiffness, swelling and spasms, continued. Diagnostic testing revealed some degenerative changes in his cervical spine, but no evidence of disc herniation or other neurological compromise. Ultimately, Claimant was diagnosed with a myofascial pain syndrome focused in his left lateral neck.
9. Because Claimant’s neck pain was not radicular in nature, surgery was not an appropriate treatment option. Instead, he treated conservatively, first with physical therapy and later with botulism toxin (botox) injections. None of these treatments was effective at controlling his symptoms.
10. Having derived no benefit from botox injections, in July 2007 Claimant’s treating neurologist, Dr. Orecchio, determined that he had reached an end medical result. On those grounds, the Department approved Defendant’s discontinuance of temporary total disability benefits effective November 20, 2007. In April 2008 Dr. Bucksbaum, a physiastrist, rated Claimant with a 7% whole person permanent impairment referable to his cervical spine.
11. Currently Claimant suffers from extremely limited range of motion in his neck. He holds his left shoulder in an elevated position, as otherwise he experiences painful muscle spasms. Virtually any movement of his neck or left arm exacerbates his pain, as does any sustained posture, including sitting. When his neck is irritated it swells to the point where even swallowing hurts.
12. Claimant has not worked as a bridge tensioner since mid-September 2004. After a period of total disability, in late December 2005 he resumed his janitorial duties for Defendant. While performing these duties, in March 2006 he experienced an acute exacerbation of neck pain, as a result of which he was taken out of work again. Claimant has not returned to work since.
13. In a typical week now, Claimant might take one or two short walks in the meadowlands behind his home, often with a camera, which he uses to photograph wildlife. He is at least somewhat computer literate, and will spend up to 30 minutes at a time on his computer, though not daily. He is restricted physically in this activity by his inability to sit for extended periods of time as well as by his limited ability to use his left hand. He no longer drives, as he cannot turn his head enough to see cars approaching at intersections. Most nights he sleeps in a recliner rather than in bed. Other than extra-strength Tylenol, he does not use any pain control medications.
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Medical Opinions as to Causation
14. Various doctors have given opinions as to the causal relationship, if any, between the bridge tensioning work that Claimant performed for Defendant in the months leading up to September 2004 and his current symptoms. Based on Claimant’s description of his work activities, Dr. Klitzner, his primary care provider, Dr. Orecchio, his neurologist, and Dr. Bucksbaum, a physiatrist, found that such a relationship was likely. All three pointed specifically to the pressure that being suspended upside down from a harness would have put on the left side of Claimant’s neck.
15. With training in both physiatry and biomechanical engineering, Dr. Bucksbaum’s causation opinion is particularly insightful. Biomechanical engineering is the study of how the human body reacts to mechanical forces placed upon it. According to Dr. Bucksbaum, the harness that Claimant used for his bridge tensioning work was not designed with upside down suspension in mind. When used for that purpose, the harness’ straps put significant force on the muscles, ligaments, tendons and supporting soft tissues in his neck. In an upside down position, the weight of Claimant’s head, combined at times with that of a heavy jack, would have supplied a significant amount of pulling force, or traction, to those tissues. First they stretched, and then they tore. As the tissues failed, the cervical spine became distracted, resulting in muscle tightness and nerve irritation. Superimposed on Claimant’s pre-existing degenerative disc disease, over time the damage became permanent and the condition chronic.
16. Defendant’s medical expert, Dr. Glassman, disagreed with this analysis. In his opinion, Claimant’s work activities in September 2004 likely caused a cervical and trapezius strain, but that injury has long since resolved. His current cervical symptoms are the product solely of his pre-existing degenerative disc disease.
17. Dr. Glassman did not address the possibility, as Dr. Bucksbaum did, that the traction forces applied to Claimant’s neck in the course of his bridge tensioning work might have aggravated his underlying disc disease. Nor did he explain the basis for his opinion that Claimant’s work-related cervical strain likely resolved within a matter of weeks, and that almost immediately thereafter his degenerative disease became the primary symptom generator. These gaps in Dr. Glassman’s causation analysis are troubling.
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Claimant’s Current Work Capacity
18. Claimant has undergone two functional capacity evaluations, the first in October 2007 and the second in April 2008. For the most part, the results of both evaluations were consistent. The 2008 evaluation documents a full time capacity for light work, with some abilities extending into the medium range as well, but with the following functional restrictions:
• Maintain neutral neck positions;
• Avoid activities that require sustained cervical and upper extremity postures;
• Limit forward reaching tasks to those that allow the elbows to be maintained within 4 to 6 inches from the body, so as to reduce stress on the cervical spine;
• Limit stooping or overhead activities, and avoid any functional work tasks requiring sustained stooping (cervical stress in a forward flexed position) or cervical extension;
• Avoid driving as a primary job function, due to safety concerns associated with limited cervical mobility; and
• Avoid work activities at elevated surfaces requiring high levels of balance.
19. Both Dr. Orecchio and Dr. Bucksbaum endorsed the 2008 FCE as an accurate reflection of Claimant’s work capacity. Defendant’s expert, Dr. Glassman, generally endorsed the results as well, though he attributed Claimant’s functional restrictions entirely to a combination of his subjective pain complaints and his underlying degenerative disc disease, and not at all to his work injury.
20. Dr. Klitzner questioned the FCE results, particularly as to Claimant’s capacity for sustained sitting, standing or upper extremity use. For example, in the context of the 2008 FCE Claimant demonstrated the ability to sit for more than an hour without a stretch break, while Dr. Klitzner estimated his sitting tolerance as limited to only 15 or 20 minutes before his symptoms became exacerbated.
21. Upon close examination I find that Dr. Klitzner did not repudiate the FCE results entirely. To the contrary, at least with respect to Claimant’s sitting tolerance her opinion comports with them. The FCE acknowledged that the primary limiting factor in that regard was associated with sustained postures, such as prolonged neck positioning with a combination of reaching and functional hand use. Dr. Klitzner’s estimate was presented in the context of the possibility that Claimant might be retrained to work at a desk job in computer-related employment, an activity that presumably would involve some of those same postures. Beyond that, to the extent that Dr. Klitzner’s opinion as to Claimant’s work capacity is still somewhat inconsistent with the 2008 FCE, I find that the FCE more accurately reflects Claimant’s current functional capacity.
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Claimant’s Work History and Vocational Rehabilitation Efforts
22. Claimant has a high school education, but no advanced coursework or training beyond that. Growing up, he worked on his family’s dairy farm. After his father died he purchased the farm from his mother and ran it for some years. Claimant was responsible not just for the physical labor, but also for the associated paperwork – tracking production and breeding schedules, preparing budgets and paying bills, for example.
23. Declining milk prices forced Claimant to sell his farm in 1987. For a time thereafter he worked on a neighboring dairy farm. Later he suffered a knee injury, following which he decided to seek lighter work. From 1995 until 2000 Claimant worked as a groundskeeper at the Swift House Inn in Middlebury. His duties there included both interior work, such as painting and patching walls, and exterior work, such as snow shoveling and plowing in the winter and lawn mowing and garden maintenance in the summer. Claimant left the Inn after a falling out with his supervisor. In 2001 he began working for Defendant.
24. Claimant was found entitled to vocational rehabilitation services in June 2009. His functional limitations precluded him from returning to the type of medium and heavy work he had done before. Hoping to capitalize on Claimant’s prior experience, his vocational rehabilitation counselor, Jay Spiegel, suggested CAD technician, project estimator or welding supervisor as possible alternative employment options.
25. As a first step to determining whether the tentative job goals he had identified were reasonable, Mr. Spiegel proposed that Claimant enroll in a computer class to enhance his skills in that area. When asked to approve the proposal, however, Claimant’s treating physician, Dr. Klitzner declined to do so. Dr. Klitzner did not doubt Claimant’s intellectual ability to perform the type of work for which Mr. Spiegel sought to prepare him. As noted above, however, she did question Claimant’s physical capacity for either computer class work or subsequent employment given the amount of sustained sitting and keyboarding that would be required.
26. Without Dr. Klitzner’s approval, Mr. Spiegel did not feel it appropriate to proceed. With the Department’s consent, in December 2009 vocational rehabilitation services were suspended pending resolution of the factual and legal issues that Dr. Klitzner had raised as to Claimant’s work capacity and employability potential.
Expert Opinions as to Employability
27. Both parties presented expert opinions from certified vocational rehabilitation counselors as to Claimant’s ability to secure and maintain regular gainful employment. According to Claimant’s expert, Gregory LeRoy, he is unemployable. According to Defendant’s expert, Clayton Prinson, he has a work capacity, is employable and should be conducting his own self-directed job search.
(a) Mr. LeRoy’s Analysis
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28. To assist in his analysis of Claimant’s vocational rehabilitation potential, Mr. LeRoy referred him for both psychological and vocational aptitude testing. Dr. Hedgepeth, a clinical and neuropsychologist, conducted the psychological evaluation. He determined that Claimant was of average intelligence, academic ability and learning and memory skills. His evaluation did not reveal any evidence of clinically significant psychopathology or other disabling psychological factors impacting Claimant’s ability to work.
29. To assess Claimant’s vocational aptitude, Mr. LeRoy referred him to Jack Bopp, a vocational evaluator. Through formal testing, Mr. Bopp analyzed Claimant’s aptitudes, interests and transferable skills, and then applied them to various vocational scenarios assuming either a sedentary or a light work capacity. Among his findings:
• There are no sedentary or light occupations (as classified by the U.S. Department of Labor) to which Claimant could transfer his current vocational skills and knowledge.
• There are a limited number of unskilled sedentary or light occupations for which Claimant possesses the worker traits1 generally required for average successful performance and which likely exist in his labor market area. These include such occupations as janitors, security guards, couriers and general office clerks.
• To be employed in these occupations, Claimant would have to be able to manage his pain effectively enough so as to maintain work quantity, quality and attendance standards. He also would require accommodation for his physical limitations.
• Given his age (62 as of Mr. Bopp’s evaluation), years since last in an educational setting (44) and low average verbal comprehension and processing speed abilities, Claimant is a poor candidate for acquiring new marketable skills through classroom retraining.
30. Mr. LeRoy also referred Claimant for a driving evaluation with Miriam Monahan, a certified driver rehabilitation specialist. Ms. Monahan determined that Claimant’s ability to drive safely was limited by both pain and reduced range of motion in his neck and left arm. These issues could be addressed in part with adaptive equipment, such as a steering wheel knob and a wide-angle side view mirror. With these adaptations, Ms. Monahan expected that Claimant would be able to drive within the local Middlebury area, where he currently resides. She recommended that he avoid driving in complex traffic or for more than 20 to 30 minutes at a time.
1 The “worker traits” referred to in Mr. Bopp’s analysis are diverse and extensive. They include physical abilities, such as kneeling, stooping and reaching; intellectual aptitudes, such as for verbal, numerical and spatial reasoning; demonstrated aptitudes for manual dexterity and motor coordination; and temperaments, such as for decision-making, following instructions and performing repetitive work.
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31. Based both on these specialist evaluations and on his own expertise in vocational rehabilitation, Mr. LeRoy concluded that Claimant has no reasonable prospect of securing and sustaining regular gainful employment. His age, education, transferable skills and time out of work, combined with his physical limitations and chronic pain, all present substantial barriers to employment, particularly in skilled occupations. As for unskilled occupations, his need for accommodations such as frequent stretch breaks and his inability to commute beyond his local area would make it difficult for him to compete successfully against a pool of less restricted applicants.
32. Mr. LeRoy acknowledged that there might be specific job openings in the Middlebury area for which Claimant might be hired – jobs in which taking a stretch break would not necessarily impact his productivity, for example. Mr. LeRoy’s opinion is based on probabilities, however. From that perspective, the chances that Claimant will be able to find and keep a suitable job are slight. I find this testimony to be credible.
33. As for whether Claimant’s employment prospects might improve with further vocational rehabilitation services, Mr. LeRoy asserted that this was unlikely. Medically, Claimant’s condition is chronic and therefore the prognosis for further improvement is poor. Vocationally, Claimant’s other employment barriers are unlikely to be overcome even with further assistance. With or without additional vocational rehabilitation services, in Mr. LeRoy’s opinion Claimant is now permanently incapable of securing and maintaining regular gainful work.
(b) Mr. Prinson’s Analysis
34. Mr. Prinson’s analysis of Claimant’s employability focused primarily on return to work alternatives he might consider given his interests, prior work experience and physical capacity. Mr. Prinson identified hardware, pet/pet supplies and nursery sales, automatic film developer, flagger or host as possibilities. Later, after considering the restrictions suggested by the 2008 FCE, Mr. Prinson added to the list such occupations as dairy farm manager, plant care worker, sheet metal worker, machinist, caretaker/overseer and exterminator.
35. Mr. Prinson also conducted a limited review of the Middlebury labor market area to search for currently existing employment opportunities for which he felt Claimant might qualify. Among the job openings being advertised were custodian, wholesale horticultural manager and laundry worker. Mr. Prinson did not contact any employers directly, and therefore had no information as to the specific job qualifications and duties required for any of the jobs he identified.
36. Mr. Prinson acknowledged Claimant’s age, extended period of time out of work and limited driving tolerance as barriers to employment, but also noted his good worker traits, respectable work history and willingness to take on challenging work assignments as positive indicators. Considering both these and the alternative work options he had identified, Mr. Prinson concluded that Claimant has a viable work capacity, is not unemployable and therefore is not permanently and totally disabled. To the contrary, in Mr. Prinson’s opinion Claimant is not even entitled to vocational rehabilitation services, and should be conducting his own self-directed search for suitable employment.
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37. When questioned as to the return to work alternatives that Mr. Prinson had identified, Mr. LeRoy effectively discounted most of them. Many, such as hardware, pet supplies and nursery sales, horticultural manager and laundry worker, are classified as medium physical demand level occupations, and thus would exceed Claimant’s work capacity as measured by the 2008 FCE. Others, such as sheet metal worker, caretaker and exterminator, typically require frequent stooping, forward reaching or sustained non-neutral neck positions, again in violation of the restrictions suggested by the 2008 FCE. Still others, such as automatic film developer and dairy farm manager (assuming no physical labor), likely do not exist in Vermont.
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).
Medical Causation
2. The first disputed issue in this claim is medical causation. Drs. Klitzner, Orecchio and Bucksbaum all concluded that Claimant’s current condition is causally related to his work activities for Defendant. Dr. Glassman concluded that any work-related injury has long since resolved, and that Claimant’s current condition is the result solely of his pre-existing degenerative disc disease.
3. 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).
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4. I conclude here that the evidence provided by Claimant’s experts is more credible than that provided by Dr. Glassman. In reaching this conclusion, I am particularly mindful of Dr. Bucksbaum’s unique qualifications as both a physiatrist and a biomechanical engineer. With this training, he was better positioned than Dr. Glassman was to analyze the likely impact of Claimant’s bridge tensioning work on the muscles, ligaments, tendons and supporting soft tissues in his neck. Dr. Bucksbaum adequately explained how the work-related stress to those structures likely aggravated Claimant’s pre-existing degenerative disease to the point where symptoms that had been at best minor and episodic became chronic and disabling. Dr. Glassman’s analysis fell far short in this regard.
5. I conclude that Claimant has sustained his burden of proving that the neck pain and associated symptoms from which he has suffered continuously since September 17, 2004 are causally related to his work activities for Defendant. In addition to paying indemnity benefits, Defendant is responsible for whatever reasonable and necessary medical treatment he has undergone as a consequence.
Permanent Total Disability
6. The second disputed issue is whether Claimant’s work-related neck injury has rendered him permanently and totally disabled. 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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7. 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.
8. As Professor Larson describes it, the essence of the odd lot test is “the probable dependability with which [the] claimant can sell his or her services in a competitive labor market, undistorted by such factors as business booms, sympathy of a particular employer or friends, temporary good luck or the superhuman efforts of the claimant to rise above crippling handicaps.” 4 Lex K. Larson, Larson’s Workers’ Compensation §83.01 at p. 83-3 (Matthew Bender, Rev. Ed.).
9. I conclude that Mr. LeRoy’s analysis of Claimant’s employability more accurately reflects the fundamental nature of odd lot permanent total disability than Mr. Prinson’s does. Mr. LeRoy focused on the probability that Claimant would be able to compete successfully for jobs within his physical capabilities, and concluded that for him to do so would be highly unlikely. In contrast, Mr. Prinson focused on a few specific jobs for which Claimant conceivably might apply, and disregarded how improbable it would be, given his age, education, limited transferable skills, chronic pain and physical restrictions, for him actually to be hired.
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10. Vermont’s workers’ compensation statute “is remedial in nature and must be liberally construed to provide injured employees with benefits unless the law is clear to the contrary.” Cyr v. McDermott’s, Inc., 2010 VT 19 at ¶7, citing St. Paul Fire & Marine Insurance Co. v. Surdam, 156 Vt. 585, 590 (1991). It would be a harsh result to deny an injured worker’s claim for permanent total disability benefits solely because the possibility exists, however slight, that he or she might someday find a job. The standard required by Rule 11.3100 is what is reasonably to be expected, not what is remotely possible.
11. I conclude that Claimant has sustained his burden of proving that as a result of his work injury he is unable to successfully perform regular, gainful work. This circumstance is unlikely to change even with the provision of further vocational rehabilitation services. Claimant is permanently and totally disabled.
12. Having concluded that Claimant is permanently and totally disabled, the question whether he is entitled to continued vocational rehabilitation services is now moot.
13. 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. Medical benefits covering all reasonable and necessary treatment causally related to Claimant’s compensable neck injury, in accordance with 21 V.S.A. §640;
2. Permanent total disability benefits in accordance with 21 V.S.A. §645, with interest from the date indemnity benefits were last paid as computed in accordance with 21 V.S.A. §664; and
3. Costs and attorney fees in amounts to be determined, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 11th day of October 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.

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

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

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.

Scott Davis v. Wal-Mart (May 16, 2012)

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

Scott Davis v. Wal-Mart (May 16, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Scott Davis Opinion No. 14-12WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Wal-Mart
For: Anne M. Noonan
Commissioner
State File No. Z-52910 OPINION AND ORDER
Hearing held in Montpelier, Vermont on December 13, 2011
Record closed on March 15, 2012
APPEARANCES:
Ronald Fox, Esq., for Claimant
Marion Ferguson, Esq. and Glenn Morgan Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant entitled to permanent total disability benefits as a consequence of his August and September 2007 compensable work injuries?
2. If not, is Claimant entitled to permanent partial disability benefits as a consequence of his August and September 2007 compensable work injuries?
3. Is Claimant entitled to additional medical benefits as a consequence of his August and September 2007 compensable work injuries?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Vocational assessment, May 27, 2011
Claimant’s Exhibit 2: Curriculum vitae, Mark Bucksbaum, M.D.
Claimant’s Exhibit 3: Curriculum vitae, James Parker
Claimant’s Exhibit 4: Curriculum vitae, Louise Lynch
Claimant’s Exhibit 5: Photo of Claimant with deer
Claimant’s Exhibit 6: Correspondence to Dr. Wieneke, February 7, 2008
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Defendant’s Exhibit A: Photo of Claimant with deer
Defendant’s Exhibit B: Correspondence to Claimant, February 25, 2008
Defendant’s Exhibit C: Correspondence to Wendy Madigan, March 5, 2008
Defendant’s Exhibit D: Correspondence to Claimant (undated)
Defendant’s Exhibit E: Curriculum vitae, Kuhrt Wieneke, M.D.
CLAIM:
Permanent total disability benefits pursuant to 21 V.S.A. §644
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 Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant is currently 33 years old. He began working at Defendant’s Bennington, Vermont store as an overnight stocker in 2002. He excelled at his job and over the course of the ensuing five years was regularly promoted – first to inventory control specialist, then to customer service manager, then to sporting goods department manager, and then to assistant manager at Defendant’s Pittsfield, Massachusetts store. Claimant returned to the Bennington area for personal reasons in January 2007, whereupon he resumed his prior position as sporting goods department manager in the Bennington store.
Claimant’s Prior Medical History
4. Claimant stands at 6 feet, 1 inch tall. He has struggled with obesity since elementary school. In high school he weighed 380 pounds. With diet and exercise, he lost some weight thereafter, down to approximately 350 pounds in March 2006, but by September 2007 it had increased again, back up to 385 pounds. In February 2008 he weighed 395 pounds. By February 2010, he weighed 491 pounds. As of September 2011 he weighed more than 500 pounds.
5. Claimant was diagnosed with both diabetes and high blood pressure in 2006. He also suffers from chronic gastroesophageal reflux disease (GERD), edema and peripheral neuropathy.
6. According to the medical records, Claimant has a strong family history of obesity. Both of his parents are obese, as are two of his three siblings. His father, mother and four maternal aunts and uncles suffer from diabetes.
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7. Despite his obesity and related medical issues, as of August and September 2007 Claimant was fully able to work and engage in activities of daily living. He enjoyed hiking, camping, fishing, four-wheeling, going places and reading. He could walk, bend, kneel and squat without limitation.
Claimant’s August and September 2007 Work Injuries
8. In late August 2007 Claimant was assisting a co-employee to retrieve an elliptical machine from a high shelf. The machine, which was boxed, weighed between 80 and 100 pounds. As the co-employee, who was standing on a ladder, handed the box down to Claimant, it slipped from his grasp, dropped 1 or 2 feet and struck Claimant on the left side of his head and neck. Claimant felt a sharp pain in his neck, but shook it off and continued working.
9. Claimant reported the incident to Defendant’s human resources department. He remained at work, but gradually developed pain in his right shoulder, particularly with lifting. Then, on September 3, 2007 he was walking through the store when he tripped over the edge of a pallet and fell backwards onto a mobile staircase. Claimant hit both his neck and lower back on two of the staircase’s stability bars.
10. Claimant lay on the floor for some time, as he was in extreme pain. He screamed for help, but no one heard his cries. Ultimately he managed to get to the employee break room. A co-employee called the assistant manager, and Claimant called his wife, who took him to the hospital emergency department.
Claimant’s Post-Injury Medical Course
11. Initially Claimant treated with Dr. Whittum, an orthopedist. He also consulted with Dr. Hazard, another orthopedist, at Dartmouth Hitchcock Medical Center. Claimant’s symptoms included right shoulder and neck pain and low back pain with numbness extending into his lower extremities. A lumbar MRI study revealed chronic degenerative disc disease at both L4-5 and L5-S1, likely aggravated by more recent trauma and including some nerve root compression as well. A cervical MRI failed to reveal any clear nerve root impingement. Claimant’s shoulder symptoms were attributed either to acute bursitis and/or to a possible rotator cuff tear.
12. Claimant has undergone only limited treatment for his work injuries. He was unable to complete a course of physical therapy due to pain complaints, and could not undergo epidural steroid injections because of his large body mass. Neither the lumbar nor the cervical MRI scans suggested surgery as an appropriate treatment option. At one point Dr. Hazard suggested that Claimant consider pursuing a functional rehabilitation approach, but Defendant refused to authorize an evaluation. From the credible medical evidence, I find that such an approach was unlikely to be successful in any event. See Finding of Fact No. 37, infra.
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13. Numerous independent medical evaluators, including Dr. Wieneke, Dr. McLarney and Dr. Kinley, have commented on the fact that Claimant’s pain complaints are non-verifiable and, for the most part, subjective. In multiple examinations he has exhibited positive Waddell’s signs, including give-away weakness, hypersensitivity, unreliable range of motion and non-physiologic pain radiation. Claimant exhibited some of these signs in the context of two functional capacity evaluations as well, one in October 2008 and another in March 2011. Such signs are indicative of a psychological or non-organic component to his pain, but do not necessarily signify malingering or deception.
14. Currently Claimant manages his pain with narcotic and other medications. He is largely inactive on most days. He reports constant low back pain and fatigue. He rarely leaves his house and spends most of his time alternating between sitting in his recliner and standing. He walks to his mailbox daily, a distance of 20-25 yards; the excursion typically takes him almost 30 minutes to complete. Because he has difficulty focusing, he no longer reads to the extent that he used to, and can only sit at his computer for brief intervals. His sleep is not restorative, and he suffers from sleep apnea. He is severely deconditioned, from both a muscular and a cardiovascular standpoint. He cannot bend over or tie his shoes.
15. The medical evidence establishes that many of Claimant’s current deficits are due primarily to his obesity. His obesity is to blame for the fact that he is severely deconditioned cardiovascularly, for example. In addition, both his difficulty focusing and his fatigue are likely a consequence of his sleep apnea, which is itself a consequence of his obesity.
Claimant’s 2010 Weight Loss Efforts
16. At his primary care provider’s referral, in February 2010 Claimant began treatment in the Albany Medical Center’s Bariatric Surgery & Nutrition program. At the time he weighed 491 pounds, an increase of 106 pounds in the two and a half years since his 2007 work injuries. Claimant’s goal in attending this program was to lose sufficient weight – approximately 50 pounds – to be eligible for weight loss surgery. As reported in the program records, his motivation was “to extend his life and lose weight and hopefully eliminate diabetes and hypertension and possibly to relieve his back pain.”
17. Claimant was monitored in the bariatric program, in terms of both diet and exercise, by a clinical dietician, a bariatric surgeon and a clinical nutritionist. Upon entering the program he reported that despite his chronic low back and neck pain he already was exercising, walking 30 minutes daily four days per week.
18. By the end of April 2010 Claimant had lost 12 pounds. Again, despite his chronic low back and neck pain he was still walking regularly, and had added squats and wall pushups to his exercise regimen as well.
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19. By May 2010 Claimant was reporting “no difficulty” with brisk, 40-minute daily walks. Unfortunately, however, he had gained two pounds in little more than a week, possibly as a result of edema in his ankles. Notwithstanding this setback, Claimant reported that he was still compliant with both his diet and his walking regimen.
20. In early June 2010 Claimant reported that his back pain precluded him from walking more than 40 minutes daily, but that he was able to maintain that amount, with two hills included. His edema had worsened, however, and in the intervening month he had gained an additional five and a half pounds. Claimant was advised to consult with his primary care physician about his blood pressure and edema, but otherwise to continue with his current diet and exercise program.
21. Two days later, Claimant presented to the hospital emergency room complaining of increased edema and burning pain in his right lower leg. The next day he followed up with his primary care physician, who attributed the condition primarily to his weight, and possibly aggravated by a recent salty meal he had eaten.
22. By mid-July 2010 Claimant was reporting to his primary care physician that his lower extremity edema had worsened to the point that he could not even walk up a flight of stairs. The following week he reported to his bariatric program nutritionist that he had been rendered sedentary because of the condition. Claimant had gained another five and a half pounds since June, and now weighed 493 pounds, two pounds more than when he had entered the program in February. As Claimant consistently had reported that he was vigilant with his diet throughout this period, it seems likely that his weight gain was largely attributable either to his edema itself and/or to his inability to exercise as a result.
23. Claimant did not schedule his planned follow-up appointments, and did not participate further in the bariatric program after mid-July 2010. Although the record is somewhat unclear as to exactly why he dropped out, I find that it was in no way connected to his work-related injuries.
24. With a change in medications, by October 2010 Claimant’s edema had improved. He did not resume his exercise regimen, however. By the time of his March 2011 functional capacity evaluation he became extremely short of breath after walking just 150 feet, and needed three rest breaks in a span of three minutes to do so. There having been no reported change in his chronic low back pain during the intervening months, I find that this reduced capacity likely was not due to any worsening of his work-related injuries.
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Medical Opinions as to the Extent of Claimant’s Permanent Partial Impairment
25. Drs. McLarney, Kinley, Bucksbaum and Wieneke all have rendered permanent impairment ratings relative to Claimant’s work-related neck, shoulder and lower back injuries. Drs. McLarney and Bucksbaum were retained by Claimant to do so; Drs. Kinley and Wieneke did so on Defendant’s behalf.
(a) Dr. McLarney
26. Dr. McLarney is an orthopedic surgeon. She conducted an independent medical evaluation of Claimant, at his attorney’s request, in April 2009.
27. Dr. McLarney diagnosed Claimant with the following conditions attributable to his work-related injuries:
• Right upper extremity cervical radiculopathy, without identifiable cause on MRI;
• Right shoulder weakness consistent with either rotator cuff tendinopathy or tear; and
• Chronic low back pain with L4 radiculopathy.
28. With reference to the AMA Guides to the Evaluation of Permanent Impairment (5th ed.), Dr. McLarney assessed the following permanent impairment ratings attributable to these injuries:
• An 8 percent whole person impairment attributable to Claimant’s cervical spine, based on non-verifiable radicular complaints without objective findings (DRE cervical category II);
• A 12 percent whole person impairment attributable to range of motion deficits in Claimant’s right shoulder; and
• An 8 percent whole person impairment attributable to Claimant’s lumbar spine, based on asymmetric loss of range of motion and non-verifiable radicular complaints (DRE lumbar category II).
29. Dr. McLarney failed to specify whether she complied with the protocol mandated by the AMA Guides for consistently and reliably measuring a patient’s range of motion. Nor did she combine her ratings to achieve a final whole person impairment, as is also required by the Guides.1 For these reasons, I find her analysis to be incomplete.
1 Under Vermont law, the basis for calculating permanency benefits differs with respect to injuries referable to the spine as opposed to those referable to other body parts. 21 V.S.A. §§648(a) and (c); Workers’ Compensation Rule 11.2000. As to Dr. McLarney’s rating, therefore, only the cervical and lumbar spine ratings should have been combined as required by the AMA Guides; the right shoulder rating would then be added in separately. Workers’ Compensation Rule 11.2220.
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30. Barring Claimant’s possible participation in a multidisciplinary pain clinic, Dr. McLarney determined that he had reached an end medical result as of the date of her evaluation, April 9, 2009.
(b) Dr. Kinley
31. Dr. Kinley, an orthopedic surgeon, evaluated Claimant at Defendant’s request in July 2009.
32. Dr. Kinley diagnosed Claimant with a cervical strain causally related to his work injuries, for which he found no ratable impairment. Nor did he rate any impairment for the right shoulder, as he concluded that Claimant’s range of motion testing was completely subjective and therefore unreliable.
33. Dr. Kinley did find some permanent impairment referable to Claimant’s lumbar spine, but his 9 percent whole person rating was calculated according to the 6th edition of the AMA Guides rather than the 5th edition, as is required by Vermont law, 21 V.S.A. §648(b). For that reason, I cannot consider it.
(c) Dr. Bucksbaum
34. At Claimant’s request, Dr. Bucksbaum conducted an independent medical examination in April 2011. Dr. Bucksbaum is board certified in physical and rehabilitative medicine.
35. Dr. Bucksbaum rated the permanency attributable to Claimant’s work-related injuries as follows:
• A 5 percent whole person impairment attributable to Claimant’s chronic cervical sprain/strain (DRE cervical category II);
• An 8 percent whole person impairment attributable to Claimant’s chronic right rotator cuff injury with residual loss in range of motion; and
• An 8 percent whole person impairment attributable to Claimant’s chronic mechanical low back pain (DRE lumbar category II).
36. Using the AMA Guides’ combined values chart, Dr. Bucksbaum determined that the total whole person impairment referable to Claimant’s work-related injuries was 19 percent.2
37. Dr. Bucksbaum specifically noted in his report that his range of motion measurements were calculated in compliance with the Guides’ protocol. For that reason, although their analyses were quite similar I find that Dr. Bucksbaum’s impairment rating is more reliable, and therefore more persuasive, than Dr. McLarney’s.
2 As noted in footnote 1 supra, though consistent with the AMA Guides’ protocol, in order to comply with Vermont law Dr. Bucksbaum should not have combined all three impairments to arrive at a final rating, but rather only the two attributable to the spine.
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38. Dr. Bucksbaum determined that Claimant had reached an end medical result for his work-related injuries by the date of his evaluation, April 20, 2011. He did recommend that Claimant pursue bariatric surgery options and also that he maintain a home exercise program, but these recommendations were directed at prolonging Claimant’s life, not at treating his work injuries. Dr. Bucksbaum expressed doubt that the type of multidisciplinary functional restoration program first suggested by Dr. Hazard in 2007 and later reiterated by Dr. McLarney would be effective at increasing Claimant’s work capacity or otherwise improving his condition. I find his reasoning in this regard credible.
(d) Dr. Wieneke
39. At Defendant’s request, Dr. Wieneke conducted an independent medical examination for the purposes of rating Claimant’s permanent impairment in September 2011.3 Dr. Wieneke is a board certified orthopedic surgeon.
40. Dr. Wieneke diagnosed Claimant with chronic neck and right shoulder girdle pain and low back pain. Having observed no positive findings either on clinical examination or on diagnostic studies, Dr. Wieneke found no ratable impairment to Claimant’s cervical spine. Nor did he rate any impairment to Claimant’s right shoulder. As for Claimant’s lower back, Dr. Wieneke rated a 5 percent whole person impairment based on non-verifiable radicular pain (DRE lumbar category II).
41. Dr. Wieneke admitted in his deposition testimony that he did not use the protocol mandated by the AMA Guides for measuring the extent of any range of motion deficits, as Dr. Bucksbaum did. For that reason, I find his impairment rating to be less reliable.
Medical Opinions as to Work Capacity and Permanent Total Disability
42. Claimant has not worked since his September 3, 2007 injury. Initially his treating providers disabled him from working, and Defendant paid temporary total disability benefits accordingly.
(a) Discontinuance of Temporary Disability and Medical Benefits
43. At Defendant’s request, in early February 2008 Claimant underwent an independent medical examination with Dr. Wieneke. In the context of this evaluation Dr. Wieneke recommended that Claimant undergo further diagnostic studies to rule out cervical radiculopathy. If the results were negative, Dr. Wieneke stated that Claimant would be able to return to work, first as a greeter and then at his regular job.
3 Claimant underwent a prior independent medical examination with Dr. Wieneke, also at Defendant’s request, in February 2008. See Finding of Fact No. 43, infra.
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44. Shortly after making this recommendation, in mid-February 2008 Dr. Wieneke was presented with a photograph that purported to show Claimant exhibiting a deer he had killed during the October 2007 bow hunting season. Upon viewing the photo, Dr. Wieneke revised his opinion as to work capacity. If Claimant was capable of the type of physical activity required to successfully hunt a deer, Dr. Wieneke reasoned, then he was capable of returning to work full-time, at least as a greeter and probably at his regular job as well.
45. In fact, Claimant did not hunt or kill the deer depicted in the photograph. According to his testimony, which I find credible, an acquaintance had shot the deer, but because he lacked the proper license, or “tag” for it, he asked Claimant to use his tag instead. Even though this was an illegal use of Claimant’s tag, he agreed to do so. He thus accompanied the friend to the weigh station and was photographed with the tagged deer.
46. Notwithstanding this explanation of events, and based instead on Dr. Wieneke’s revised work capacity opinion, on February 25, 2008 Defendant wrote to offer Claimant light duty work as a greeter. Claimant did not respond. Thereafter, Defendant filed a Notice of Intent to Discontinue Payments (Form 27), in which it sought to terminate Claimant’s temporary total disability benefits effective March 6, 2008 on the grounds that he had refused a suitable offer of modified duty work. The Department rejected the discontinuance. Having found that Dr. Wieneke’s revised opinion was based on a faulty premise, that is, that Claimant had shown himself to be capable of hunting when in fact he was not, I find that it was proper for the Department to do so.
47. Following a medical records review by Dr. Rosati, an occupational medicine specialist, in November 2008 Defendant again sought to terminate Claimant’s temporary total disability benefits on the grounds that he was capable of returning to modified duty work as a greeter and had failed to do so when requested. Defendant also sought to discontinue Claimant’s narcotic pain medications, based on Dr. Rosati’s assessment that these constituted inappropriate treatment for complaints that were unconfirmed by MRI studies. This time the Department approved the discontinuance, effective November 27, 2008.
48. Claimant’s new primary care provider, Mark Schiffner, a physician’s assistant, disagreed with Dr. Rosati’s assessment as to Claimant’s modified duty work capacity. Mr. Schiffner had only recently assumed Claimant’s care, and had not yet reviewed his medical history. Nevertheless, he recommended that Claimant remain out of work “until further notice.” Mr. Schiffner failed to specify the rationale behind his recommendation, and therefore I find it to be relatively unpersuasive. Instead, based on Dr. Rosati’s records review I find that Claimant’s temporary total disability benefits were appropriately terminated in November 2008.
49. I find that Dr. Rosati’s records review did not provide sufficient support for Defendant to have discontinued Claimant’s narcotic pain medications, however. Dr. Bucksbaum has recommended that so long as Claimant continues to be monitored with periodic urine toxicology and appropriate laboratory studies, his prescribed medications constitute reasonable and appropriate treatment. I find this reasoning persuasive.
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(b) Functional Capacity Evaluations
50. Claimant has undergone two functional capacity evaluations – the first in October 2008 with Robb Wright, an occupational therapist, and the second in March 2011 with Louise Lynch, a physical therapist.
51. Claimant’s performance on the October 2008 functional capacity evaluation was striking for its unreliable results. According to Mr. Wright, Claimant demonstrated subjective limitations that were incongruous and out of proportion to his presenting musculoskeletal challenges. His pain sense and perception of disability were maladaptive. Perhaps most disturbing, to Mr. Wright’s observation Claimant made no effort to adapt, compensate or explore ways in which to enhance his ability or tolerance. To the contrary, he consistently self-limited and on at least one test appeared actively to under-represent his ability level.
52. In light of Claimant’s unreliable effort in testing, Mr. Wright felt unable to fully understand or appreciate the extent of his low back and right shoulder complaints. Nor was he able to delineate those complaints from the ones attributable to Claimant’s gross obesity, poor conditioning and cardiovascular challenge. Thus, although Mr. Wright categorized Claimant’s work capacity as “none/undetermined to sedentary,” he emphasized that this was intended only as a description of Claimant’s performance, not as an accurate determination of his functional capacities. I concur.
53. Claimant was determined to have a less than sedentary work capacity following Ms. Lynch’s March 2011 functional capacity evaluation as well, but this time his performance was not deemed nearly as unreliable as it had been with the earlier testing. Ms. Lynch observed that Claimant was willing to attempt all activities, but needed verbal cues and encouragement to exhibit full effort. Without implying any bad motive or intent, Ms. Lynch concluded from this that Claimant likely was capable at times of doing more physically than he demonstrated. I find her conclusion in this regard to be credible.
54. Claimant’s activity level, both as he reported it and as demonstrated during Ms. Lynch’s testing, was markedly less than what he had been able to achieve and maintain a year earlier, when he was engaged in the Albany Medical Center bariatric program. He was extremely short of breath and sweaty, even when sitting, and severely limited in walking. His endurance level and cardiovascular conditioning were poor as well.
55. Ms. Lynch concluded that Claimant’s functional limitations precluded even sedentary work. She attributed these deficits to Claimant’s work injuries, stating that they “[have] led to significant cardiovascular and muscular deconditioning and weight gain that make most daily functional activities difficult.” Notably, I cannot discern from the record whether in reaching this conclusion Ms. Lynch was aware of Claimant’s exercise tolerance while in the Albany Medical Center bariatric program. Given that it was Claimant’s edema, a condition related solely to his other medical issues and not at all to his work injuries, that caused him to curtail his activities while in that program, I must question her conclusion that the latter are to blame for his current limitations.
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(c) Claimant’s Vocational Rehabilitation Prospects
56. In the opinion of his vocational rehabilitation expert, James Parker, the multiple disabilities and related functional limitations from which Claimant suffers have effectively disabled him from regular gainful employment in any well known branch of the labor market.
57. Mr. Parker based his assessment of Claimant’s vocational prospects in large part on the results of Ms. Lynch’s March 2011 functional capacity evaluation. I do not discern from Mr. Parker’s analysis any consideration of the extent to which Claimant may have self-limited his activity level in that testing, as even Ms. Lynch observed. Mr. Parker acknowledged, furthermore, that chronic pain, which Claimant identified as his most significant limiting factor, is difficult to quantify. Nevertheless, I find that there is sufficient objective evidence in Ms. Lynch’s evaluation, including notations as to Claimant’s heart rate, sweaty skin and shortness of breath, to justify Mr. Parker’s reliance on that report. Certainly, to the extent that Claimant’s severe deconditioning, fatigue and endurance levels impact his ability to sustain work activities, I accept that these pose significant, and likely insurmountable, vocational barriers.
(d) Permanent Total Disability
58. In the context of his April 2011 independent medical examination, Dr. Bucksbaum concluded, to a reasonable degree of medical certainty, that Claimant’s neck, right shoulder and low back injuries were causally related to his August and September 2007 accidents at work. Based both on Ms. Lynch’s determination that Claimant is unable to work at even a sedentary level, and on his own determination that Claimant has reached an end medical result for his work-related injuries, Dr. Bucksbaum further concluded that Claimant is now permanently and totally disabled. I find that these conclusions are adequately supported by the credible evidence.
59. As to the causal relationship between Claimant’s work injuries and his permanent inability to work, Dr. Bucksbaum’s opinion is somewhat less clear. Dr. Bucksbaum attributes only 65 pounds (approximately one-half) of Claimant’s post-injury weight gain to inactivity; the rest, in his opinion, is a consequence of Claimant’s dietary habits. Dr. Bucksbaum did not state any opinion as to whether Claimant would have been permanently and totally disabled had his weight gain been limited only to that attributable to his work injuries and not also to his food intake. I find this gap in his reasoning troublesome.
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60. Equally troublesome is Dr. Bucksbaum’s failure to address the increased activity level that Claimant demonstrated while enrolled in the Albany Medical Center bariatric program in 2010. Given his own training in nutrition and weight loss, which includes membership in the American Society of Bariatric Physicians, I would have expected Dr. Bucksbaum to scrutinize closely the reasons behind Claimant’s failed weight loss attempt in that program. More importantly, I would have expected Dr. Bucksbaum to explain why either the chronic pain and/or the weight gain attributable to Claimant’s 2007 work injuries would be causing such an extreme degree of inactivity now when they did not do so in 2010. Again, the fact that Dr. Bucksbaum did not address these issues renders his opinion as to the causal connection between Claimant’s work injuries and his permanent total disability less persuasive.
Claimant’s Credibility
61. Defendant cited to various incidents in Claimant’s past that it alleges indicate a pattern of dishonesty serious enough to call his credibility into question. These include:
• The incident referred to above, Finding of Fact No. 45 supra, in which Claimant allowed his own deer tag to be used to weigh in and register his friend’s kill, even though he knew it was illegal to do so;
• Claimant’s acceptance of wages paid “under the table” by a former employer; and
• Claimant’s use of a separate address (the basement of his parent’s home) as a means of qualifying for food stamps and fuel assistance even though he did not actually live there.
62. I agree with Defendant that these instances of questionable conduct demonstrate a disturbing tendency on Claimant’s part either to mislead authorities and/or to flaunt the law for financial gain. I also agree that these events provide good cause for me to examine closely Claimant’s assertions as to his chronic pain and inability to function. I will not go so far, however, as to conclude that he is purposely exaggerating his pain complaints or intentionally faking his disability.
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).
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2. In addition to establishing the connection between a claimant’s injury and his or her employment, another prerequisite to any workers’ compensation award is proof of a causal nexus between the injury and the specific benefits claimed. This applies to both medical and indemnity benefits. See, e.g., Mujic v. Vermont Teddy Bear Factory, Opinion No. 04-12WC (February 7, 2012); Pitaniello v. GE Transportation, Opinion No. 03-08WC (January 17, 2008).
Permanent Total Disability
3. Claimant’s claim for permanent total disability benefits is based on his assertion that the chronic pain and inactivity attributable to his work injuries combined with his preexisting obesity to cause him to become totally incapacitated from ever maintaining regular gainful employment. Should the medical evidence establish, to the required degree of medical certainty, that the work injuries did in fact aggravate, accelerate or otherwise contribute to cause Claimant’s ultimate disability, then he will have laid the appropriate foundation for this claim. Jackson v. True Temper Corp., 151 Vt. 592 (1989).
4. Claimant points to Dr. Bucksbaum’s opinion to establish the required connection. Dr. Bucksbaum did conclude, to a reasonable degree of medical certainty, that Claimant’s inactivity from September 2007 forward likely caused him to gain approximately 65 pounds. I have no reason to doubt this conclusion.
5. What I do doubt, however, is Dr. Bucksbaum’s conclusion that Claimant’s inactivity, and therefore 65 pounds of his weight gain, was attributable to his work injuries. To my mind, Claimant’s ability to maintain a significantly higher activity level while enrolled in the Albany Medical Center bariatric program – taking brisk, 40-minute daily walks, for example – effectively undercuts any such conclusion. That this occurred in early 2010, more than two and a half years after the work injuries and by which point Claimant already had gained 106 pounds, means that notwithstanding any injury-related sequelae he was capable of walking, standing, squatting and moving about to a far greater extent than he is now. There being no evidence that Claimant’s work-related injuries have worsened since 2010, I can only attribute the dramatically increased functional limitations he now exhibits to other, non-injury-related factors.
6. Similarly, I find significant the fact that, after his initial success in the bariatric center program, Claimant’s weight loss efforts were derailed not by any work injury-related complications or consequences, but rather by a serious bout of edema. Again, I conclude from this that Claimant’s work injuries were not a factor in his subsequent decline.
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7. I acknowledge that aside from Defendant’s assertion that Claimant may have been exaggerating his subjective pain complaints, the evidence as to his current functional limitations and vocational rehabilitation potential was largely undisputed. The most significant of these limitations, however, and the ones that impact most upon his vocational potential, relate to Claimant’s limited endurance, severe deconditioning and fatigue levels, deficits that I cannot attribute to his work injuries. Thus, while I reasonably can conclude that Claimant likely is permanently and totally disabled, I cannot conclude that this disability was caused, aggravated or accelerated by his compensable work injuries. For that reason, his claim for permanent total disability benefits must fail.
Permanent Partial Disability
8. Conflicting medical evidence was submitted as to the extent of Claimant’s permanent partial disability. 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).
9. With particular reliance on the third factor, I conclude that Dr. Bucksbaum’s permanency opinion is the most credible. Dr. Bucksbaum demonstrated the greatest familiarity with the AMA Guides and scrupulously documented his adherence to the appropriate impairment rating protocol. For that reason, his ratings are both more reliable and more persuasive than those of Drs. McLarney, Kinley or Wieneke.
10. I conclude, therefore, that as a result of his work-related injuries Claimant has sustained a 5 percent whole person permanent impairment referable to his cervical spine, an 8 percent whole person impairment referable to his lumbar spine and an 8 percent whole person impairment referable to his right shoulder.
11. I must disregard Dr. Bucksbaum’s 19 percent total combined whole person impairment rating, however, as his methodology does not comply with the requirements of 21 V.S.A. §648 and Workers’ Compensation Rule 11.2220. Taking judicial notice of the AMA Guides’ combined values chart (5th ed., p. 604), I conclude that Claimant is entitled to permanent partial disability benefits in accordance with a 13 percent whole person permanent impairment referable to his spine and an 8 percent whole person permanent impairment referable to his right shoulder.
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12. The permanency benefits so awarded constitute lump sum compensation for a permanent impairment that will affect Claimant for the rest of his life. Calculated from the date of the formal hearing, at which point he was 33 years old, according to National Vital Statistics Reports, Vol. 54, No. 14 (April 19, 2006) Claimant’s remaining life expectancy is 47 years, or 564 months. Claimant may submit a request to prorate the amounts awarded for his permanent disability in accordance with 21 V.S.A. §652.
13. Claimant has submitted a request for reimbursement of costs totaling $8,670.13 and attorney fees totaling $17,636.50.4 As Claimant has prevailed only on his claim for permanent partial disability benefits, he is entitled to an award of only 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).
14. I conclude that the costs billed for Ms. Lynch’s and Mr. Parker’s services, totaling $3,935.00, related solely to Claimant’s claim for permanent total disability benefits. As he failed to prevail on this claim, these costs are disallowed. The remaining costs, totaling $4,735.13, are hereby awarded.
15. 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. Here, Claimant prevailed only on his claim for permanent partial disability benefits, the value of which is significantly less than his unsuccessful permanent total disability claim. With that in mind, I conclude that it is appropriate to award him 30 percent of his requested fees, or $5,290.95.
4 Claimant’s fee request details 27.6 hours billed prior to June 15, 2010, for which the maximum reimbursement rate according to Workers’ Compensation Rule 10 was $90.00 per hour, and 104.5 hours billed thereafter, for which the reimbursement rate is $145.00 per hour.
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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 as compensation for a 13 percent whole person impairment referable to the spine, a total of 71.5 weeks, and an 8 percent whole person impairment referable to the shoulder, a total of 32.4 weeks, in accordance with 21 V.S.A. §648 and Workers’ Compensation Rule 11.2220;
2. Interest on the above calculated from the date when temporary total disability benefits terminated (November 27, 2008), in accordance with 21 V.S.A. §664;
3. Medical benefits for ongoing treatment of Claimant’s compensable injuries, including coverage for prescription pain medications, in accordance with 21 V.S.A. §640; and
4. Costs totaling $4,735.13 and attorney fees totaling $5,290.95, in accordance with 21 V.S.A. §675.
DATED at Montpelier, Vermont this 16th day of May 2012.
_______________________
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.

Fadil Kuljancic v. Wal-Mart (November 28, 2012)

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

Fadil Kuljancic v. Wal-Mart (November 28, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Fadil Kuljancic Opinion No. 28-12WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Wal-Mart
For: Anne M. Noonan
Commissioner
State File No. X-57053 OPINION AND ORDER
Hearing held in Montpelier, Vermont on July 31 and August 1, 2012
Record closed on September 21, 2012
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Marion Ferguson, Esq. and Glenn Morgan Esq., for Defendant
ISSUE:
Is Claimant permanently and totally disabled as a result of his January 2006 compensable work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Functional capacity evaluation, April 2011
Joint Exhibit III: Functional capacity evaluation, September 2008
Joint Exhibit IV: Additional medical records
Defendant’s Exhibit A: Curriculum vitae, George White, M.D.
Defendant’s Exhibit B: Photo of Claimant on gym equipment
Defendant’s Exhibit C: Photo of Claimant on gym equipment
Defendant’s Exhibit D: Photo of Claimant on gym equipment
Defendant’s Exhibit E: Photo of Claimant on gym equipment
Defendant’s Exhibit F: Tammy Parker’s vocational rehabilitation file
Defendant’s Exhibit G: Deposition of Claimant, July 17, 2012
Defendant’s Exhibit H: Dr. White report, April 2010
CLAIM:
Permanent total disability benefits pursuant to 21 V.S.A. §644
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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 is a 43-year-old immigrant from Bosnia. He and his family came to the United States in 1999. They initially settled in Idaho where other family members lived. Later they moved to Vermont, where Claimant obtained a job with Defendant as a shelf stocker.
4. Claimant does not speak English very well, and cannot read or write it at all. He was assisted by an interpreter at the formal hearing.
5. In January 2006, while working his normal shift, Claimant attempted to move a table loaded with books. He started to pick up the table with no success, so instead he tried to slide it out of the way. As he did so, he heard a crack in his back and immediately felt pain. Defendant accepted this injury as compensable and paid workers’ compensation benefits accordingly.
Claimant’s Course of Treatment
6. Claimant was diagnosed with lower back pain with radiculopathy and was initially referred to physical therapy. His doctors feared re-injury, so Defendant accommodated his work restrictions and assigned him to a sedentary job. At the same time, Claimant was referred to a work hardening program. He successfully completed the program in June 2006 and was released to return to work full time with no restrictions.
7. Over the course of the next several months, Claimant’s back pain worsened. He underwent a lumbar epidural steroid injection in April 2007, following which he enjoyed complete pain relief for two to three months. A second injection in July 2007 did not result in any pain relief at all, however. Due to his unremitting pain, Claimant could not return to work in August 2007. He has been out of work ever since.
8. In September 2007 Claimant underwent a right L5-S1 minimally invasive microdiscectomy. Within days of that surgery, he experienced increasing pain in his right buttock that radiated down his right leg. Imaging studies revealed a possible disc herniation or accumulation of blood, so Claimant underwent a second surgery in October 2007. That procedure went well and disc fragments were removed.
9. Thereafter, Claimant underwent additional steroid injections to try to control his pain, but these provided no sustained relief. A March 2008 electromyogram revealed mild chronic S1 radiculopathy. Claimant’s treatment team did not believe he was a candidate for any additional surgery.
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10. More steroid injections were tried, to no avail. Claimant became frustrated with this course of treatment and declined to pursue it further. His physicians recommended physical therapy, but he elected to do his own home exercise program instead.
11. Having failed conservative treatment, in October 2009 Claimant underwent a spinal cord stimulator trial. Both this trial and a subsequent one in 2010 were unsuccessful. Since the second trial, Claimant’s medical treatment has consisted solely of pharmacological pain management.
Claimant’s Psychiatric History
12. As treatments were tried and failed, Claimant became increasingly depressed about his chronic pain. In March 2008 Ms. Mikula, a nurse practitioner and Claimant’s primary care provider, recommended counseling with a pain group. This suggestion was ultimately abandoned, as Claimant had difficulty communicating in English. Ms. Mikula also recommended that Claimant take an antidepressant, but at that time he declined to do so.
13. Throughout 2009, Claimant reported that his chronic pain was getting much worse. As a consequence, his depression and anxiety deepened. By mid-2009 he was seeing a therapist for counseling and a psychiatrist for medication management.
14. Claimant’s depression worsened in November 2009, after his first spinal cord stimulator trial proved unsuccessful. He became despondent and felt hopeless due to his pain level, his incapacitation and his inability to work. In mid-November he became suicidal, and his psychiatrist admitted him for in-patient psychiatric treatment. Claimant was released one week later. He has been taking both anti-depressants and anti-anxiety medications since that time. He also has continued to participate actively in psychological counseling.
Expert Medical Opinions
(a) Ms. Mikula
15. Ms. Mikula is a nurse practitioner specializing in family health. She has been Claimant’s primary care provider since 2006. She is treating him for chronic low back pain with right lower extremity radiculopathy as well as depression and anxiety. She sees him on a regular basis.
16. Ms. Mikula credibly testified that Claimant’s symptoms have waxed and waned over the six years she has treated him, but that this is normal for his condition. She also indicated that Claimant suffers from significant pain, ranging from six to ten on an analog scale. She does not question his reports of pain.
17. Ms. Mikula’s treatment of Claimant currently consists of pain management through narcotic medications. A drug taper program was attempted once, but Claimant could not tolerate his pain and had to lie down all the time.
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18. Ms. Mikula acknowledged that she is not qualified to assess Claimant’s employability. However, she credibly opined that he faces significant obstacles to re-employment as a result of his physical and psychological limitations. These include:
• His need to change positions every ten minutes, including having to lie down;
• His ongoing depression, which impairs both his ability to concentrate and his motivation level;
• His variable mental status; and
• His inability to sleep through the night, which impairs his ability to be rested and happy.
(b) Dr. White
21. Dr. White is board certified in preventative and occupational medicine. At Defendant’s request he performed an independent medical evaluation of Claimant in April 2010. Dr. White diagnosed Claimant with chronic low back pain with right lower extremity radiculopathy.
22. Dr. White acknowledged that while he physically examined Claimant, his purpose in doing so was to arrive at or support a diagnosis, not to measure his physical capacity. In that respect, he conceded that a formal functional capacity evaluation was likely to be more comprehensive than his physical examination.
23. In Dr. White’s opinion, Claimant is capable of returning to light duty work, so long as he is restricted from repetitive bending, lifts no more than twenty pounds and is able to move about and change positions frequently. He also believes that Claimant should be tapered from his narcotic medications, as they lead to tolerance and studies have shown that over time patients do well without them. However, he did concede that with some patients, long term narcotics do control pain well. Dr. White did not address Claimant’s psychological condition.
24. Dr. White placed Claimant at end medical result as of the date of his evaluation, April 1, 2010, and assessed him with a 13 percent whole person permanent impairment referable to his work injury. With that opinion as support, the Department approved Defendant’s discontinuance of temporary disability benefits effective April 30, 2010.
Claimant’s Current Work Capacity
25. Claimant has undergone two functional capacity evaluations, the first in September 2008 performed by Erica Galipeau and the second in April 2011 by Charles Alexander. Both Ms. Galipeau and Mr. Alexander work for Injury and Health Management Solutions.
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26. In 2008, Ms. Galipeau reported that Claimant demonstrated some abilities within the light range for a three-hour shift. However, full light capacity was not achieved. Based on her observations, she concluded that Claimant’s subjective reports of pain were not corroborated by the objective physiological changes attributable to exertion. In Ms. Galipeau’s opinion, Claimant did not give full effort during the evaluation, and was capable physically of performing more tasks than those in which he engaged.
27. More recently, in 2011 Mr. Alexander concluded that Claimant had no work capacity at all. His lack of lower extremity strength, limited range of motion and back pain precluded him from lifting any weight from floor to waist, which disqualified him from anything other than a sedentary capacity. At the same time, during testing Claimant could not sit for more than 28 minutes before having to shift position, which does not meet the standard even for a sedentary work capacity.
28. As to the reliability and accuracy of his evaluation, Mr. Alexander credibly concluded that Claimant demonstrated full effort during his testing. He did exhibit signs of physical discomfort, such as shifting in his chair, grimacing and asking to stand rather than sit. Nevertheless, while his subjective reports of pain seemed high, they were consistent with Mr. Alexander’s distraction-based objective findings.
29. After viewing photographs of Claimant purportedly using exercise equipment in a health club in 2010, Mr. Alexander’s conclusions remained unchanged. The photographs were taken by Claimant’s wife. Claimant was not dressed in work-out clothes, did not appear to be exerting any energy and was not engaging in any physical movements that were inconsistent with his reported limitations. In Mr. Alexander’s opinion, the photographs appear to have been posed. I agree with this assessment.
30. Based on his evaluation, Mr. Alexander concluded that Claimant was not capable of regular employment. His functional capacity was limited to sedentary work for only two to three hours per day, with no material handling below waist level and with the need to change position every ten to twenty minutes. I find both Mr. Alexander’s observations and his conclusion persuasive.
31. Because it is more recent, I conclude that Mr. Alexander’s evaluation is the most compelling. I therefore find that Claimant’s current functional abilities, which are limited to a maximum of two to three hours of sedentary work per day, with additional restrictions against lifting and frequent sitting, do not qualify him for even sedentary work.
Claimant’s Work History
32. Claimant received a high school education in Bosnia, but was uncertain whether that was equivalent to a high school education in this country. He received no additional training or course work. In Bosnia, he worked on his family farm and then entered the Bosnian army, where he learned to be a baker.
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33. After leaving the army, from 1989 to 1997 Claimant continued to work as a baker. This was a heavy capacity job. He lifted 100 pound bags of flour frequently and stood for long periods of time mixing and switching dough in a hot kitchen.
34. In 1999, Claimant moved with his family to Idaho, where he obtained work at Wal-Mart as a shelf stocker/custodian. After a year there, Claimant and his family moved to Vermont. He first secured work as a sandblaster, which again was a heavy capacity job. Thereafter he obtained a job at Wal-Mart as a shelf-stocker/custodian on the third shift. This was a full time, physically demanding job. Claimant enjoyed his work and often volunteered for overtime.
Expert Opinions as to Employability
35. Both parties presented opinions from certified vocational rehabilitation counselors as to Claimant’s ability to secure and maintain regular gainful employment. According to Claimant’s expert, Tammy Parker, he is not capable of regular gainful employment. According to Defendant’s expert, John May, he will be capable of regular gainful employment if he continues with vocational rehabilitation services.
(a) Ms. Parker’s Analysis
36. Ms. Parker first met with Claimant in November 2007, when he was determined eligible for vocational rehabilitation services. No services were initiated until they met again in July 2011, however, when Claimant finally exhausted all recommended courses of medical treatment. To develop a return to work plan, Ms. Parker interviewed Claimant, reviewed his medical records and functional capacity evaluations and conducted an employment survey with Claimant’s physical capabilities in mind.
37. Following the hierarchy of vocational options mandated by Vermont’s Workers’ Compensation Rule 55.2000, Ms. Parker first determined that Claimant would not be able to return to work for Defendant in either the same or a modified capacity. Given his relatively high average weekly wage (a consequence of both his third-shift pay differential and his overtime hours), Ms. Parker also determined that he would be unlikely to secure similar work for a different employer.
38. Ms. Parker followed up with Claimant’s English teacher to track his progress, and also performed labor market surveys to ascertain what vocational options might be available to him. She discovered that there “was not a lot out there” for a person with Claimant’s vocational profile – someone with limited education and transferable skills, poor command of English, significant physical restrictions and a demonstrated capacity for only very part-time and restricted sedentary work. She thus concluded that Claimant was not capable of engaging in regular gainful employment. I find this analysis compelling and persuasive in all respects.
(b) Mr. May’s Analysis
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39. At Defendant’s request, Mr. May reviewed Claimant’s two functional capacity evaluations and Dr. White’s independent medical evaluation to assess whether Claimant was capable of regular gainful employment. Mr. May did not review Claimant’s rather lengthy medical records, nor did he personally interview Claimant.
40. In Mr. May’s opinion, if Claimant continued to pursue vocational rehabilitation services, especially English classes and weekly psychological counseling, he would become capable of regular gainful employment. In addition, if he tapered off of his narcotics his functionality likely would improve. Mr. May thought that if Claimant pursued these vocational steps he could be employable as a parking attendant or cashier, but he did not perform any employment surveys in Claimant’s area.
41. I find that Mr. May’s opinion lacks credibility. First, he did not review Claimant’s extensive medical records. Second, he was unaware that Claimant was already pursuing both English courses and psychotherapy. Third, he has no medical expertise to render an opinion regarding the effect of tapering narcotics use and any corresponding effect on Claimant’s functionality. Finally, he did not identify any vocational rehabilitation services that were available to Claimant to pursue that had not been or were not being pursued.
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. The disputed issue in this case is whether Claimant is capable of regular, gainful employment for purposes of determining whether he is permanently totally disabled. Claimant argues he is not capable of regular gainful employment due to his age, education, depression, work history and his severe limitations on his capacity to work. Conversely, Defendant argues that if Claimant continued to pursue vocational rehabilitation services, he would be capable of regular gainful employment.
3. 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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4. 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.
5. The parties presented somewhat conflicting medical evidence as to the barriers to employment posed by Claimant’s injuries, both physical and psychological. Ms. Mikula determined that the combination of his chronic pain and resulting physical limitations, depression and anxiety would be difficult to overcome. Dr. White focused more on Claimant’s physical capabilities, but even in that context recognized the need for significant return to work restrictions. Both experts deferred to the functional capacity evaluations as the most accurate indicator of Claimant’s work capacity.
6. As to those, the differences between Ms. Galipeau’s opinion and Mr. Alexander’s were relatively minor. Ms. Galipeau concluded that Claimant had at least some capability for light work, while Mr. Alexander concluded that he had only a sedentary capacity. Both agreed that he was capable of only part time work, at best two to three hours daily. The employment ramifications of this restriction are significant, whether sedentary or light work is contemplated.
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7. With this restriction in mind, I must consider whether, given his age, education, experience, training, occupation, physical and psychological limitations and functional capacities, it is reasonable to expect that Claimant will be able to return to regular gainful employment. As Professor Larson describes it, the essence of the test for permanent total disability in such “odd lot” cases is “the probable dependability with which [the] claimant can sell his or her services in a competitive labor market, undistorted by such factors as business booms, sympathy of a particular employer or friends, temporary good luck or the superhuman efforts of the claimant to rise above crippling handicaps.” 4 Lex K. Larson, Larson’s Workers’ Compensation §83.01 at p. 83-3 (Matthew Bender, Rev. Ed.). What matters is what is reasonably likely from a vocational perspective, not what is remotely possible. Moulton v. J.P. Carrera, Inc., Opinion No. 30-11WC (October 11, 2011).
8. I conclude that Ms. Parker’s opinion on this issue is far more persuasive than Mr. May’s. Ms. Parker reviewed Claimant’s entire medical file and spent considerable time with him in an attempt to develop a viable return to work plan. She conducted labor market surveys and tracked the extent to which his English language skills were (or were not) progressing. Based on this background work, vocational research and analysis, she determined that Claimant could not reasonably be expected to return to regular gainful employment.
9. In contrast, Mr. May’s opinion was based on an incomplete understanding of Claimant’s medical history and current status. It relied instead on speculation and conjecture as to what Claimant’s vocational potential might be if he (a) weaned himself off of narcotic pain medications; (b) became more proficient at English; and (c) pursued further, though unspecified, vocational rehabilitation services. The credible evidence does not bear out any of these assumptions.
10. I conclude that Claimant has sustained his burden of proving that as a result of his work injury he is unable to perform regular, gainful work. This circumstance is unlikely to change even with the provision of further vocational rehabilitation services. Claimant is permanently and totally disabled.
11. 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.
10
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Permanent total disability benefits in accordance with 21 V.S.A. §645, commencing on April 30, 2010 and with interest from that date forward in accordance with 21 V.S.A. §664; and
2. Costs and attorney fees in amounts to be determined, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 28th day of November 2012.
_______________________
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.

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