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James Dearmin v. Surge Resources, Inc. (May 27, 2010)

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James Dearmin v. Surge Resources, Inc. (May 27, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
James Dearmin Opinion No. 19-10WC
v. By: Sal Spinosa, Esq.
Hearing Officer
Surge Resources, Inc.
For: Patricia Moulton Powden
Commissioner
State File No. Y-01064
OPINION AND ORDER
Hearing held in Montpelier on January 21 and 22, 2010
Record closed on March 24, 2010
APPEARANCES:
David Lynch, Esq, for Claimant
Craig Matanle, Esq., for Defendant
ISSUES PRESENTED:
1. Did Claimant develop post traumatic stress disorder (PTSD) as a result of his August 17, 2006 work injury?
2. If yes, to what worker’s compensation benefits is he entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Claimant’s restaurant earnings and related tax data
Claimant’s Exhibit 2: Photograph of Claimant’s head injury
Defendant’s Exhibit A: Three surveillance tapes and related report
Defendant’s Exhibit B: Claimant’s work and pay records from 10/02/04 to 7/07/07
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Temporary partial disability benefits pursuant to 21 V.S.A. §646
Medical benefits pursuant to 21 V.S.A. §640
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Defendant is in the roofing business; Claimant worked for Defendant as a roofer.
Claimant’s Work Injury and Initial Treatment
4. On August 17, 2006 Claimant was roofing when a fellow worker accidentally struck him with a nail gun,1 thereby discharging a nail into Claimant’s forehead above his left eye. Co-workers helped Claimant from the roof and drove him to the Fletcher Allen emergency room.
5. At Fletcher Allen Claimant reported that he had a headache and was dazed, but denied that he had experienced a seizure or had lost consciousness. A CT scan confirmed that the nail had not fractured or penetrated Claimant’s skull, but rather was lodged in soft tissue. The scan showed no evidence of intracranial hemorrhage or other abnormalities. Emergency room providers described the injury as minor and removed the nail with surgical pliers. They prescribed pain medication and discharged Claimant in good condition with no restrictions except to avoid work for three days.
6. Dana Shappy, Claimant’s boss and a very believable witness, confirmed that Claimant was able to climb down a ladder after the accident and never lost consciousness. In fact, he testified that Claimant was relaxed, even joking, while at the hospital.
Conflicting Accounts of Claimant’s Return to Work and Post-Injury Behavior
7. Claimant showed up for work the very next day. Out of concern over Claimant’s injury, Mr. Shappy sent him home. When Claimant returned a few days later, he resumed his same duties and exhibited no behavioral or attitudinal changes. Claimant continued to work with and around nail guns, showing no reluctance to do so. He worked well with co-employees and took instruction appropriately. Mr. Shappy testified that to his observation Claimant did not exhibit any memory deficits or difficulty completing work projects. Nor did he complain of any headaches, nightmares or flashbacks. However, Mr. Shappy did testify that Claimant displayed some anxiety about starting up a future restaurant business.
1 A nail gun is a hand held carpentry tool that when engaged drives a nail by means of a sudden burst of compressed air.
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8. Claimant, on the other hand, testified that when he returned to work after the accident he was cautious, moved slower, lacked confidence and reacted to the sound of the nail gun. He testified to persistent headaches, memory and concentration difficulties, and personality changes that included explosive anger, flashbacks and nightmares. He further testified that he was afraid to use or be around nail guns and would experience flashbacks at the sound of the gun in use.
9. On August 29, 2006 Claimant saw Dr, Starr, a neurologist, complaining of headaches. Dr. Starr found no evidence of a post-concussive condition but instead diagnosed post-trauma tension headaches. He prescribed over-the-counter pain medication and expected Claimant to return to baseline soon.
10. Two months after his return to work, Claimant opened a restaurant with family members. He continued to work part time for Defendant. After approximately six months, during which Claimant engaged in periodic disagreements with his family members over how best to run the business, he left the restaurant. In May 2007 Claimant returned to full time roofing for Defendant.
11. Mr. Shappy, his sister Deanna Raymond, who also worked for Defendant, and E. Marie Goo, Claimant’s mother, all testified that Claimant had been excited about leaving his roofing job to open the restaurant and was disappointed when he had to depart and return to full-time roofing. In contrast, Claimant testified that he was neither excited about opening a restaurant nor disappointed that once it failed he had to resume his roofing work.
12. After leaving the restaurant Claimant returned to his same roofing duties with Defendant. According to Mr. Shappy, Claimant continued to show no concern about using nail guns and no reluctance to work around others who used them. Mr. Shappy testified that Claimant did not exhibit any unusual behavior or complain of any other job-related difficulties. Initially, Claimant maintained the same high quality job performance that had typified his work for Defendant over the years.
13. One month after his return to full-time roofing, Claimant became uncooperative and disruptive at work. That led to an extended argument with Deanna Raymond, his supervisor at the time, which in turn led to his firing in early July 2007. Thereafter Claimant continued to work other jobs in the construction trade, including work as a roofer.
Claimant’s Medical Treatment and Assessments
14. On July 26, 2007 Claimant returned to Dr. Starr, the neurologist who had evaluated him shortly after his injury, complaining of headaches, inattention, raging mood swings and hostility. Claimant also reported mild imbalance and staring spells. Dr. Starr ordered a brain MRI, an EEG and serum studies to rule out the possibility that Claimant’s symptoms might be due to a tumor, seizures or metabolic dysfunction. All test results were normal. As treatment, Dr. Starr suggested a modification to Claimant’s medications and psychiatric follow up.
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15. Through August and September 2007 Claimant treated with Drs. Starr and Shulman, a family practitioner. He continued to complain of chronic headaches, explosive behavior and severe irritability. Claimant’s providers continued him on prescribed medication; Dr. Shulman arranged a second neurological examination.
16. In October 2007 Claimant saw Dr. Patel, a neurologist. Claimant reported that his symptoms followed gradually after his work injury and, in addition to headaches, that he was now experiencing visual and auditory hallucinations. Dr. Patel confirmed that Claimant’s imaging studies showed no abnormalities and proposed a possible diagnosis of neurotransmitter imbalance and mood disorder. He adjusted Claimant’s medications and recommended psychiatric treatment.
17. In November 2007 Claimant returned to Dr. Shulman, continuing to report headaches, irritability, explosive behavior, mood swings, depression and hallucinations. Dr. Shulman opined at that time that Claimant suffered from complex, partial seizure-like symptoms associated with traumatic brain injury caused by his work injury.
18. Between June 2008 and July 2009 Claimant treated regularly at the White River Junction, Vermont Veteran’s Administration facility. Based on their observations, treatment and testing the providers there concluded that Claimant met the criteria for post traumatic stress disorder (PTSD). Dr. Summerall, who treated Claimant for most of this period, noted in particular that Claimant exhibited symptoms of “irritability, avoidance, hypervigilance and re-experiencing.” According to Dr. Summerall, Claimant reported that his symptoms began after his work injury, that the nail gun incident was the source of his functional difficulties and that the injury was a “particularly terrifying and traumatic incident.”
19. In December 2009 Claimant underwent a defense medical evaluation with Dr. Van Uitert, a neurologist. Based on his review and examination, Dr. Van Uitert confirmed that Claimant had not suffered either a traumatic brain injury or a concussion following his work injury. He suspected that Claimant’s headaches most likely were muscle contraction tension type headaches. Dr. Van Uitert could find no neurological basis for Claimant’s behavior, but suggested further neurological treatment nonetheless. As for PTSD, Dr. Van Uitert acknowledged that it was a possibility, but declined to offer a conclusive opinion on that diagnosis.
Expert Psychiatric Opinions as to Post Traumatic Stress Disorder
20. At Defendant’s request, Claimant has undergone two independent psychiatric examinations with Dr. Drukteinis, a forensic psychiatrist and medical-legal consultant. The first evaluation occurred in March 2008. The second evaluation occurred more than a year later, in November 2009. In the course of his evaluations, Dr. Drukteinis reviewed Claimant’s personal history and medical records, personally examined him and administered a battery of psychological tests.
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21. Dr. Drukteinis concluded, first of all, that Claimant had not suffered a traumatic brain injury as a result of his August 2006 work injury. Dr. Drukteinis’ own testing revealed no evidence of cognitive deficits, and the timing and progression of Claimant’s reported symptoms both were inconsistent with that diagnosis.
22. Dr. Drukteinis next considered the possibility that Claimant was suffering from PTSD. According to the Diagnostic and Statistical Manual for Mental Disorders IV (the “DSM-IV” ), PTSD is a severe anxiety disorder diagnosed in accordance with the following six criteria:
• Exposure to an extreme stressor involving actual or threatened death or serious injury, the response to which involves intense fear, helplessness or horror;
• Persistent re-experiencing of the traumatic event;
• Persistent avoidance of stimuli associated with the trauma;
• Persistent symptoms of increased arousal;
• Duration of symptoms for more than one month; and
• Significant impairment in social, occupational or other important areas of functioning.
23. Dr. Drukteinis concluded that Claimant did not suffer from PTSD and that his current symptoms were not causally related to his August 2006 work injury. In reaching this conclusion, Dr. Drukteinis made the following observations:
• There is significant overlap between the signs and symptoms of PTSD and those attributable to other anxiety disorders.
• Claimant emphasized his PTSD symptoms to a far greater extent in his November 2009 evaluation than he had in his March 2008 evaluation. In particular, Claimant reported both nightmares and persistent re-experiencing of the nail-gun event in the context of Dr. Drukteinis’ November 2009 evaluation, but had made no mention of these symptoms during his March 2008 evaluation.
• Claimant exhibited no symptoms of avoidance of stimuli associated with the trauma. To the contrary, he continued to work as a roofer, both using nail guns himself and working around others who did.
• Claimant did not report any changes in his behavior until at least six months after his injury, and his medical records did not document any symptoms indicative of PTSD until nearly two years after the event.
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24. In making these observations Dr. Drukteinis placed particular emphasis on the absence of any defensive avoidance behavior, which he characterized as the most valid indicator for PTSD. He emphasized as well the fact that Claimant had not reported any behavioral changes or PTSD-like symptoms for many months after the nail-gun event. Dr. Drukteinis acknowledged that while it is possible to experience the delayed onset of PTSD symptoms, there must be a trigger for the symptoms to occur when they do. The trigger in Claimant’s case, according to Dr. Drukteinis, would have been the point at which he was re-exposed to a nail gun. Yet Claimant’s symptoms did not appear until six months later.
25. Dr. Drukteinis did find sufficient evidence from which to conclude that Claimant likely suffers from both moderate to severe depression and an anxiety disorder. In Dr. Drukteinis’ opinion, the latter condition most likely is related to Claimant’s failed restaurant endeavor, his sense of being trapped in his current work circumstances and his relationship with his girlfriend. In fact, Dr. Drukteinis observed that the onset of at least some of Claimant’s emotional symptoms – his anger and explosive behavior, for example – were more temporally associated with his involvement in the restaurant venture than they were with the nail-gun incident.
26. Claimant’s expert witness, Dr. Kessler, disagreed with Dr. Drukteinis’ analysis. Dr. Kessler, a psychologist, performed an independent psychological examination of Claimant in November 2009. Based on his review of Claimant’s medical records, his personal interview with Claimant and the psychological testing that he administered, Dr. Kessler proposed a variety of possible diagnoses to account for Claimant’s symptoms, including anxiety, major depression, personality disorder and PTSD. Of these diagnoses, Dr. Kessler determined that major depression and PTSD were the most appropriate, both causally related to Claimant’s August 2006 work injury.
27. According to Dr. Kessler, Claimant reported that while he did not avoid using a nail gun himself, he did avoid his fellow workers. In Dr. Kessler’s opinion, this was sufficient evidence of avoidance behavior to satisfy that element of the DSM-IV’s diagnostic criteria for PTSD. Dr. Kessler concluded from Claimant’s psychological test results that the other criteria were satisfied as well.
28. Dr. Kessler determined that Claimant might still benefit from psychotherapy and medications, and therefore was not yet at end medical result. As for work capacity, in Dr. Kessler’s opinion Claimant’s psychological injuries preclude him from maintaining the consistency, focus and pace required to sustain a full-time job over a reasonable period of time. As a result, Dr. Kessler believes that Claimant remains temporarily totally disabled.
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29. Dr. Drukteinis questioned Dr. Kessler’s conclusions, noting the following:
• Dr. Drukteinis questioned whether Dr. Kessler had reviewed all of Claimant’s relevant medical records prior to rendering his diagnostic conclusions.
• Contrary to Dr. Kessler’s assertion that Claimant had provided a “consistent” history as to the progression of his symptoms, Dr. Drukteinis noted important factual discrepancies relating to the temporal relationship between Claimant’s return to work for Defendant, his failed restaurant venture and the onset of his symptoms. According to Dr. Drukteinis, meeting the diagnostic criteria for PTSD depends heavily on establishing an accurate timeline, which in his opinion Dr. Kessler did not do.
• Given that Dr. Kessler’s testing relied heavily on Claimant’s subjective responses, Dr. Drukteinis questioned whether Dr. Kessler’s conclusions truly could be said to have been based on “objective measurements.” Without access to the raw data from which Dr. Kessler drew his conclusions, Dr. Drukteinis asserted that it was difficult to determine whether they were supportable or not.
• Dr. Drukteinis characterized Dr. Kessler’s determination that Claimant met the avoidance criterion of the PTSD diagnosis by virtue of the fact that he avoided his co-employees as “a stretch.” With reference to a surveillance video showing Claimant using a nail gun with no apparent difficulty, Dr. Drukteinis reiterated that Claimant’s continued use of the very tool by which he had been injured effectively negated any finding of avoidance behavior sufficient to sustain a PTSD diagnosis.
• Last, Dr. Drukteinis asserted that even if Claimant did suffer from PTSD, given that he has continued to work as a roofer when jobs are available clearly he still has a work capacity.
30. Dr. Kessler did not review the surveillance video showing Claimant working with a nail gun in no apparent distress. He also apparently was unaware of the descriptions that Claimant’s co-workers gave of Claimant’s behavior immediately following his return to work after the nail gun incident. As noted above, Claimant exhibited no apparent behavioral or attitudinal changes for many months after his initial return to work; to the contrary, these did not appear until after his failed restaurant venture.
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CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. To establish a so-called “physical-mental” claim, one involving a mental injury that results from a work-related physical injury, Claimant must prove a causal nexus between a compensable physical injury and a psychological impairment. Merrill v. Town of Ludlow, 147 Vt. 186 (1986); Blais v. Church of Christ of Latter Day Saints, Opinion No. 30-99WC (July 30, 1999).
3. At issue here is whether Claimant’s mental state and behavioral issues are causally related to his work injury. Claimant contends that his August 17, 2006 work injury caused PTSD, which in turn produced his mental and behavioral abnormalities.2 Defendant argues that based on witness accounts of Claimant’s own conduct, the substance and timing of his reported symptoms, its own psychological analysis and a credible alternate cause for his symptoms, Claimant has not proven that he developed PTSD as a result of his work injury.
4. To determine whether Claimant has met his burden of proof requires careful review and analysis of conflicting medical evidence. 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. Applying this test to the expert medical opinions offered in the current claim, I find Dr. Drukteinis’ to be the more reliable and credible. I am particularly persuaded by his comprehensive evaluations and reporting along with the objective support he provides for his opinion.
2 Throughout Claimant’s years of treatment for his work injury his providers periodically suspected that his psychological and behavioral symptoms were due to either a traumatic brain injury or a concussion. Claimant underwent multiple examinations and diagnostic testing to confirm or refute these suspicions. With the exception of one early provider, all of the medical professionals who treated or evaluated Claimant ultimately rejected these diagnoses. Consequently, I concur that neither is the cause of Claimant’s condition.
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6. In contrast, by failing to explain adequately the basis for his finding that Claimant met the diagnostic criteria for PTSD, Dr. Kessler’s opinion was rendered less persuasive. The gaps in his reasoning are particularly significant where, as here, Claimant’s credibility was in question.
7. In addition, while Dr. Kessler did find support for a work-related PTSD diagnosis, his call for further testing in order to achieve a clear conclusion as to other, non-work-related diagnoses muddies the waters and weakens his opinion considerably.
8. Last, I am unconvinced by Dr. Kessler’s conclusion that Claimant displayed sufficient avoidance behavior to satisfy that diagnostic criterion for PTSD. Instead, I am compelled to accept Dr. Drukteinis’ assertion that for Claimant to continue to work with nail guns is remarkably inconsistent with a PTSD diagnosis.
9. I conclude that Claimant has not sustained his burden of proof that he suffers from PTSD causally related to his August 17, 2006 work injury.
10. Having failed to prevail, Claimant is not entitled to an award of costs or attorney fees.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for workers’ compensation benefits causally related to his August 17, 2006 work injury is hereby DENIED.
DATED at Montpelier, Vermont this 27th day of May 2010.
_____________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Diana Farnham v. Shaw’s Supermarkets (March 29, 2013)

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

Diana Farnham v. Shaw’s Supermarkets (March 29, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Diana Farnham Opinion No. 11-13WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Shaw’s Supermarkets
For: Anne M. Noonan
Commissioner
State File No. X-61625
OPINION AND ORDER
Hearing held in Montpelier, Vermont on November 16, 2012
Record closed on January 14, 2013
APPEARANCES:
Charles Powell, Esq., for Claimant
Christopher Callahan, Esq., for Defendant
ISSUES PRESENTED:
1. Did Claimant suffer a compensable psychological injury as a result of her May 3, 2006 work-related accident?
2. If yes, is her treatment medically reasonable?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Video of Dr. Rater’s examination
Defendant’s Exhibit A: Curriculum vitae, Dr. Rater
CLAIM:
Medical benefits pursuant to 21 V.S.A. §640
Costs and attorney fees pursuant to 21 V.S.A. §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 contained in the Department’s file
relating to this claim.
Claimant’s May 2006 Work-Related Accident
3. Claimant began working in the deli department of Defendant’s supermarket. Later she moved to the produce department. Subsequently she was promoted to the front of the store, where she oversaw the cashiers. Her most recent position was that of inventory manager.
4. Claimant’s duties as inventory manager required her to traverse the store with a barcode scanning device, which she used to count the products on the shelves in each aisle. As she did so throughout the day, she regularly encountered and conversed with customers. Claimant credibly described how much she enjoyed interacting with people in this way.
5. On May 3, 2006 Claimant slipped and fell while climbing a set of recently waxed stairs. As she did so, her right hand caught in the railing bracket. She immediately felt pain in her right wrist, thumb and ankle. At her supervisor’s direction, she completed her shift, and then sought treatment at the emergency department. X-rays revealed no fractures. Claimant was diagnosed with right wrist and ankle sprains and fitted with Ace bandages. She was discharged with instructions to follow up with her primary care provider.
6. Claimant attempted to work the following three or four days, but was unable to do so successfully. According to her credible testimony, her supervisor changed her job duties to include lifting heavy items, something her injuries prevented her from doing. Claimant has not returned to work since May 2006.
Claimant’s Post-Injury Medical Treatment
7. One week after her injury, on May 10, 2006 Claimant followed up with her primary care provider, Kim Ladue, a family nurse practitioner. She continued to complain of pain in her right wrist, thumb and ankle. Initially Ms. Ladue prescribed a wrist splint and a walking boot. Claimant showed no improvement over the course of several subsequent office visits, whereupon Ms. Ladue referred her for both a course of physical therapy and an evaluation by a hand specialist.
8. In the years since her injury, Claimant has undergone a variety of treatments to address her persistent wrist, thumb and ankle pain. As Ms. Ladue had suggested, she consulted with a hand therapist at Dartmouth-Hitchcock Medical Center. She underwent courses of physical and occupational therapy, injections, nerve blocks and medications. None of these conservative therapies were successful. Her pain became chronic, and she could not move her thumb at all.
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9. Claimant has undergone two surgeries to address her right ankle symptoms, one in 2007 and the other in 2010. Though not completely resolved, her ankle pain became manageable after the second surgery and remains so today.
10. Unfortunately, the pain in Claimant’s thumb has proven far more difficult to manage. In October 2008 she underwent “trigger release” surgery, which her surgeon deemed successful, but she did not regain full range of motion subsequently and her thumb became increasingly painful. Over time, the focus of Claimant’s pain complaints came to involve primarily her right thumb.
11. Many treatment providers have tried to address Claimant’s chronic thumb pain. She now has been diagnosed with very focal chronic regional pain syndrome in the right thumb. Recently she underwent a successful spinal cord stimulator trial to address her chronic pain. As of the formal hearing, she was awaiting permanent implantation of the device.1
Claimant’s Pre-Injury Psychosocial History
12. Claimant grew up in the Randolph, Vermont area. She endured no physical or emotional abuse. There were no serious conflicts between her and either her parents or her older sister. She graduated high school at an accelerated rate at the age of sixteen.
13. After graduation Claimant married her current husband. Their relationship has been strong and supportive. Prior to her work injury, Claimant enjoyed four-wheeling and spontaneous trips with her husband. She also helped him in his contracting business by cutting the wood for his jobs. Together they have raised three children.
14. Claimant did not enter the work force until her youngest child was eight years old. First she worked for a food service company, then for a retail store and finally for Defendant. Claimant was productive at her previous two employments, but she clearly preferred the more social interactions that her positions with Defendant afforded her.
15. Prior to her work injury, Claimant enjoyed doing yard work and taking walks around the neighborhood. These activities gave her the opportunity to socialize with neighbors and get caught up with what was going on in their lives.
16. Claimant loves animals. Prior to her work injury, three or four times annually she would travel by herself to SeaWorld, to enjoy the dolphins and the manatees there. She became familiar with the animals’ names, as well as those of SeaWorld’s staff. Claimant credibly described these trips as very relaxing and fulfilling. In addition to these trips, during the summers she and her husband would travel by car to Jackson Hole, Wyoming to enjoy the bison, fox and other animals in the canyon. Claimant found these vacations very relaxing as well.
1 With this treatment still pending, as of the date of the formal hearing Defendant stipulated that Claimant had not yet reached an end medical result for her physical injuries.
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17. In general, prior to her work injury Claimant enjoyed good mental health, with stable family relationships, rewarding social interactions and satisfying recreational activities.
Claimant’s Post-Injury Psychiatric Condition and Treatment
18. Claimant has been experiencing chronic pain since her May 2006 injury. Nevertheless, until her first ankle surgery in March 2007 she was able to cope reasonably well with her condition. Her recovery from that surgery was protracted, however. With the pain and restricted movement in her right thumb, she could not ambulate with crutches. As a result, she was both wheelchair- and house-bound for months.
19. During this period, Claimant began feeling depressed and anxious. She had trouble sleeping and experienced recurrent nightmares, in which she saw herself in a casket. She cried frequently, often for no discernable reason. She had difficulty concentrating while reading a newspaper or watching television. She had no energy, felt hopeless and often thought of suicide. As her husband credibly described, when he looked into her eyes it was as if “she [was] not there.”
20. Most notably, Claimant shied away from social interactions, avoided leaving the house and took no joy in what were previously pleasurable pursuits. Once a very independent person, she no longer felt able to take her trips to SeaWorld, nor did she want to. She traveled there on one occasion with her husband, but credibly testified that it was not an enjoyable experience for her. She and her husband also returned one time to Jackson Hole after her injury, but she cried all the way there and described the trip as “miserable.”
21. From March 2007 on, Claimant’s psychological symptoms worsened. Her primary care provider prescribed antidepressants and an anti-anxiety medication, but these were ineffective. Finally, in May 2009 she was referred to Robert Vaillancourt, a licensed psychologist masters. He diagnosed Claimant with major depressive disorder.
22. Claimant has been in treatment with Mr. Vaillancourt continuously every one or two weeks since 2009. She has made some progress, but remains severely disabled by her depression. In April 2012 both Mr. Vaillancourt and her primary care provider referred her to the Treatment Resistive Depression Clinic at Dartmouth-Hitchcock Medical Center for a diagnostic interview. The providers there reaffirmed the diagnosis of major depressive disorder, which they characterized as severe. As treatment, they recommended that her medication regimen be reviewed for possible dosage increases and also that she continue therapy with Mr. Vaillancourt.
23. Since her May 2006 work injury Claimant has gained more than fifty pounds. Her current psychiatric prescriptions include Wellbutrin, Effexor and amitriptyline for depression, Klonopin for anxiety and Prazosin for persistent nightmares. Claimant credibly testified that she still struggles with thoughts of suicide.
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Expert Psychiatric Opinions
(a) Dr. Drukteinis
24. Dr. Drukteinis is a board certified psychiatrist and Diplomate in the American Academy of Pain Management. At her attorney’s request, he reviewed Claimant’s pertinent medical records in December 2011, and then conducted an in-person evaluation in January 2012.
25. Dr. Drukteinis diagnosed Claimant with (a) a pain disorder associated with both psychological factors and a general medical condition; and (b) major depressive disorder with features of agoraphobia. In his opinion, the latter condition is causally related to Claimant’s May 2006 work injury.2
26. According to the Diagnostic and Statistical Manual of Mental Disorders (4th ed., text rev., 2000), to establish a diagnosis of major depressive disorder a patient must be found to have a depressed mood or loss of interest or pleasure for more than a two-week period, plus five out of the following nine additional symptoms:
• Depressed mood for most of the day;
• Diminished interest or pleasure in all or most activities;
• Significant weight loss when not dieting, or weight gain;
• Insomnia;
• Psychomotor agitation or retardation;
• Fatigue or loss of energy;
• Feelings of worthlessness or excessive guilt;
• Inability to think or concentrate; and
• Recurrent thoughts of death or suicidal ideation.
2 Dr. Drukteinis did not state a specific opinion as to whether Claimant’s pain disorder was causally related to her work injury, though this seems self-evident.
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27. In Dr. Drukteinis’ opinion, over the course of the three years preceding his evaluation Claimant has exhibited all of these symptoms in varying degrees of intensity. For example:
• She has lost interest in pleasurable things, such as conversing with neighbors and customers at the supermarket or taking trips to SeaWorld;
• She has difficulty sleeping, and experiences recurrent nightmares;
• She has gained a significant amount of weight, lacks energy and cannot concentrate while reading a newspaper; and
• She expresses feelings of worthlessness and frequently has suicidal thoughts.
28. Dr. Drukteinis’ diagnosis comports with the diagnostic criteria for major depressive disorder, and is consistent with the diagnostic conclusions that both Mr. Vaillancourt and the Dartmouth-Hitchcock evaluators reached. For these reasons, I find his analysis very persuasive.
29. In Dr. Drukteinis’ opinion, though precipitated by her physical injury and chronic pain, Claimant’s major depressive disorder has now taken its own course. According to his analysis, Claimant spiraled down into her current depressive state over the course of several years. At this point, even if her chronic pain abates, and/or if she makes further psychological progress through counseling and medication, the diagnosis of major depressive disorder will remain. I find this analysis credible.
30. Dr. Drukteinis believes that the psychological treatment Claimant has been receiving is reasonable and appropriate. Claimant is severely depressed with passive suicide ideation at times. Ongoing psychological and psychiatric support is necessary for her support and maintenance. The medications she has been prescribed have been at least somewhat helpful in relieving her symptoms. A clinical psychiatric consultation might assist in determining whether a more aggressive medication program might be even more beneficial. I find this reasoning persuasive.
(b) Dr. Rater
31. Dr. Rater is a board certified psychiatrist. At Defendant’s request, he performed an independent medical examination of Claimant in September 2011. Dr. Rater reviewed the pertinent records at the time, as well as Dr. Drukteinis’ reports when they became available.
32. Dr. Rater concluded that Claimant does not suffer from a psychiatrically diagnosed condition causally related to her May 2006 work injury. Rather, in his opinion, her primary concern is one of chronic pain. According to his analysis, any lack of physical activity, insomnia, weight gain or inability to think or concentrate is attributable solely to the pain caused by her physical injuries. If the pain were to resolve, she would not be depressed.
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33. In support of his opinion, Dr. Rater pointed to various occasions described in Mr. Vaillancourt’s progress notes in which Claimant was reported to enjoy country music and exercise, that she had taken up crocheting and that she had traveled to both SeaWorld and Wyoming after her work injury. From these reports, Dr. Rater determined that Claimant was able to leave her home, interact socially with others and cope with stress. With that in mind, he concluded that Claimant was not suffering from major depressive disorder. I do not find this analysis convincing.
34. Regarding the reasonableness of Claimant’s treatment, in Dr. Rater’s opinion Claimant needs at most sixteen therapy sessions to learn how to manage chronic pain. Thus, her ongoing counseling sessions with Mr. Vailliancourt are not necessary. Additionally, because her psychiatric medications might cross-react with her pain medications, these are not appropriate either. I do not find Dr. Rater’s reasoning on this issue persuasive.
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 here presents a “physical-mental” claim – one in which a compensable physical injury provokes a psychological injury as well. If there is sufficient medical evidence to establish a causal connection between the former and the latter, then the psychological injury is deemed to have arisen out of the physical injury and therefore becomes compensable. Vach v. Twin City Subaru, Opinion No. 02-00WC (March 24, 2000); Blais v. Church of Jesus Christ of Latter Day Saints, Opinion No. 30-99WC (July 30, 1999); see generally, 3 Lex K. Larson, Larson’s Workers’ Compensation §56.03[3] (Matthew Bender, Rev. Ed.), and cases cited therein.
3. To establish the required connection, Claimant presented testimony from Dr. Drukteinis. Claimant alleges that as a result of her May 2006 work injury, and specifically following her March 2007 ankle surgery, her chronic pain became unmanageable. The combination of intractable pain and physical limitations caused her to develop the major depressive disorder from which she now suffers.
4. Defendant counters this argument through the testimony of its expert, Dr. Rater. It asserts that Claimant’s depression is not a separate diagnosis, but rather is merely secondary to her chronic pain. If her pain were to resolve, her depression would resolve as well.
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5. The key component of any workers’ compensation claim is the causal nexus between a work-related accident and a resulting injury. 21 V.S.A. §618. Most compensable claims originate with a physical stimulus, a slip and fall, for example, and result in a physical injury, such as a disc herniation or a ligament tear. The same causal nexus is required in a physical-mental claim. The only difference is that the work-related physical stimulus gives rise to a psychological injury rather than a physical one. See, e.g., Blais v. Church of Christ of Latter Day Saints, Opinion No. 30-99WC (July 30, 1999); see 3 Lex K. Larson, Larson’s Workers’ Compensation §56.03 (Matthew Bender, Rev. Ed.) and cases cited therein.
6. Where expert 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).
7. I conclude that Dr. Drukteinis’ opinion is better supported, and therefore more persuasive, than Dr. Rater’s. Dr. Drukteinis’ analysis took into account the way in which Claimant’s psychological symptoms have evolved over time. According to both Claimant’s own credible testimony and that of her treatment providers, they now encompass every one of the elements necessary to support a diagnosis of major depressive disorder. They signify far more than simply a reaction to chronic physical pain, and even if that pain resolves, they are unlikely to disappear without focused, ongoing psychological treatment.
8. In contrast, Dr. Rater’s analysis relied primarily on snippets of information gleaned from Mr. Vaillancourt’s notes, not the broader picture that Claimant herself credibly described. As I do not accept as credible his analysis, nor can I accept as credible his ultimate conclusion.
9. As to the reasonableness of Claimant’s ongoing psychological treatment, including both continued counseling and medications, I conclude that Dr. Drukteinis’ opinion is more persuasive. Given the period of time during which her psychological symptoms have persisted, I concur that further treatment is necessary to support her emotionally.
10. I conclude that Claimant has sustained her burden of proving that her current psychological condition, specifically major depressive disorder, is causally related to her May 2006 work injury, and is therefore compensable. I further conclude that the treatment she is receiving is reasonable. She therefore is entitled to workers’ compensation coverage for whatever further treatment is determined to be reasonable, necessary and causally related to that condition.
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Costs and Attorney Fees
11. As Claimant has prevailed on her claim for benefits, she 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 her itemized claim.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Medical benefits covering all reasonable medical services and supplies necessitated by Claimant’s compensable major depressive disorder, in accordance with 21 V.S.A. §640; and
2. Costs and attorney fees in amounts to be determined, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 29th day of March 2013.
___________________________
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.

E. H. v. Mack Molding Company (May 13, 2009)

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

E. H. v. Mack Molding Company (May 13, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
E. H. Opinion No. 14-09WC
v. By: Jane Gomez-Dimotsis
Hearing Officer
Mack Molding Company For: Patricia Moulton Powden
Commissioner
State File No. Y-52409
OPINION AND ORDER
Hearing held in Montpelier on October 23, 2008.
Record closed on November 25, 2008.
APPEARANCES:
Richard Bowen, Esq. for Claimant
Keith Kasper, Esq. for Defendant
ISSUE:
Is Claimant’s mental health condition causally related to the compensable injured he suffered to his thumb on August 31, 2006?
EXHIBITS:
Joint Medical Exhibit with supplemental file from Valley Regional Hospital
Claimant’s Exhibit 1: Dr. Halikias’ Curriculum Vitae
Claimant’s Exhibit 2: Nurse Case Manager notes
Claimant’s Exhibit 3: DSM-IV-TR attached to Dr. Batt’s deposition
Defendant’s Exhibit A: Dr. Mann’s Curriculum Vitae
Defendant’s Exhibit B: MMPI-2 Testing Manual
CLAIM:
Medical benefits, including hospitalization, pursuant to 21 V.S.A. §640
Temporary total disability benefits pursuant to 21 V.S.A. §642
Attorney’s fees and costs pursuant to 21 V.S.A. §678
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FINDINGS OF FACT:
Stipulated Facts
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was an employer as those terms are defined in the Vermont Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s files relating to this claim.
3. Claimant suffered a personal injury to his thumb arising out of and in the course of his employment with Defendant. Claimant tried to commit suicide approximately one year later.
4. Claimant’s average weekly wage on the date of injury, August 31, 2006, was $703.12. Claimant has no dependents.
5. On August 5, 2007 Claimant began receiving treatment for depression and Post Traumatic Stress Disorder (PTSD) as a result of an alleged suicide attempt.
6. Defendant has denied the compensability of all psychiatric-related bills and conditions associated with the alleged suicide treatment and all medical expenses directly associated therewith. Defendant has continued to pay all medical benefits otherwise associated with Claimant’s compensable thumb injury and also has continued payment of Claimant’s temporary total disability benefits after August 5, 2007.
Claimant’s Background and Brief History
7. Claimant, now 75 years old, was born June 1, 1934 in Lebanon, New Hampshire and has lived in Windsor County, Vermont for most of his life. He was forced to quit school in the eighth grade when his father died. He did various jobs and worked for a paper company for twenty-four years until the company closed. After other employment, Claimant worked for Defendant for approximately twelve years until his accident.
8. Claimant has been married three times and has adult children. He was divorced from his first and second wives after many years of marriage. He separated from his third wife after less than three years of marriage and was living alone at the time of the accident. There is evidence from a Massachusetts General Hospital social worker that Claimant informed her he had experienced feelings of depression for about a year prior to his work accident due to his separation and expected divorce from his last wife.
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The Accident
9. Claimant began work on August 31, 2006 at 11:00 p.m. as a machine operator at Defendant’s company. When he began his shift, the machines were leaking oil onto the floor. However, the presses do not shut down during shift changes. After working for a short while, Claimant lost his footing due to the oil on the floor. When he put his hand out to break his fall he caught his thumb in the press.
10. With his thumb caught and almost severed from his hand, Claimant could not reach the buttons that would turn off the press. He began screaming for help, but because the machinery noise on the plant floor was so loud, no one heard him. Claimant remained caught in the machine for almost five minutes. Finally, a co-worker came to his aid, shut down the machine and released Claimant’s thumb. Claimant was driven to Springfield Hospital, and then, because his injury was so serious, transported by ambulance to Massachusetts General Hospital. He did not receive treatment until 7:33 a.m. on September 1st, seven or eight hours after the accident had occurred.
Post- Accident Treatment
11. Claimant was diagnosed with a fracture of the proximal phalanx in his thumb. He had open reduction surgery to repair his digital artery and thumb.
12. After his hospitalization, on September 3, 2006 Claimant returned home with his thumb in a splint. Thereafter, he followed up with his doctors at Massachusetts General Hospital on a weekly basis. He was re-hospitalized after he developed a serious infection in his thumb that necessitated both intravenous and oral antibiotic treatment.
13. After some months, Claimant’s treating physician at Massachusetts General Hospital, Dr. Obeng, became concerned both about Claimant’s mental state and about the possibility that he might be developing reflex sympathetic dystrophy. Dr. Obeng referred Claimant to Dr. Fanciullo, a pain management specialist at Dartmouth Hitchcock Medical Center.
14. Dr. Fanciullo first evaluated Claimant on April 10, 2007 and diagnosed him with PTSD. Dr. Fanciullo did not enunciate the specific criteria he used to make this diagnosis, but did note that Claimant reported having nightmares of his thumb crush injury. Dr. Fanciullo treated Claimant until approximately September 2007. He prescribed Cymbalta to treat Claimant’s depression and pain medications for his physical symptoms. Unfortunately, these proved not to be particularly helpful. In May 2007 Dr. Fanciullo noted that Claimant was not really any better. He continued to treat Claimant until approximately September 2007, at which point he reported that if Claimant chose not to pursue psychiatric treatment options he might soon be at end medical result.
15. Claimant next was referred to Dr. Rosen at Dartmouth Hitchcock Medical Center to help increase the function in his thumb and to reduce his pain. There was a question at this time as to whether Claimant’s thumb should be amputated.
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16. During the summer of 2007 Claimant became increasingly despondent over the pain and functional limitations caused by his thumb injury. He lived alone, and because the injury was to his dominant thumb, daily chores and simple activities that most of us take for granted – buttoning his shirts, for example – were problematic. Claimant also was unable to play the guitar, a pastime he had always enjoyed.
Suicide Attempt, Hospitalization and Treatment
17. On August 2, 2007 Claimant was reported missing to the Vermont State Police. He last had been seen in Bellows Falls, near the Connecticut River. Four days later, he was found near the river in Charleston, New Hampshire. Claimant was transported to the hospital emergency room and admitted to the intensive care unit. At that time, he was suffering from dehydration, chest pain, a possible pulmonary embolism and neck pain. In addition, he exhibited a high level of confusion and expressed feelings of uselessness and depression. Claimant admitted that he had attempted to commit suicide by drowning but was unsuccessful and had been wandering for days without food or water.
18. While hospitalized, Claimant treated with Dr. Burns, who reported symptoms of PTSD on his notes. Subsequently, he was referred to Dr. Mazur at the hospital’s Valley Regional Behavioral Unit. Dr. Mazur diagnosed Claimant with a major depressive disorder. At their first interview, Claimant told Dr. Mazur he was depressed due to the separation from his third wife. Claimant expressed feelings of anger, uselessness due to his loss of employment and depression. However, there was no mention at all in Dr. Mazur’s initial report of Claimant’s 2006 thumb injury.
19. Dr. Mazur concluded that several stressors had built up to lead Claimant to want to kill himself. Among these were the thumb accident, the partial loss of its use and the pain related to it, his separation from his third wife and his inability to work. Dr. Mazur noted that Claimant had planned on continuing to work until he died.
Additional Psychiatric Treatment and Experts’ Conclusions
20. At Dr. Mazur’s referral, Claimant began treating with Dr. Batt in August 2007. Dr. Batt is a board certified forensic psychiatrist who has been in private practice for more than sixteen years. He frequently has treated patients suffering from PTSD, particularly military veterans.
21. Using the criteria adopted by the American Psychiatric Association in the DSM-IV-TR, Dr. Batt diagnosed Claimant with severe PTSD. The DSM-IV requires that six criteria, labeled A through F, be met in order for a PTSD diagnosis to be made. In Claimant’s case Dr. Batt found that eleven criteria had been met.
22. The first diagnostic criterion is that the person must have been exposed to a traumatic event involving threatened death or serious injury, as a result of which he or she experienced intense fear, helplessness or horror. Dr. Batt concluded that the injury Claimant suffered at work, in which his thumb was caught for many minutes before anyone appeared to help him, qualified as such an event.
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23. Criterion B requires that the person experience intrusive recollections of the traumatic event, such as distressing dreams, flashbacks or intense psychological distress when exposed to cues that resemble it in some way. In Claimant’s case, Dr. Batt noted that he had recurrent distressing dreams about the way his thumb injury had occurred and reported intense psychological distress when he returned to his former work site. Dr. Batt found these symptoms sufficient to satisfy Criterion B.
24. Criterion C encompasses avoidant and/or numbing behaviors. Under this criterion, Dr. Batt noted that Claimant avoided activities, places or people that would arouse recollection of his trauma. He did not like to talk about the event, and avoided thoughts, feelings or conversations about it. He felt detached from others. He was unable to recall certain aspects of the event. He had a sense of a foreshortened future or career, because he had worked all his life and couldn’t imagine life without work. Dr. Batt found these behaviors sufficient to satisfy Criterion C.
25. Criterion D requires evidence of hyper-arousal, for example, difficulty falling or staying asleep, difficulty concentrating, hyper-vigilance or an exaggerated startle response. Dr. Batt found sufficient evidence of these behaviors to meet this criterion as well.
26. Criterion E requires that the behaviors noted in B, C and D have lasted for more than one month, and Criterion F requires that they have caused significant distress or impairment in social, occupational or other important areas of functioning. Dr. Batt found both of these criteria to have been met in Claimant’s case.
27. Dr. Batt acknowledged that Claimant was depressed about the dissolution of his third marriage, but in his opinion this was not the cause of his PTSD. Dr. Batt noted that Claimant had been separated from his wife for almost a year prior to his injury, but was able to work full-time.
28. Dr. Batt believed that Claimant had tried to commit suicide on the anniversary of his thumb accident. In fact, Claimant’s suicide attempt occurred several weeks earlier than the actual anniversary date.
29. Dr. Batt was concerned that Claimant would attempt suicide again. In his opinion Claimant needed a complete treatment evaluation, including an evaluation with a neuropsychologist experienced with brain imagery. Dr. Batt believed that Claimant needed ongoing therapy, but that he did not understand either the seriousness of his condition or the value of psychotherapy. In Dr. Batt’s opinion, it could take Claimant up to five years to reach end medical result. In the meantime, he did not think Claimant should try yet to return to work.
30. Dr. Batt began treating Claimant in August 2007. Claimant discontinued treatment in August 2008 after Defendant ceased paying for it. In Dr. Batt’s opinion, Claimant’s prognosis was guardedly optimistic only if he continued psychiatric treatment and medication management. Even with that, Dr. Batt felt that Claimant likely had suffered permanent and severe psychological trauma.
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31. At the suggestion of Claimant’s counsel, Claimant also saw Dr. Halikias for a mental health evaluation in December 2007. Dr. Halikias has a doctorate in forensic clinical psychology. He has practiced for many years. He is board certified in assessment psychology and is a member of the American Psychology Association. He now specializes in court evaluations, teaching doctoral students, consultations and assessments. Dr. Halikias teaches doctoral candidates in psychology how to administer MMPI assessments.
32. Dr. Halikias administered a battery of tests to Claimant. He found clear, robust symptoms of PTSD with all diagnostic criteria met. He also found Claimant was not a malingerer but had a strong work ethic. He did not find Claimant exaggerated his pain or depression.
33. Claimant told Dr. Halikias that it would be too frightening for him to return to work for Defendant. He reported that it was stressful for him to be in small places like elevators since his injury. He also expressed problems with daily living activities and intrusive imagery of the workplace accident. He expressed feelings of worthlessness at having become unemployed for the first time in his life since 8th grade.
34. Claimant also informed Dr. Halikias of his vague recollection of his suicide attempt approximately a year after his thumb injury.
35. There is conflicting evidence as to what help Dr. Halikias gave Claimant during the course of his psychological test battery. At Claimant’s request, when Dr. Halikias administered certain tests, such as the MMPI-2, he read some of the questions to him aloud. This was to account for Claimant’s age and low level of formal education. In addition, because Claimant was experiencing pain in his hand, Dr. Halikias also may have assisted him by filling in the answers to certain questions, all at Claimant’s direction. Dr. Halikias did not believe that the assistance he provided skewed Claimant’s test results in any way.
36. In testimony, Dr. Halikias pointed out that the MMPI-2 does not have an index for PTSD. Although he administered the MMPI, he relied on the Trauma Symptom Inventory for part of his diagnosis.
37. As Dr. Batt had done, Dr. Halikias used the DSM-IV-TR for his diagnosis and concluded that Claimant presented a clear, convincing and robust portrait of a person suffering from PTSD. Unlike Dr. Batt, however, Dr. Halikias felt that vocational rehabilitation would be helpful to Claimant and that he should return to work when he could. Dr. Halikias recommended that Claimant continue with antidepressant medications and weekly mental health services.
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38. At Defendant’s request, Claimant underwent an independent psychological evaluation with Dr. Mann, a psychologist, in December 2007 and February 2008. Dr. Mann administered a battery of tests, including the MMPI-2, the BHI-2 and the VIP tests. Dr. Mann acknowledged that when taking the MMPI-2 test, Claimant expressed significant difficulties due to his limited formal education. Claimant needed additional time to complete the testing procedure, and for part of the testing Dr. Mann utilized an audiotape of the questions so that Claimant would not have to read them himself.
39. Based on his evaluation, Dr. Mann believes that Claimant is at least partially malingering, as reflected by evidence that he is “grossly exaggerating physical and psychological symptoms” for external incentives.
40. Dr. Mann believes that at one time Claimant may have met the diagnosis of PTSD, but that his condition had improved in the year between his initial injury and his suicide attempt. In Dr. Mann’s opinion, Claimant’s separation from his third wife was the intervening factor that caused him to attempt suicide. Dr. Mann reported that Claimant had expressed to him that he was now able to attend antique auctions and do more socializing than he had previously. This led Dr. Mann to conclude that Claimant was recovered from his PTSD. Dr. Mann also noted that Claimant had informed him that he wanted to get on with his life, disengage from psychiatric care and visit with family and friends. As Dr. Batt noted, however, it has always been clear that Claimant does not believe in psychology.
41. In reaching his conclusion that Claimant was recovered from PTSD and now partially malingering, Dr. Mann relied to some extent on Claimant’s self-report that he is doing well and engaging more with people and activities. This seems at odds with his own interpretation of Claimant’s personality profile, in which he described Claimant as someone who attempts to place himself in an overly positive light by minimizing his problems. As to Claimant’s response to other test questions, in which he agreed with such statements as “things have been terrible at home,” that he has problems sleeping and that he has “more concerns than most people,” Dr. Mann’s interpretation was that Claimant purposely had biased his answers in a negative manner.
42. In concluding that Claimant no longer suffered from PTSD, Dr. Mann did not use the DSM-IV-TR criteria. Instead, he used the PK scale contained within the MMPI-2. According to Dr. Mann, Claimant tested in the normal range for PTSD on that scale, meaning that he did not suffer from the disorder.
43. In reaching his diagnosis, Dr. Mann also relied heavily on Dr. Mazur’s report that Claimant had advised him immediately after his suicide attempt that he was depressed about the dissolution of his marriage. Dr. Mann stated that he completely agrees with Dr. Mazur’s conclusion that Claimant’s suicide attempt was not related to his thumb injury. Dr. Mann concluded that Claimant had a major depressive disorder, which was in full remission by February 2008.
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44. During their hearing testimony, both Dr. Mann and Dr. Halikias criticized each other regarding the manner in which each had tested Claimant, whether the test was appropriate for a man of Claimant’s age and education and whether each knew all of the relevant facts regarding Claimant’s history.
45. Claimant’s request for attorney’s fees and costs is unclear.
CONCLUSIONS OF LAW:
1. Claimant bears the burden of proof to establish all of the facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963).
2. To establish a so-called “physical-mental” claim, one involving a mental injury that results from a work-related physical injury, Claimant must prove a causal nexus between a compensable physical injury and a psychological impairment. Merrill v. Town of Ludlow, 147 Vt. 186 (1986); Blais v. Church of Christ of Latter Day Saints, Opinion No. 30-99WC (July 30, 1999).
3. When the injury is obscure and a lay person would have no well-grounded opinion as to causation, expert medical testimony is necessary to lay the foundation for an award. Severinghaus v. Banner Publishing Company, Opinion No. 14-98WC (March 13, 1998).
4. When faced with conflicting expert medical opinions the Department traditionally uses a five-part test to determine which 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).
5. Claimant submits the medical opinions of his treating psychiatrist, Dr. Batt, as well as the medical expert opinion of Dr. Halikias to establish the claim that he suffers from PTSD as a result of his August 2006 work injury. Dr. Mann disagrees. In his opinion, Claimant no longer suffers from PTSD and the psychological problems that led to his August 2007 suicide attempt are related to the dissolution of his third marriage.
6. The parties do not dispute that Claimant suffered a work-related physical injury when he caught his thumb in an industrial machine at work, and the experts agree that this event was indeed “traumatic.” The dispute centers on whether Claimant’s subsequent psychological impairment arose from the accident or from the dissolution of his third marriage.
7. All of the experts are well qualified. Dr. Batt had the longest treating relationship, and as a result was able to observe Claimant over a fifteen-month period. He was definite in his diagnosis of PTSD. Dr. Halikias was similarly definite in his diagnostic conclusions, commenting that Claimant presented clear, convincing and “robust” symptoms of PTSD.
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8. Dr. Mazur, also a treating doctor in this claim, saw Claimant in the hospital immediately after his suicide attempt. Dr. Mazur himself stated that Claimant’s insight was questionable and the records show that Claimant was confused at the time he was hospitalized. Dr. Mazur’s reliance on Claimant’s statements is questionable, therefore. For the same reasons, Dr. Mann’s reliance on these reported statements in forming his opinions is suspect as well.
9. All of the evaluations were comprehensive. Dr. Mann did recite the history and records more thoroughly in his report than the other experts did, but that does not mean his conclusion is correct. He highlighted many of the positive things Claimant stated to him about his current social life and interests and relied on these statements as well as Dr. Mazur’s conclusions regarding the reason for Claimant’s suicide attempt. In doing so, however, he ignored Dr. Batt’s conclusion that Claimant himself does not understand either the seriousness of his illness or the role that psychology could play in his recovery.
10. I am persuaded by the ordeal that Claimant went through regarding the severe injury to his thumb, the circumstances of that event, his isolating behaviors, nightmares and other psychological symptoms that Drs. Batt and Halikias were correct in their diagnosis of PTSD causally related to the August 2006 work injury. I am further convinced that Claimant’s suicide attempt in August 2007 was precipitated by PTSD, not by depression over his divorce.
11. The final issue in dispute is Defendant’s claim that the psychological injury is not compensable because Claimant’s suicide attempt was willfully intended. Defendant claims that under 21 V.S.A. §649, compensation cannot be awarded for an injury that is caused by an employee’s “willful intention to injure himself.” In response, Claimant argues that his suicide attempt did not amount to a willful voluntary choice and therefore should not bar his right to workers’ compensation benefits.
12. Claimant cites to McKane v. Capital Hill Quarry Co., 100 Vt. 45 (1926), in support of his argument. The court in that case distinguished between a suicide that was a “voluntary, willful choice, with knowledge of the purpose and physical effect of the act,” and one that resulted from “an uncontrollable impulse or in a delirium of frenzy.” Id. at 47. The court found that a suicide that fit within the former category would not be compensable, but one that met the latter description would be. Applying that reasoning here, Claimant argues that his suicide attempt more properly fits the latter categorization.
13. This Department previously has noted that the continued viability of the court’s reasoning in McKane is questionable given modern developments in both workers’ compensation law and the study and treatment of mental illness. Estate of Fatovich v. Burlington Free Press, Opinion No. 19-97WC (July 29, 1997). The critical inquiry is not whether a suicide can be said to have been planned rather than impulsive. Rather, the key question is simply whether a subsequent injury – here, a suicide attempt – flowed naturally from the original compensable injury – here, Claimant’s thumb injury and resulting PTSD. If it did, then it too should be found compensable. See generally, 2 Larson’s Workers’ Compensation Law, §§38.01-38.05 (stating that most jurisdictions have turned away from the type of analysis espoused in McKane in favor of the more modern causal connection analysis).
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14. In Fatovich the Commissioner determined that the claimant’s suicide was not compensable because it arose from an organically caused depression rather than from a work-related injury or condition. In contrast, in the current claim I have determined that the PTSD from which Claimant suffered as a result of his work-related thumb injury was what led to his suicide attempt. The causal connection has been established, from Claimant’s thumb injury to his PTSD to his suicide attempt to his current mental state. The suicide attempt was not an intervening cause and does not bar Claimant from continuing workers’ compensation coverage.
15. As Claimant has prevailed, he is entitled to an award of costs and attorney’s fees pursuant to 21 V.S.A. §678. The invoice submitted by his attorney is unclear, however, as to the total amount requested. Claimant’s attorney shall have thirty days from the date of this decision to resubmit his request.
ORDER:
Based on the foregoing findings of facts and conclusions of law, Claimant’s claim for workers’ compensation benefits is GRANTED. Defendant is hereby ORDERED to pay:
1. Temporary total disability benefits until Claimant either reaches an end medical result for his psychological injury or returns to work, whichever occurs first;
2. Medical benefits covering all reasonably necessary medical services and supplies causally related to Claimant’s compensable psychological injury, including payment for the hospitalization and treatment following Claimant’s suicide attempt;
3. Costs and attorney’s fees in an amount to be determined in accordance with Conclusion of Law No. 15 above.
DATED at Montpelier, Vermont this 13th day of May 2009.
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

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