Archive

Tag Archive for: permanently and totally disabled

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
2
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.
3
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.
4
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.
5
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.
6
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
7
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.
8
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.
9
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).
10
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.
11
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.
12
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.
13
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
2
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.
3
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.
4
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.
5
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.
6
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.
7
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.
8
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.
9
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.
10
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.
11
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).
12
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.
13
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.
14
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.
15
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.
16
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.

© Copyright - -