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Catherine Heller v. Bast & Rood Architects (May 9, 2013)

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Catherine Heller v. Bast & Rood Architects (May 9, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Catherine Heller Opinion No. 14-13WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Bast & Rood Architects
For: Anne M. Noonan
Commissioner
State File No. T-12409
OPINION AND ORDER
Hearing held in Montpelier, Vermont on March 11, 2013
Record closed on April 11, 2013
APPEARANCES:
Frank Talbott, Esq., for Claimant
Robin Ober Cooley, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant entitled to additional permanent partial disability benefits referable to
her January 2003 compensable work injury?
2. If yes, what is the extent of the additional permanent impairment she has
suffered?
3. Is Claimant entitled to reimbursement of Dr. Harvie’s evaluation charges as a
medical expense under 21 V.S.A. §640(a)?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit IA: Medical records
Joint Exhibit II: Medical records
Claimant’s Exhibit 2: Curriculum vitae, Keith Harvie, D.O.
Claimant’s Exhibit 3: Independent medical evaluation invoice, 2/28/2012
Defendant’s Exhibit A: Curriculum vitae, Thomas Grace, M.D.
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CLAIM:
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Medical benefits pursuant to 21 V.S.A. §640(a)
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
her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the
Department’s file relating to this claim. Judicial notice also is taken of the
commissioner’s prior decision in Heller v. Bast & Rood Architects, Opinion No. 32-
10WC (October 5, 2010), aff’d, Vermont Supreme Court Docket No. 2010-405 (May
Term, 2011).
Claimant’s January 2003 Work Injury
3. Claimant worked for Defendant’s architectural firm. On January 2, 2003 she slipped and
fell on the icy driveway while maneuvering to get into her car at the end of her workday.
In her First Report of Injury, Claimant described a backwards fall that “slammed” her
onto the ice, causing injury to her back, neck, shoulders and hips.
4. Although it disputed the causal relationship between Claimant’s fall and some of her
subsequent complaints, Defendant accepted as compensable those referable to her lower
back. It did so notwithstanding that she had a prior history of treatment for lower back
pain following motor vehicle accidents in 1986 and 2001. In fact, x-ray studies
undertaken some years before her 2003 work injury documented degenerative changes
not only in her lumbar spine, but in her cervical and thoracic spine as well.
5. In 2010 the parties litigated the compensability of Claimant’s other complaints, which
included pain in her cervical and thoracic spine, her knees and her hips. Following a
formal hearing, the Commissioner determined that only the bursitis in Claimant’s left hip
was causally related to the 2003 fall; her other complaints were all referable to
preexisting injuries or conditions.
6. The parties also litigated the question whether proposed prolotherapy injections
constituted reasonable treatment for Claimant’s lower back injury. The Commissioner
determined that they were.
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Claimant’s 2004 and 2005 Permanency Ratings
7. Claimant was first determined to have reached an end medical result for her compensable
lower back injury in June 2004, following an independent medical examination with Dr.
Grace, a board certified orthopedic surgeon retained by Defendant for this purpose.1 Dr.
Grace diagnosed Claimant with grade 1 spondylolisthesis, a degenerative condition, at
the L4-5 level of her lumbar spine. Based solely on this diagnosis, in accordance with the
AMA Guides to the Evaluation of Permanent Impairment (5th ed.), he determined that
Claimant had suffered a seven percent whole person permanent impairment referable to
her 2003 work injury. Notably, during this examination Claimant demonstrated 70
degrees of lumbar spine flexion (forward bending) and 25 degrees of extension
(backwards bending). According to the AMA Guides, these measurements were
insufficient to qualify her for any additional impairment based on reduced range of
motion.
8. Dr. Grace next examined Claimant in August 2005. This time he calculated her
permanent impairment at ten percent whole person. The increase was attributable to two
factors. First, consistent with another independent medical examiner’s determination, Dr.
Grace added one percent impairment for documented degenerative disc disease at L2-3,
which he concluded was referable to Claimant’s work injury along with the degeneration
he previously had rated at L4-5. Second, because Claimant now was demonstrating only
40 degrees of lumbar flexion (down from 70 degrees in 2004), under the AMA Guides she
now qualified for an additional two percent impairment on account of her reduced range
of motion, which Dr. Grace determined was attributable to the work injury as well.
9. In June 2007 the Department approved the parties’ Agreement for Permanent Partial
Disability Compensation (Form 22), by the terms of which Defendant agreed to pay
permanency benefits in accordance with Dr. Grace’s August 2005 impairment rating. In
the Agreement, the parties described the compensable injury as “degenerative disc
disease and related symptoms.”
Claimant’s More Recent Treatment and Permanency Ratings
10. Following the Commissioner’s determination in her favor as to the reasonableness of
prolotherapy injections, Finding of Fact No. 6 supra, in 2010 Claimant resumed
treatment for her compensable lower back condition. Between January and April 2011
she underwent both lumbar epidural and facet injections, the purpose of which was
concurrently diagnostic – to help differentiate her spinal pathology from her hip
pathology – and therapeutic. In June and July 2011 she underwent prolotherapy
injections, which seemed to relieve some of the muscular dysfunction in her lower back,
at least for a time. For the most part, however, her pain persisted.
11. In February 2012 Claimant presented to Dr. Harvie, a board certified osteopath and
orthopedic surgeon, for evaluation. Claimant testified that her purpose for doing so was
1 Dr. Grace first evaluated Claimant in January 2004, but determined that she was not yet at end medical result. For
that reason, he estimated but did not conclusively rate her permanent impairment at that time.
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to gain a better understanding of how the dysfunction in her lower back was evolving and
to learn whether a surgical solution might ultimately become necessary. I find that it was
appropriate for Claimant to seek out Dr. Harvie for this purpose, and also that it was
necessary for him both to review her voluminous medical file and to conduct a thorough
examination in order to provide well-reasoned and considered medical advice.
12. However, it is apparent from her attorney’s referral letter that the purpose of Dr. Harvie’s
evaluation was also to render an opinion regarding a variety of other medical and legal
issues facing Claimant, only some of which were related to her compensable lower back
condition. For example, in addition to soliciting a current permanent impairment rating
referable to her lower back, the attorney also asked Dr. Harvie to respond to questions
concerning the dysfunction in her right hip and right and left knees, all conditions that the
Commissioner previously had decided were not compensable. From reviewing Dr.
Harvie’s report and formal hearing testimony, I find that he likely devoted at least onethird
of his time to issues that were unrelated to Claimant’s compensable injury.
13. Dr. Harvie rated the extent of Claimant’s current whole person impairment referable to
her lumbar spine at 16 percent.2 As compared with the ten percent impairment that Dr.
Grace found in 2005, the difference lies in Claimant’s inability to extend backwards
during Dr. Harvie’s examination. According to the AMA Guides, this range of motion
deficit alone qualified her for an additional seven percent impairment. Using the AMA
Guides’ combined values chart, Dr. Harvie combined this impairment with (a) two
percent impairment for deficits in flexion; and (b) seven percent diagnosis-related
impairment to arrive at his final rating.
14. Dr. Grace also rendered an updated impairment rating, after conducting another
independent medical examination in April 2012.3 He too found that Claimant’s range of
motion had decreased since his 2005 exam, although the particulars were somewhat
different from Dr. Harvie’s.4 Dr. Grace’s final whole person impairment rating referable
to the lumbar spine was fifteen percent. The one-percent difference between the two
ratings relates to the manner in which the AMA Guides’ combined values chart was
applied; I find that Dr. Grace’s methodology was the correct one.
2 Dr. Harvie also rated a three percent impairment referable to Claimant’s compensable left hip condition.
Permanency benefits for this impairment were previously paid and are not currently at issue.
3 Dr. Grace also evaluated Claimant in 2007, for reasons unrelated to her lower back injury.
4 Whereas Dr. Harvie measured 45 degrees of flexion and zero degrees of extension in his evaluation, Dr. Grace
measured only 30 degrees of flexion, but ten degrees of extension. Added together, in both cases the resulting
impairment attributable to range of motion deficits is nine percent.
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Expert Opinions as to Causation of Increased Impairment
15. Diagnostic imaging studies have documented that the degenerative disease in Claimant’s
lumbar spine has worsened in the years since Dr. Grace’s 2005 permanency evaluation.
Both Dr. Harvie and Dr. Grace attribute the increased range of motion deficits they
measured, and consequently Claimant’s increased permanent impairment, to the
progression of this condition. Where the two doctors differ is as to the role, if any, that
Claimant’s 2003 work injury has played in the process.
16. According to Dr. Harvie, a backwards fall onto the buttocks, such as the one Claimant
described, can result in significant trauma to the spine. In his opinion, that event likely
has had a “profound” impact on the rate at which the preexisting degenerative disease in
her lumbar spine has progressed.
17. Other factors likely have played a role in the progression of Claimant’s degenerative
disease as well. Dr. Harvie acknowledged that weight gain, lack of exercise and core
strength, family history and the aging process in general all have probably contributed.
He admitted that it would be impossible to quantify the extent to which any one factor
has caused the disease to accelerate. As a result, he could not break down the increase in
Claimant’s permanent impairment between 2005 and 2012 to that portion attributable to
trauma from her fall and those portions attributable to other causes.
18. Because Claimant’s condition is by its very nature a degenerative process, it likely will
continue to progress in the years to come. Notably, Dr. Harvie predicted that if she were
to lose weight she might be able to decrease the rate at which her range of motion
worsens over time. If she does not do so, her permanent impairment likely will continue
to increase.
19. Dr. Grace concurred with Dr. Harvie’s analysis as to the many factors that have
contributed to cause the degeneration in Claimant’s lumbar spine to worsen over time,
including prior injury, body mass, age and genetics. He acknowledged that the 2003 fall
likely played a role in the process. However, he disagreed that trauma from the fall
reasonably can be held accountable at this point for whatever ongoing degeneration has
occurred. Instead, he pointed to the aging phenomenon as the most likely causal factor.
With age come increased joint stiffness as well as arthritic degeneration, and therefore
decreased range of motion. In Dr. Grace’s opinion, it is difficult to speculate whether
Claimant would have exactly the same range of motion in her lumbar spine now even if
she had not suffered her 2003 work injury, but certainly she would have some additional
deficits as compared with 2005.
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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).
Modification of Permanency Award Based on “Change in the Conditions”
2. Claimant here seeks additional permanent partial disability benefits on the grounds that
her work-related lower back injury has progressed to the point of causing further
permanent impairment as compared to what was rated and paid in 2005. Defendant
agrees that her impairment has increased, but disputes both the legal and factual basis for
any additional award of benefits.
3. Vermont statute allows for an award of workers’ compensation benefits to be modified at
any time within six years from the date of the original award “upon the ground of a
change in the conditions.” 21 V.S.A. §668; see, e.g., Estate of Richardson v. Regular
Veteran’s Association Post #514, Opinion No. 04-11WC (February 16, 2011). The
statutory language does not exclude permanency awards from modification. However,
the very nature of such awards demands that a request for modification be closely
scrutinized. A permanency award is, after all, presumed in most cases to be permanent.
4. “[An] award for permanent incapacity looks to the future to compensate for the probable
reduction in earning power that will attend [an injured worker] for the remainder of his
working life.” Orvis v. Hutchins, 123 Vt. 18, 22 (1962). Thus, while temporary
disability benefits are payable during the healing process, permanency benefits do not
become due until the injured worker “is as far restored as the permanent character of his
injuries will permit.” Id. at 24. At this point, the worker is deemed to have reached the
“end result” of his or her physical recovery period. Bishop v. Town of Barre, 140 Vt.
564, 571 (1982).
5. Notably, by delineating the point at which the injured worker has recovered as much
function as possible following a work-related injury, the concepts of end medical result
and permanency focus on the extent to which a compensable injury or condition has
improved, not the extent to which it might continue to worsen. See Workers’
Compensation Rule 2.1200 (defining “end medical result”).
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6. Recognizing that every award of permanent partial disability benefits thus encompasses
the possibility that a claimant’s condition still might continue to deteriorate even after an
end medical result is declared, the question becomes, under what circumstances should
modification on the grounds of “a change in the conditions” be granted?
7. One obvious requirement is that any change in an injured worker’s condition that results
in an increased permanent impairment must be shown to have been caused by the work
injury rather than non-work-related factors. Establishing this causal nexus is as necessary
in the context of modification as it is in the context of an initial award. Egbert, supra;
see, e.g., Marshall v. State of Vermont, Vermont State Hospital, Opinion No. 01-11WC
(January 25, 2011).
8. The interrelationship between end medical result and permanent partial disability dictates
a second requirement as well. For the same reason that a claimant cannot be awarded
permanency benefits initially until curative treatment has concluded and the condition has
stabilized, so too a prior award should not be modified unless additional curative
treatment has been undertaken and an end medical result reached. Otherwise, the
“permanent” aspect of the award will be lost, and piecemeal recoveries might result.
9. Considering the second requirement first, I conclude in this claim that the treatment
Claimant has undergone since 2010, including evaluations and referrals related to the
various injections referred to in Finding of Fact No. 10 supra, has been curative rather
than palliative in nature. As the credible medical evidence established, the purpose of
these treatments was both diagnostic and therapeutic. Prior decisions have routinely held
likewise. See, e.g., Luff v. Rent Way, Opinion No. 07-10WC (February 16, 2010); Abare
v. Ben & Jerry’s, Opinion No. 44-08WC (November 5, 2008).
10. As to the first requirement – the causal relationship between Claimant’s 2003 work injury
and her worsened permanent impairment – the parties presented conflicting expert
testimony. 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 patientprovider
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).
11. Neither of the medical experts here was a treating physician. However, Dr. Grace had the
benefit of conducting numerous independent medical examinations in the years since
Claimant’s 2003 injury, whereas Dr. Harvie only examined her once, some nine years
later. Given that the central issue in dispute involves the manner in which Claimant’s
condition has evolved over time, I conclude that this factor lends added credibility to Dr.
Grace’s opinion.
12. Beyond that, I conclude that Dr. Harvie’s opinion suffers from a lack of objective
support. He asserted that the 2003 work injury was still a factor contributing to the
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ongoing degeneration in Claimant’s lumbar spine, but acknowledged that there was no
way to quantify to what extent this was so. He also admitted that she could control the
rate at which her range of motion would continue to decline (and thus the extent to which
her permanent impairment would continue to increase) through diet and exercise. The
logical inference is that such non-work-related factors are more likely driving Claimant’s
current circumstance, not an injury that occurred more than nine years ago.
13. In contrast, considering all of the factors that have played a role as Claimant’s condition
has continued to worsen, Dr. Grace credibly concluded that the natural aging process was
the most likely cause of her increased permanent impairment. In doing so, he recognized
how speculative it would be to predict the extent to which the degeneration in Claimant’s
lumbar spine would have progressed had her work injury not occurred. I agree.
14. Claimant points to the language of the parties’ previously approved permanency
agreement, in which the compensable injury was described as “degenerative disc
disease,” as the basis for imposing liability on Defendant for her increased permanent
impairment. I cannot accept this interpretation. That Claimant suffered from preexisting
degeneration in her lumbar spine was never disputed. It would make no sense to ascribe
its entire existence to her 2003 fall.
15. Though perhaps drafted inartfully, the injury Defendant accepted as compensable was not
the degenerative condition in Claimant’s lumbar spine itself, but rather the acceleration or
aggravation of that condition. By virtue of the permanency benefits it paid in 2005,
Defendant already has compensated Claimant for that compensable consequence. At
some point, the causal relationship between her work injury and the continued
progression of her disease becomes too attenuated, however. That point has now been
reached.
16. I conclude that Claimant has failed to sustain her burden of proving the extent, if any, to
which her 2003 work injury has caused her permanent impairment to increase since her
2005 permanency award.
Coverage for Dr. Harvie’s February 2012 Evaluation
17. Having previously found that at least one-third of Dr. Harvie’s February 2012 evaluation
was directed at issues unrelated to Claimant’s compensable injury, Finding of Fact No.
12 supra, I allocate one-third of the cost of that examination, or $1,695.00, to those
issues. The remaining two-thirds, or $3,441.00, I conclude are properly allocated to
reasonable medical services provided as treatment for Claimant’s compensable injury, for
which Defendant is responsible under 21 V.S.A. §640(a).
Costs and Attorney Fees
18. As Claimant has failed to substantially prevail on her claim for benefits, she is not
entitled to an award of costs and attorney fees.
ORDER:
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Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for additional
permanent partial disability benefits referable to her January 2003 compensable injury is hereby
DENIED. Defendant is hereby ORDERED to pay:
1. Medical benefits totaling $3,441.00 in accordance with 21 V.S.A. §640(a).
DATED at Montpelier, Vermont this 9th day of May 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.

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

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Robert Brown v. W. T. Martin Plumbing & Heating (April 15, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Robert Brown Opinion No. 14-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
W.T. Martin Plumbing & Heating
For: Patricia Moulton Powden
Commissioner
State File No. Y-52948
OPINION AND ORDER
Hearing held in Montpelier, Vermont on November 25, 2009
Record closed on January 5, 2010
APPEARANCES:
J. Norman O’Connor, Esq., for Claimant
Jeffrey Spencer, Esq., for Defendant
ISSUE PRESENTED:
What is the appropriate permanent impairment rating attributable to Claimant’s August 30, 2006 work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Deposition of Robert Giering, M.D., taken on November 3, 2009
Claimant’s Exhibit 2: Curriculum vitae, Todd Lefkoe, M.D.
Defendant’s Exhibit A: Dr. Wieneke reports, 3/17/08 and 5/20/09
CLAIM:
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim. Judicial notice also is taken of the AMA Guides to the Evaluation of Permanent Impairment (5th ed.)(the “AMA Guides”).
3. Claimant worked as a master plumber for Defendant, a plumbing contractor. On August 30, 2006 he slipped and fell down a flight of stairs at a job site. Claimant injured his right shoulder in the fall.
4. Claimant suffered a right shoulder rotator cuff tear, which Dr. Nofziger, an orthopedic surgeon, surgically repaired in January 2007. Thereafter, Claimant underwent a course of physical therapy. His recovery was complicated by adhesive capsulitis as well as symptoms indicative of complex regional pain syndrome (CRPS).
5. Complex regional pain syndrome is a disorder of the sympathetic nervous system. One of the hallmark characteristics of the syndrome is burning pain that does not follow a single nerve root distribution but rather is generalized throughout the affected limb. Beyond that general characteristic, the signs and symptoms of CRPS can be grouped into four general categories:

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

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M. M. v. State of Vermont, Department of Corrections (May 13, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
M. M. Opinion No. 20-08WC
By: George K. Belcher
v. Hearing Officer
State of Vermont, For: Patricia Moulton Powden
Department of Corrections Commissioner
State File No. U-11445
Hearing held on February 8, 2008 in Montpelier, Vermont.
Record closed on March 18, 2008.
APPEARANCES:
Heidi Groff, Esq., for the Claimant
Nathaniel K. Seeley, Esq., for the Defendant
EXHIBITS:
Pre-Trial Stipulation dated February 8, 2008
Joint Medical Exhibit: Medical Records of the Claimant
Claimant’s Exhibit A: Chart of Medical Opinions
Claimant’s Exhibit B: Curriculum Vitae of Dr. Mark Bucksbaum
Defendant’s Exhibit 1: Letter from K. Donahue to Mr. Seeley dated January 31, 2008
Defendant’s Exhibit 9: Insurance Claim from Dr. Bucksbaum dated January 25, 2008
ISSUES:
1. What permanent partial disability is the Claimant entitled to as a result of his work-related injury?
2. Is the Claimant entitled to reimbursement for the Functional Capacity Evaluation that was recommended by Dr. Shulman and Dr. Bucksbaum?
3. Is the Claimant entitled to reimbursement for the permanent partial disability evaluation performed by Dr. Bucksbaum (since the Claimant’s treating doctor, Dr. Shulman, does not do PPD evaluations)?
4. Are the Claimant’s chiropractic treatments following Dr. Boucher’s report of November 7, 2006 reasonable and necessary?
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FINDINGS OF FACT:
1. At the time of his injury, the State of Vermont was Claimant’s employer and the Claimant was an employee of the State of Vermont as defined in the Workers’ Compensation Act.
2. The Claimant, Myron Messeck, was born on October 23, 1954. On February 2, 2004, he was working as a corrections officer for the State of Vermont, Department of Corrections. He suffered a workplace injury when an inmate assaulted him. This was a serious assault, which caused injuries to his face, eye socket, and neck.
3. At the time of the assault, the Claimant was moving a prisoner to a lock-down cell when the prisoner struck him with his right arm. The Claimant’s memory of the incident thereafter is poor but he was taken to the Northwestern Medical Center emergency room where he was examined. The examination showed irritated right and left eye, soft tissue swelling, cut and contusion over the right eyebrow. Mr. Messeck complained of double vision (diplopia). A CAT scan was performed which showed a “trace left parietal irregularity, which may be a very tiny SDH [subdural hematoma] versus bony artifact. The CAT scan showed evidence of an internal broken eye socket or sinus cavity. He also had some blurred vision.
4. The Claimant did not return to his job with the Department of Corrections, in large part, because of concerns by medical providers that another head injury would put him at greater risk due to the injuries of the assault.
5. As of the date of the hearing, the Claimant was complaining of neck pain, back pain, headaches, diplopia, impaired lateral vision, impaired memory, impaired concentration and altered speech (speaking in a high-pitched voice). In September of 2007, the Claimant returned to work for the State of Vermont at a Vermont Welcome Center for 32 hours per week.
6. It is not disputed that the Claimant suffered a work-related injury and that his spine, facial nerve, mental functioning, and eyesight were affected by the injury. Causation is not an issue. The issue in the case primarily involves the extent of permanent impairment of the Claimant. On this, the evaluating doctors disagree.
7. Concerning the facial nerve impairment, the doctors did agree that the Claimant’s facial nerve impairment justified a 1% whole person impairment. Concerning the claim that the Claimant’s voice was affected by the injury, there was no expert evidence offered in support of this claim. The other impairments are discussed separately.
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8. The Claimant’s principal medical expert was Dr. Mark Bucksbaum. Dr. Bucksbaum is a medical doctor who is Board Certified by the American Board of Physical Medicine and Rehabilitation, the American Board of Pain Management, and the American Board of Independent Medical Examiners. He is licensed as a medical doctor in the states of Vermont, New York and Maine. See Claimant’s Ex. B. The Defendant’s principal medical expert was Dr. William F. Boucher. Dr. Boucher is a medical doctor who is licensed to practice medicine in Vermont, Maine, and New Hampshire. The bulk of his work is independent medical evaluations but he also maintains a part-time clinical practice. He is board certified in occupational medicine. The Defendant’s psychiatric expert was Dr. Albert M. Druckteinis who is a psychiatrist, medical doctor and juris doctor. He holds medical licenses in Vermont, New Hampshire, Maine, and Florida. He is board certified by the American Board of Psychiatry and Neurology, The American Board of Forensic Psychiatry, and the American Academy of Pain Management. He operates a part-time clinical practice but the bulk of his work is criminal and civil assessments and evaluations. All of the evaluators were equally familiar with the AMA Guides to the Evaluation of Permanent Impairments, 5th edition (hereinafter referred to as “the Guides”). All three experts regularly do evaluations and provide testimony in workers’ compensation cases. None of these three experts were the Claimant’s treating physician. The Claimant’s treating physician, Ned Shulman, MD, does not do permanency ratings.
Visual Impairment
9. The Claimant testified that he had double vision following the injury. He was prescribed prism lenses for his glasses, which appear to have substantially corrected the double vision. Mr. Meesick testified, however, that his left peripheral vision is still blurred and that he has trouble reading in weak light conditions and when the print is small.
10. Dr. Bucksbaum attributed a 10% whole person impairment on account of the Claimant’s vision. He made this assessment based upon a medical record which he interpreted to show an acuity impairment (20/25 right eye; 20/40 left eye; report of Dr. Fazzone dated February 9, 2005, Page 147 of the Joint Medical Exhibit). Dr. Bucksbaum used Table 12-4 of the Guides to calculate a 10% impairment of visual acuity, and Table 12-10 to calculate a ten per cent whole person impairment. (Testimony of Dr. Bucksbaum).1
1 Dr. Bucksbaum’s report of December 8, 2006 indicated that his conclusion as to vision was based on a visual examination of March 16, 2005 of Optimetrics Associates, Inc. That report showed that the corrected vision of the Claimant was 20/13 (right eye) and 20/25 (left eye).
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11. According to Dr. Bucksbaum, even if the Claimant’s visual acuity were normal, the Claimant would be justified in a 10% whole person impairment due to the diplopia, loss of reserve vision capacity and the need for a vision aid device (prism glasses). Under Sec. 12.4b of the Guides, page 298, impairment to vision other than loss of acuity or field of vision (such as double vision) can be given an impairment rating. That section states in part,
If significant factors remain that affect functional vision and that are not accounted for through visual acuity or visual field loss, a further adjustment of the impairment rating of the visual system may be in order. The need for adjustment, however, must be well documented. The adjustment should be limited to an increase in the impairment rating of the visual system (reduction of FVS) by, at most, 15 points.
12. Dr. Bucksbaum concluded that, with the Claimant’s eye examination and his “incompletely controlled diplopia with the use of prism lens, he most closely fits into the entry end of Class 2 of the vision impairment table 12-10”. Joint Medical Exhibit, Page 319.2
13. Dr. Boucher, on the other hand, attributed a 5% whole person impairment for the Claimant’s vision. Dr. Boucher discounted any vision loss due to lack of visual acuity under the Guides because visual acuity is to be measured under the Guides with the “best correction”. See Section 12.2b, Page 282. Dr. Boucher recognized that up to 15 points under the Functional Vision Score can be attributed to diplopia, but he noted that the Claimant’s diplopia was “well rectified with glasses”. His rating of 5% placed the Claimant in the middle of the Class 1 of table 12-10.
14. Dr. Bucksbaum’s use of uncorrected acuity scores does not appear to be consistent with the Guides. His rating 10% whole person impairment without loss of acuity would have required at least a 10 point Functional Vision Score for the diplopia (which would be 10 of the 15 available points).3
Cervical Impairment
15. Dr. Bucksbaum evaluated the Claimant’s neck and determined that he was entitled to 8% whole person impairment based upon Table 15-5 of the Guides. Dr. Bucksbaum did an extensive physical examination of the Claimant and noted that he had asymmetrical loss of range of motion and muscle guarding. The Claimant had a well-documented history of neck pain and headaches following the injury. Dr. Bucksbaum placed the Claimant in the high end of the range of DRE Cervical Category II from Table 15-5 of the Guides because of the neck pain and headaches. He explained that it would be possible to place the Claimant in the low end of this range (5% whole person impairment) and allocate a separate 3% for Occipital Neuralgia. Dr. Bucksbaum felt, however, that it was more efficient to simply place the Claimant at the high end of the range.
2 Dr. Buckbaum continually referred to the prism glasses as “vision enhancements”. The Guides do not support his position.
3 On February 9, 2005, Dr. Fazzone found that the prism lenses improved the vision of the Claimant and that the Claimant “has no, or minimal, double vision.” Page 146 of Joint Medical Exhibit.
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16. Dr. Boucher agreed that the Claimant fit within the same Category II and deserved a rating between 5-8%, but he placed him at 5% because “…the examinee’s cervical condition has a minimal effect on activities of daily living.”
17. The Claimant testified that he never had neck pains or problems before this injury. He now has neck pain, which radiates up into his head and causes headaches. The headaches sometimes become so severe that he develops an upset stomach. Frequently in the medical records, the Claimant’s neck pain and headaches were mentioned as significant obstacles to his ability to work and function.
Lumbar Impairment
18. The Claimant noticed lower back problems during the healing process of the other injuries. He had never had lower back problems before. He notices his lower back has pain when he sits for long periods of time or when he walks on uneven ground.
19. Dr. Bucksbaum examined the Claimant’s lower back. Dr. Bucksbaum’s examination showed abnormal range of motion in the Claimant’s lower back, and an asymmetrical range of motion. See page 313, Joint Medical Exhibit. In addition, he noted pain on palpation. The Claimant had a positive “Jolt test”, pain while walking on his toes, and “postural sway difficulty”. These indicators led Dr. Buckbaum to conclude that the Claimant had chronic mechanical low back pain caused by the injury and that the Claimant was justified in a 5% whole person impairment from Table 15-3 of the Guides for this problem.
20. Dr. Boucher also did an examination of the Claimant’s low back but approached the examination with a “low suspicion” of finding anything. Dr. Boucher measured the Claimant’s range of motion in the lumbar area once, using only one inclinometer instead of three readings using two inclinometers as recommended in the Guides.
21. Dr. Boucher noted that the Claimant’s range of motion was 20 degrees right and left lateral flexion, with normal being 25 degrees. Because the 20% reduction in flexion was equal on both sides, Dr. Boucher’s opinion was that the Claimant’s range of motion was “normal”. Dr. Boucher also noted tenderness in the lower back on palpation. Despite these findings, Dr. Boucher determined that the Claimant’s back condition was “normal” and gave a 0% impairment rating.
22. It was clear from the testimony that Dr. Bucksbaum did a much more thorough examination of the Claimant’s lower back than did Dr. Boucher. Dr. Bucksbaum’s examination was more consistent with the criteria set forth in the Guides.
Mental Condition
23. The Claimant complained of memory problems following the injury. His ability to focus seemed to be less. He had problems sleeping. He was worried that he might leave a store or public place and forget to take his daughter with him, so he always asked that she stay with him in public.
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24. Dr. Bucksbaum diagnosed the Claimant as having Traumatic Head Injury/Post-concussion syndrome. He rated the Claimant as having a whole person impairment of 8% whole person impairment based upon Table 13-6 of the Guides. This table gives a range of whole person impairment from 1% to 14% for impairment related to mental status after evaluating memory, orientation, judgment and problem solving, community affairs, homes and hobbies and personal care. Clearly, Dr. Bucksbaum was rating the Claimant based upon the belief that the Claimant had a subdural hematoma or concussion. See page 319 of Joint Medical Exhibit. Dr. Bucksbaum noted that his assessment of impairment under Chapter 13 was “consistent with a Class II impairment rating under chapter 14; mental and behavioral disorder.” Id. He also emphasized that it was the impairment which was being rated and not the underlying cause, regardless of whether the cause was physiological or emotional.
25. Chapter 13 of the Guides is used to rate impairment of the central and peripheral nervous system. “Chapter 13 provides criteria for evaluating permanent impairment due to documented dysfunction of the brain, cranial nerves, spinal cord, nerve roots, and/or peripheral nerves and muscles.” Page 305 of the Guides.
26. Chapter 14 is used to evaluate the impairment of mental and behavioral disorders. This chapter of the Guides does not include percentage impairments. According to the Guides, “Numerical impairment ratings are not included, however, instructions are given for how to assess an individual’s abilities to perform activities of daily living.” See page 357 of the Guides. “The use of percentages implies a certainty that does not exist.” Page 361 of the Guides.
27. Dr. Drukteinus saw the Claimant for evaluation on February 22, 2005, January 13, 2006, and again on March 30, 2007. Dr. Drukteinus reviewed the medical records of the claimant and he administered various psychological tests. Dr. Drukteinus was doubtful that the Claimant actually suffered a subdural hematoma and was of the opinion that the Claimant did not have a traumatic brain injury or residual post-concussion syndrome. Rather he determined that the Claimant was suffering from anxiety disorder and adjustment disorder with depressed mood. He believed that these conditions were causally related to the injury and that the Claimant was at medical end result.
28. Because the Guides do not use percentages in Chapter 14 assessments, Dr. Drukteinus looked to the Colorado system of rating mental impairments. Under this system of percentage allocation, and, considering that the Claimant’s mental condition was in partial remission, he calculated that the Claimant’s impairment was minimal to mild and that it deserved a rating of 5% whole person impairment. Dr. Drukteinus left open the possibility of an additional award for pain, but felt that the pain question should have been taken into account with the other medical impairment assessments.
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Functional Capacity Examination
29. Dr. Ned Shulman (the primary care physician) recommended to the Department on October 19, 2006 and May 11, 2007 that the Claimant have a Functional Capacity Examination. Pages 257 and 329, Joint Medical Exhibit. Dr. Shulman did not testify in this case as to why he wanted the Claimant to have a functional capacity examination. Before he made these recommendations, Dr. Shulman made a fairly detailed evaluation of the Claimant’s work capacity, including lifting capacity, in a letter dated September 6, 2006. Joint Medical Exhibit, Pages 250-252. The emphasis in his letter was upon his diagnosis of “post traumatic stress disorder”.4 It is unclear in the record why Dr. Shulman felt a functional capacity examination would assist him or the Claimant.
30. Dr. Bucksbaum recommended in his report of December 8, 2006 that the Claimant could benefit from a functional capacity examination. Joint Medical Exhibit, page 320. His recommendation was that an FCE could assist in determining his work tolerances. Dr. Bucksbaum felt that the Claimant’s plan of becoming a commercial truck driver was “likely above his work limits”. Id. Dr. Peyser had determined on August 3, 2006 that, “There is no reason why Mr. Meeseck could not be employed as a truck driver.” Page 243 Joint Medical Exhibit. Dr. Drukteinus came to the same conclusion on April 5, 2007. Page 328, Joint Medical Exhibit. Dr. Todd Faxvog, Chiropractor, also thought commercial driving was feasible, at least for a trial. Page 246, Joint Medical Exhibit.
31. The Commissioner takes judicial notice under Vermont Workers’ Compensation and Occupational Health Rule 7.1800 of the Vocational Rehabilitation forms in the Department’s file. The Claimant was found to be eligible for vocational rehabilitation services on September 8, 2004. On February 28, 2007 Vocational Rehabilitation Counselor, Wayne Sullivan, reported that he and Mr. Meesek had agreed to place the Vocational Rehabilitation file on “suspension” for six months so that the Claimant’s employment status with the State of Vermont could be determined. It appears from the records that the vocational rehabilitation counselor had not requested the FCE, and, in fact, the vocational rehabilitation case was in “suspension” at the time the FCE was performed. See Department File, Wayne Sullivan Voc. Rehab. Report of February 28, 2007. No Individual Written Rehabilitation Plan was ever formulated by the counselor.
32. The Claimant participated in a functional capacity examination on July 20, 2007. He paid the expense of this and would now like this expense ($1,500.00) to be assessed against the employer. The FCE determined that the Claimant had a medium, full-time work capacity. See page 353, Joint Medical Exhibit.
4 This diagnosis was consistently made by Dr. Shulman as late as August, 2007, (Page 362, Joint Medical Exhibit) despite the conclusions by Dr. Drukteinis, Janis M Peyser, PhD, Dr. Steve Sobel, that this diagnosis did not apply to the Claimant. See pages 179, 249, and 327, Joint Medical Exhibit.
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Ongoing Chiropractic Care
33. Dr. Shulman recommended in July of 2005 that the Claimant see a chiropractor. Page 301, Joint Medical Exhibit. The Claimant has regularly seen Dr. Todd Faxvog about every two weeks. During the visits he regularly has a manipulative adjustment and moist heat packs. He also receives a massage after the chiropractic treatment. The Claimant testified that the adjustments and massages help him with coping with his neck and back pain and doing his activities. The chiropractic treatments seemed to help him with his headaches as well. When he must miss an appointment, he finds that it is very difficult to last until the next appointment.
34. Dr. Bucksbaum testified that the chiropractic treatment was palliative and helpful to the Claimant in coping with his pain without medication. His opinion was that this treatment was reasonable. Dr. Shulman originally recommended the chiropractic treatments in July of 2005. His medical notes of May 18, 2006 indicated that Dr. Shulman thought that the Claimant will “most likely need to continue treatment such as chiro indefinitely.” Page 231, Joint Medical Exhibit. On May 22, 2006 Dr. Shulman’s notes state that, “I am aware he continues with Dr. Faxvog on weekly basis for correction and ideal resolution of cephalgia.” Page 232, Joint Medical Exhibit. Neither Dr. Bucksbaum or Dr. Shulman addressed the need for massages as a separate, on-going treatment.
35. Dr. Boucher testified that the chiropractic treatments and massages probably made the Claimant feel better immediately afterward, but that the treatments did not improve function and would not be missed if they were discontinued for several months. In his report at page 271 of the Joint Medical Exhibit, Dr. Boucher stated,
As regards to the examinee’s neck pain, further chiropractic adjustments are not indicated. Studies have shown that manipulative therapies can be helpful in the acute phase of injury, but are not helpful in the chronic situation. In this case, the examinee has no ongoing benefit (i.e. improvement) from current chiropractic adjustments and further adjustments are neither reasonable or necessary.
36. Dr. John Peterson, D.O. did a medical evaluation of the Claimant on October 31, 2005. His report questioned the frequency of the chiropractic treatments but acknowledged that the Claimant seemed to benefit from them and that they might be serving a “palliative” purpose. Page 208, Joint Medical Exhibit.
Costs and Attorneys Fees
37. The Claimant incurred litigation costs in this matter of $1,201.00. This amount excludes Dr. Bucksbaum’s permanency assessment which is dealt with in paragraph 49 and it does not include the $1,500.00 paid for the functional capacity examination. The Claimant has entered a contingent fee agreement with his counsel calling for attorney’s fees of 25% of the gross award.
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CONCLUSIONS OF LAW:
1. In Worker’s Compensation cases the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963). The claimant must establish by sufficient credible evidence the character and extent of the injury and disability as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984).
2. Under Vermont practice, impairments to various body parts and functions are rated pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment. 21 VSA Sec. 648(b); Workers’ Compensation Rule 11.2210. The application of the Guides in this case is a complex matter which can be confusing at times, even to the experts. The experts in this case agreed on only one of the claims of impairment: the facial nerve impairment.
3. Where the claimant’s injury is obscure, and the layman could have no well-grounded opinion as to its nature or extent, expert testimony is the sole means of laying a foundation for an award for both compensability issues as well as the extent of the award sought. Lapan v. Berno’s Inc., 137 Vt. 393 (1979). The Claimant’s complaint concerning his voice alteration must be denied since no expert testimony was offered to support it.
4. When choosing between conflicting medical opinions, the Department has looked at several factors: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03 WC (Sept. 17, 2003).
5. Here Drs. Bucksbaum and Boucher have similar experience, education, and history with the Claimant. Both appear to have examined all the pertinent records.
6. Concerning the vision impairment, I find that Dr. Boucher offered the most clear and thorough analysis of the vision impairment. His rating of a 5% whole person impairment for vision loss was more consistent with the language of the Guides, including the use of corrected vision capability.
7. Concerning the cervical impairment, I find that Dr. Bucksbaum’s analysis was more persuasive since he gave due consideration to the Claimant’s headaches and pain. Dr. Boucher seemed to downplay the continued pain and neck soreness which appears constantly through the medical records and which was never seriously questioned as to its veracity. Dr. Buckbaum’s rating of 8% whole person impairment is more thorough and supported.
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8. Concerning the lumbar impairment, I find that Dr. Bucksbaum’s examination was significantly more thorough than that of Dr. Boucher. The examination provided a basis for Dr. Bucksbaum’s opinion which makes his opinion the more persuasive. His rating of 8% to the lumbar spine is accepted.
9. Concerning the evaluation of mental impairment, I find that Dr. Drukteinus had more information due to his examination of the Claimant at three different times over a longer period of time. Moreover, his diagnosis of adjustment disorder and anxiety disorder was supported by other evaluations and was more credible. I find that the qualifications and experience of Dr. Drukteinus in rating a mental or neurological impairment is superior to that of Dr. Bucksbaum. Dr. Drukteinus convincingly refuted Dr. Bucksbaum’s diagnosis of traumatic brain injury/post concussion disorder. Dr. Drukteinus’ rating of a 5% whole person impairment is the more cogent assessment. The Department has recognized the Colorado system for the purpose of assigning an impairment percentage to mental disorders. See, e.g. Bodell v. Webster Corporation, Opinion No. 62-96WC (October 22, 1996), Sargent v. Town of Randolph Fire Department, Opinion No. 37-02WC (August 22, 2002).
10. The various impairments are combined pursuant to Workers’ Compensation Rules 11.2200, 11.2300, and the Combined Values Chart of the Guides. The vision impairment of 5%, plus mental impairment of 5%, plus nerve impairment of 1% equal 11% whole person impairment, times 405 weeks, to equal 44.55 weeks. The spine impairment is: 8% cervical impairment, plus 5% lumbar impairment, for a total of 13% whole person impairment, times 550 weeks, to equal 71.5 weeks. The total permanent partial impairment award is 116.05 weeks of benefits.
11. The Claimant asks that the expense of Dr. Bucksbaum’s permanency assessment be paid by the Defendant. According to Workers’ Compensation Rule 11.2400,
It shall be the employer’s responsibility to pay for at least one permanency examination and impairment rating from the claimant’s treating physician, notwithstanding its decision to obtain a rating from another medical examiner as well if it so desires. All impairment ratings received by the employer shall be copied to the claimant or [to] his or her attorney. At the commissioner’s discretion, the employer may be ordered to pay for additional permanent impairment evaluations.
12. Since Dr. Shulman did not do permanency evaluations, it made sense for someone with familiarity with the Guides to do such an evaluation. Both Dr. Bucksbaum and Dr. Boucher agreed that a thorough record review and examination of the Claimant would be necessary for an assessment of permanent impairment. The rule’s reference to “treating physician”, should not bar the Claimant from having at least one evaluation paid for by the employer which is independent from the employer’s own expert. The Commissioner has, on occasion, exercised her discretion to order that such evaluations be paid for by the employer. See Sanz v. Collins, Opinion No. 25-05 WC (April 26, 2005). In this case it is appropriate for the employer to pay for Dr. Bucksbaum’s assessment ($2,160.00). The Commissioner approves it, in her discretion, for payment by the Defendant.
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13. The Claimant also asks that the Defendant pay for the functional capacity examination. Although the Claimant’s treating physician recommended that such an examination be done, it was not proven that this was needed for treatment. In fact, it is unclear why it was needed at all. The Claimant had been cleared by most of the evaluators to do the job of truck driver. Although, Dr. Bucksbaum questioned that conclusion, he was evaluating the physical impairment of the Claimant and he was not structuring an employment plan.
14. The Claimant has cited no express authority by which the Defendant can be ordered to pay for a functional capacity examination. Such examinations are often ordered as part of a vocational rehabilitation plan, but in this case the vocational rehabilitation program was “suspended” with the approval of the Claimant.
15. The Commissioner has concern that if Employers are to be charged with the expense of functional capacity examinations, then the necessity for such an examination should be shown as a clear medical purpose or as part of a vocational rehabilitation assessment/plan as contemplated by the statute. 21 VSA Sec. 641. Otherwise, such examinations might become a routine tactic in litigation preparation. In this case, there was no clear medical need for the functional capacity examination. There was no evidence that the vocational rehabilitation counselor asked for this evaluation. The Defendant should not be charged for it. Other facts in other cases might justify such an order, but not here.
16. The Claimant has shown through his own testimony, the testimony of Dr. Bucksbaum, and the report of Dr. Peterson, that the ongoing chiropractic treatments have a beneficial, palliative affect. They benefit the Claimant by relieving his pain, without the need for additional medication. They assist in his maintenance of function. They are recommended by the treating physician, Dr. Shulman. Under prior rulings of the Commissioner, continuing chiropractic care may be ordered when recommended by persuasive medical authority. See Forrest v. Rockingham School District, Opinion No. 30-96 WC (May 16, 1996), but see also Burnah v. Carolina Freight Carriers, Opinion No. 37-98 WC (June 28, 1998). The weight of the evidence in this case is in favor of the compensability of such treatments as a palliative measure.
17. The Claimant seeks costs which are mandatory under 21 VSA Sec. 678. (The costs allowed in this case do not include Dr. Bucksbaum’s permanency assessment since that is being awarded under a different rule and costs do not include the cost of the FCE since that has been determined to be unrelated to this litigation and not recoverable under other provisions.) Recoverable costs are $1,201.00.
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18. An award of interest is mandatory under 21 VSA Sec. 664 from the date on which the employer’s obligation to pay compensation began. The evidence does not reflect the specific amount of the chiropractic bills, nor the amounts paid by the Claimant or his insurer. Likewise the dates upon which permanent partial disability payments have become due is unclear from the record. Under the statute I conclude that the Defendant is obligated to reimburse Claimant for any amounts he paid, along with interest at the statutory rate from the date of payment forward. The defendant is obligated to reimburse any third party payors as well, including interest charges or other late payment penalties assessed by them. To the extent that the Claimant is entitled to permanent partial disability benefits which were due according to this order but which have not yet been paid, the Defendant is obligated to pay interest from the due date to the date of payment.
19. In the discretion of the Commissioner, the prevailing party may be awarded “reasonable” attorney fees. 21 VSA Sec. 678 (a). Rule 10.1000 Vermont Workers’ Compensation and Occupational Health Rules. The Commissioner has discretion as to whether to base an award of attorney fees on either an hourly or contingency basis. Rule 10.1200 Vermont Workers’ Compensation and Occupational Health Rules. The Claimant prevailed in this formal proceeding on four of the seven issues presented (lumbar spine impairment, cervical spine impairment, permanency rating recovery, and chiropractic care). While counsel for the Claimant submitted a copy of the contingency fee agreement, she did not submit any evidence of her itemized time. In past cases, the Commissioner has weighed various factors in making determinations of reasonableness of attorney fees including the difficulty of the issues involved, the results achieved, the time and effort expended and whether the claim for fees is proportional to the efforts of the attorney. See Estate of Lyons v. American Flatbread, Opinion No. 36A-03 WC. Without some evidence as to the time and effort expended, the Commissioner cannot in this case make a reasoned decision as to the reasonableness of attorney fees. Accordingly, the record should remain open for the Claimant to submit such evidence. See Estate of Roland Pion v. Vermont Asbestos Group, Inc. Opinion No. 02R-07 WC.
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ORDER:
Therefore, based upon the foregoing findings of fact and conclusions of law, the Commissioner determines that the Claimant’s claim for workers’ compensation benefits, is approved in part and the Defendant is ORDERED to pay:
1. Permanent Partial Impairment benefits of 11% whole person impairment not related to the spine (vision 5%; facial nerve 1%; mental condition 5%) and spine impairment of 13% whole person impairment (8% cervical and 5% lumbar) for a total of 116.05 weeks of permanent partial disability benefits;
2. Dr. Bucksbaum’s permanency assessment cost of $2,160.00;
3. Litigation costs of $1,201.00;
4. Unpaid chiropractic bills;
5. Interest upon any of the items in paragraphs 1, 2, and 4 at the legal rate from the date the charges were incurred as set forth in paragraph 55 above;
6. Claimant’s attorney may submit to the Department with a copy to the Defendant, within 30 days of the date of this order, an itemized statement of the time expended and the work performed. The Defendant shall have 10 days from the date of receipt to file any objection to the submission. The Commissioner will then act upon the issue of attorney fees.
Dated at Montpelier, Vermont this 13th day of May 2008.
____________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. Sec. 670, 672.

M. C. v. Rock of Ages (July 21, 2006)

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

M. C. v. Rock of Ages (July 21, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
M. C. Opinion No. 32-06WC
By: Margaret A. Mangan
v. Hearing Officer
Rock of Ages For: Thomas W. Douse
Acting Commissioner
State File No. U-07763
APPEARANCES:
Joseph C. Galanes Esq., for the Claimant
Keith J. Kasper Esq., for the Defendant
ISSUE:
The degree of permanent impairment Claimant suffered as a result of his work-related hernia.
CLAIMANT SEEKS:
1. Permanent Partial Disability Benefits pursuant to 21 V.S.A. § 648
2. Attorney fees and costs pursuant to 21 V.S.A. § 678(a)
3. Legal Interest
EXHIBITS:
1. Joint Medical Exhibit
2. Deposition transcripts of Claimant
3. Deposition transcripts of Dr. Kiernan
4. Deposition transcripts of Dr. Brigham
5. Supporting materials from the AMA Guides and Mastering the AMA Guides
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STATEMENT OF FACTS:
1. Claimant began working for Rock of Ages on April 24, 1989 and works there presently. At all times relevant to this action, Defendant Rock of Ages was Claimant’s “employer” and Claimant Myron Coburn was Defendant’s “employee” within the meaning of the Vermont Workers’ Compensation Act.
2. The relevant facts involving Claimant’s injury that arose during the course of his employment are undisputed.
3. Claimant suffered a first work-related hernia on June 28, 2000. Dr. Kiernan repaired the hernia with stitches on July 14, 2000.
4. In the present claim, the Claimant suffered a work-related injury on November 12, 2003. He was pulling on a very long heavy steel and rubber 3 inch diameter hose that got caught. He yanked on it and noticed pain in the same location as his prior hernia. He reported it to his foreman.
5. Claimant’s family physician referred Claimant to Dr. Kiernan who performed surgery to repair the second hernia in same location as the previous hernia.
6. Dr. Kiernan’s pre-operative note describes this hernia as a “recurrent left inguinal hernia.” The Claimant sustained both a direct hernia—a tear in the floor of the canal and an indirect hernia—material protruding through the ring as a result of this work accident. On January 5, 2004, Dr. Kiernan performed the second hernia repair, using a procedure that included placing a prolene mesh and a hernia prosthesis in the injured area. Dr. Kiernan described this hernia as a “pantaloon hernia” because it was a double hernia.
7. Dr. Kiernan’s post-operative follow up examination on January 20, 2004 indicates that Claimant’s hernia was healing well and that he should be able to return to work when quarry re-opened in the spring. However, Dr. Kiernan did note that Claimant should still “avoid very heavy lifting, i.e. 100#’s.”
8. In response to a request from Defendant insurer for a decision regarding a medical end result, Dr. Kiernan examined Claimant on March 9, 2004. Claimant was released to return to work full duty with a cautionary note to be careful when doing extremely heavy lifting 100-150 pounds. Claimant’s job requires extremely heavy lifting daily. Upon releasing Claimant for full duty, Dr. Kiernan conceded that he did not know how much Claimant was required to lift at work.
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9. Liberty Mutual Insurance Company is responsible for Defendant’s workers’ compensation to the Claimant. Defendant insurer does not dispute the fact that Claimant suffered a work-related hernia. Defendant insurer paid Claimant all temporary total disability and all reasonable and necessary medical charges incurred as a result of the work-related injury.1
10. Currently, over two years later, Claimant is able to work but continues to experience activity-dependent daily pain while performing his routine tasks at the Rock of Ages quarry. When questioned during his deposition about Claimant’s continued pain, Dr. Kiernan averred that patients who undergo a mesh repair generally have some degree of discomfort during certain activities and some of Claimant’s discomfort may be due to a “nerve that comes through that area called the ilioinguinal nerve, and it runs right underneath the external oblique fascia …” and “An ilioinguinal nerve can cause discomfort whether you sew it or use mesh.”
11. Dr. Kiernan’s March 9, 2004 final examination did not show any evidence of hernia recurrence on physical examination prior to Claimant’s return to work.
12. Defendant did not investigate whether Claimant suffered permanent impairment as a result of his work-related hernia, when, according to Dr. Kiernan, Claimant reached a medical end result.2 Defendant insurer maintains that Dr. Kiernan’s March 9, 1994 examination qualifies both for a medical end result and for a permanency rating. While Dr. Kiernan’s final examination successfully establishes a medical end result, it fails to meet the requirements of a permanent impairment rating using the AMA Guides, which Dr. Kiernan did not do.
13. Claimant’s counsel requested an IME, which was performed by Dr. Fenton on August 3, 2005. Dr. Fenton reported Claimant’s experience of discomfort when he does heavy lifting as “significant pain and dysfunction that lasts around 1.5 days. If he doesn’t do any heavy lifting he has no pain, only the occasional prickly sensation.” Using the AMA Guides Fifth Edition, Table 6.9, Dr. Fenton assigned a 9% permanent impairment rating for the Claimant’s injury “since he has to avoid heavy lifting, and surgical findings were of true hernia mass.”
14. Pursuant to an interim order of December 12, 2005, Defendant began paying permanency benefits retroactive to the August 3, 2005 date of Dr. Fenton’s permanency evaluation.
1 Pursuant to 21 V.S.A. §§ 662(a) and Worker’s Compensation Rule 17.0000 Compensation Agreements—Temporary Total Disability Benefits (Form 21).
2 Worker’s Compensation Rule 18.11 requires that “The employer (insurer) shall take action necessary to determine whether an employee has any permanent impairment as a result of the work injury at such time as the employee reaches a medical end result.”
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15. At the request of Defendant’s counsel, Dr. Brigham reviewed Claimant’s medical records on January 24, 2006, and rendered a permanent impairment rating of 0%. Dr. Brigham disagreed with Dr. Fenton’s impairment rating of 9%, because, in his opinion, Dr. Fenton did not properly apply AMA Guides; but he acknowledged that Dr. Fenton did put Claimant into the right categories and class under the guidelines. Dr. Brigham also supported his 0% permanent impairment rating by noting that Claimant’s surgeon, Dr. Kiernan, set no restriction on lifting outside of “what would be normally reasonable for any individual.”
16. After paying 2/3 of Claimant’s 9% permanent partial disability benefits, the carrier filed and this Department approved an Employer’s Notice of Intention to Discontinue Payments (Form 27) effective on February 2, 2006. The Form 27 included as evidence Dr. Brigham’s 0% permanent impairment rating.
17. Dr. Brigham used medical records from Dr. Kiernan’s March 9, 2004 examination and also the IME conducted by Dr. Fenton on August 3, 2005. He established a 0% permanent impairment rating because the medical records contained no evidence of a postoperative palpable defect. When asked about Claimant’s pain, Dr. Brigham maintained that there was no permanent impairment resulting from the successful hernia surgery and, he suggested using chapter 18 of the AMA guidelines, which allow up to 3% maximum impairment of the whole person, based on the extent of patient’s pain—rather than on impairment. To establish his permanent impairment rating of Claimant, Dr. Brigham relied solely upon medical records. Dr. Brigham did not speak with Claimant, conduct a physical examination of Claimant, or read Claimant’s deposition testimony. Dr. Brigham did not address whether Claimant experienced any limitations affecting his activities of daily life.
18. Claimant has a bulge at the surgical site. He experiences regular discomfort at the hernia site. He is in pain every time he picks up something either at work lifting drilling equipment or at home lifting his thirty-two pound, three-year old grandson. Claimant has modified his daily routines at work due to the pain he experiences while lifting. He now leans the drill bits in a standing position rather than laying them down to avoid any extra lifting. Claimant stopped performing regular activities of daily living (ADL) due to discomfort from the second hernia surgery. He tries to be careful about what he does outside of work because he “just doesn’t want to deal with the pain.” For example, Claimant’s wife brings in the groceries and takes care of all the cleaning; Claimant does not shovel snow or dirt in the garden anymore because that too irritates the hernia site. Another example of Claimant’s inability to perform normal activities is that he no longer maintains and repairs the family cars. Claimant acknowledged a regular pattern of reoccurring activity-related pain that he rated at a seven, on a scale from one to ten.
19. Both parties agreed to resolve this matter on the papers in support of their respective positions: they submitted briefs, deposition transcripts, and medical records to the Department.
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CONCLUSIONS OF LAW:
1. In a worker’s compensation claim, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, Morse Co., 123 Vt. 161 (1962). The claimant must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and employment. Egbert v. The Book Press, 144 Vt. 367 (1984).
2. Claimant has established a work-related injury. At issue is the degree to which he is entitled to permanency benefits. The conclusions of the two experts, Dr. Fenton for the Claimant and Dr. Brigham for the Defendant, are sharply divided with Dr. Fenton finding a permanency impairment of 9% of whole person and Dr. Brigham finding no permanency rating. A closer look at the record indicates that the carrier paid 2/3 of the 9% permanency rating before discontinuing payment. Thus, the percentage in controversy is really the final 3% of the permanency rating of 9%.
3. Both experts, Drs. Fenton and Brigham rely on AMA Guides, Chapter 6, Table 6.9, Fifth Edition p.136, for their opinions. Table 6.9 describes three classes of hernia-related impairments, with permanent whole person ratings that range from 0 to 30%. Each class requires a “palpable defect in the supporting structures of the abdominal wall.” In addition:
• Class 1, with a 0% to 9% impairment, requires the palpable defect and:
a “sight protrusion at the site of defect with increased abdominal pressure,
readily reducible”
or
occasional mild discomfort at site of defect, but not precluding normal
activity.”
• Class 2, with a 10% to 19% rating, requires the palpable defect and:
“frequent or persistent protrusion at site of defect with increased abdominal
pressure, manually reducible”
or
“frequent discomfort, precluding heavy lifting, but not hampering normal
activity.”
The table does not distinguish between pre- and post-operative status.
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4. Here, Claimant has suffered a work-related hernia. Thus, he satisfies this Department’s previous finding in Knapp-Bowen that “A hernia is a defect. Because it is undisputed that Claimant had a work-related hernia, the threshold criterion for all three classes in Table 7 ‘palpable defect in the supporting structures of the abdominal wall’ has been met” and that once a defect is determined the question arises as to whether the Claimant’s symptoms put him in any of the three classes in Table 6.9 of the AMA Guides.3 Erin Knapp-Bowen v. Equinox Terrace, Op. No. 4-98WC (1998). The AMA Guides example 6-29 shows that an individual is assigned a 0% rating when there is “no significant risk of complications and no limit in ability to perform activities of daily living.” Dr. Fenton’s finding that Claimant is eligible for a rating higher than the 0% found by Dr. Brigham is supported by Claimant’s testimony because his activities of daily living are curtailed; evidenced by his discomfort when lifting his three-year old grandson, that his wife carries in the groceries, his inability to shovel snow or dirt, and that he is no longer able to maintain and repair the family cars.
5. Dr. Fenton’s August 4, 2005 IME noted that Claimant does not experience significant pain and dysfunction if he does not do any heavy lifting but that he still has an occasional prickly sensation. Claimant’s surgeon, Dr. Kiernan, explained that individuals who have received a prolene mesh repair for a hernia commonly experience the occasional prickly sensation because the prolene mesh does not stretch the way skin does. Dr. Kiernan also asserted that Claimant’s pain might be the result of irritation to the ilioinguinal nerve. Either of these explanations indicates that Claimant is impaired due to his hernia surgery. But, Dr. Brigham did not read either Drs. Kiernan and Fenton’s nor Claimant’s depositions, instead of addressing Dr. Fenton’s statement that Claimant suffered “significant pain and dysfunction” in regard to the AMA Guides, Dr. Brigham recommended that Claimant be rated according to Table 18 for pain—rather Table 6.9 for impairment.4
6. Dr. Brigham’s 0% impairment rating is incompatible with the AMA companion edition to the AMA Guides, which is published to assist physicians in applying the Guides, as indicated in Example 6-29 of the AMA Guides Fifth Edition, according to the Master the AMA Guides, “an uncomplicated hernia that does not limit the ability to perform ADL is given a 0% WPI rating.” Fifth Edition, Chapter 6.6, p.81.
3 Table 7 in the 4th Edition of the AMA Guides is now Table 6.9 in the current 5th Edition of the AMA Guides.
4According to the AMA Guides Glossary, impairment is the loss of, the loss of the use of, or derangement of a body part, function or system.
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7. Dr. Brigham disputes Dr. Fenton’s 9% permanency rating as inaccurate because Dr. Fenton based his finding on Claimant’s subjective experience of pain. However, Dr. Brigham does not mention that the AMA Guides Fifth Edition, p. 2 states that, “Although the Guides emphasize objective assessment, subjective symptoms are included within the diagnostic criteria.” Dr. Brigham also interprets the AMA Guides, Table 6.9 Class 1 to require as a threshold that Claimant have a “palpable defect in the supporting structure of the abdominal wall.” Despite Dr. Brigham’s unfavorable opinion and regardless of Dr. Fenton’s failure to use language that easily translates his 9% rating into the language of the AMA Guides, his substantive statements, Claimant’s testimony, and case precedent support a 9% rating.
8. The fundamental difference between the opinions, which the defense argues is dispositive, rests upon differing interpretations of how to apply the AMA Guides. Dr. Fenton based his opinion on Claimant’s need to avoid heavy lifting and surgical findings of a “true hernia mass.” Thus, according to Erin Knapp-Bowen v. Equinox Terrace, Claimant is eligible for a permanency rating from 0-10% depending on the degree of protrusion, discomfort, or limitation in activities. Op. No. 4-98WC (1998).
9. The Department applied Knapp-Bowen to the facts of Mason Estabrook v. New England Precision & USF&G Insurance, Op. No. 10-00WC (2000) and found that Mr. Estabrook had suffered an undisputed work-related hernia that “if upon physical examination claimant has resulting frequent discomfort, precluding heavy lifting but not hampering normal activity, his permanent impairment must result in at least a Class 2 impairment according to Table 6.9 of the AMA Guides.” Mr. Estabrook’s treating physician found an abdominal wall defect during surgery and repaired it using prolene mesh. Similiarly, here, Dr. Kiernan found an abdominal wall defect, a direct and indirect double hernia, in Claimant’s abdominal wall, which he repaired using prolene mesh.
10. In Estabrook, this Department relied on expert medical interpretation of the AMA Guides that determined an impairment “is best understood as a residual observable or otherwise identifiable abnormality following an injury or illness” and that a rating greater than zero depended upon “the impact of the residual abnormalities on the individual’s ADL, as they are listed according to the AMA Guides, and on the degree to which an individual’s capacity to carry out daily activities such as those listed on page 317 is diminished.”5 Op. No. 10-00WC (2000). Here, Claimant continues to suffer with residual signs and symptoms two years following his surgically repaired hernia. Therefore, he has an impairment. Furthermore, Claimant does have limited ability to perform ADL, thus, he is eligible for a higher WPI rating.
11. Dr. Fenton rated Claimant according to the Class 1 scale because Claimant experiences “mild discomfort at the site of the defect”—where the prolene mesh is located, which places Claimant in Class 1. Additionally, Claimant experiences frequent discomfort when lifting, which places Claimant in Class 2. But, Dr. Fenton did not place Claimant
5 AMA Guides, p. 317 which list ADL in the Fourth Edition is now listed in Chapter 1, p.7. Relevant ADL include vigorous activities such as lifting heavy objects, carrying groceries, moving a table, or sports like playing golf.
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in Class 2 because, unlike Mr. Estabrook who was rated at Class 2, it does not preclude Claimant from heavy lifting, despite Claimant’s experience of activity-related pain on a daily basis, which he chooses to endure in order to continue working at the Rock of Ages quarry. Unlike Mr. Estabrook, Claimant’s daily life activities are, however, curtailed due to discomfort resulting from his hernia repair, thus, Dr. Fenton correctly placed Claimant in the high end of the Class 1 permanent impairment rating, at 9%.
12. Dr. Brigham is undisputedly a qualified expert and author on applying the AMA Guides. However, Dr. Brigham’s application of Table 6.9 of the AMA Guide, in this instance, is contrary to precedent set by this Department in Knapp-Bowen and Estabrook.
13. The credible evidence is also contrary to Dr. Brigham’s conclusion that there was no palpable mass: Claimant’s description of a bulge at the surgical site and Dr. Fenton’s report of a surgical finding of a mass.
14. Dr. Brigham did not speak with Claimant, conduct a physical examination of Claimant, or read Claimant’s deposition testimony. Dr. Brigham uses a formulaic approach to apply the AMA Guides in an effort to standardize their national application but, in so doing, he neglects to take into account Claimant’s credible testimony, evidencing a clear diminution in the quality of his daily life outside of work, and he failed to apply the AMA Guides according to his own standards, which require a physical examination to determine whether the Claimant has a palpable defect.
15. Therefore, based upon this Department’s precedent in Knapp-Bowen, Dr. Fenton’s IME, and Claimant’s credible testimony, the most probable premise is that Claimant sustained a 9% permanent impairment.
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ATTORNEY’S FEES AND COSTS:
16. Attorney’s Fees and Costs: Pursuant to 21 V.S.A. §678, Claimant’s entitlement to reasonable and necessary cost is a mater of law; his right to attorney’s fees is a matter of discretion. Morriseau v. Legac, 123 Vt. 70 (1962). See Lowell v. Rutland Area Visiting Nurses Assoc., Op. No. 42-99WC (1999).
ORDER:
WHEREFORE, it is hereby ordered that Defendants pay Claimant:
1. Permanent partial disability benefits based on a 9% whole person impairment;
2. Interest at the statutory rate from August 3, 2005 to the date of payment;
3. Costs of litigation totaling $875.94;
4. Attorney’s fees equaling 20% of the award not to exceed $6,000.
Dated at Montpelier, Vermont this 21st day of July 2006.
____________________________
Thomas W. Douse
Acting Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

D. V. v. America’s Gardening Resource (April 12, 2006)

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

D. V. v. America’s Gardening Resource (April 12, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
D. V. Opinion No. 15-06WC
By: Margaret A. Mangan
v. Hearing Officer
Royal & Sun Alliance as For: Patricia A. McDonald
Insurer for America’s Gardening Commissioner
Resource
State File Nos. S-22194; T-19042
RULING ON CLAIMANT’S PARTIAL MOTION FOR SUMMARY JUDGMENT
Claimant, through his attorney, Joseph C. Galanes, moves for judgment as a matter of law on the fact of two job injuries, and entitlement to permanent partial disability, PPD benefits.
Pending before this Department is an April 21, 2006 hearing on the issue “whether Claimant’s spondylolisthesis and surgical repair are compensable under the Workers’ Compensation Act as causally related to Claimant’s employment with America’s Gardening Resource.” Defendant’s Final Disclosures dated February 23, 2006.
Claimant was an employee and Royal & SunAlliance his employer within the meaning of the Workers’ Compensation Act at all times relevant to this action.
In this Department’s file are Forms 1, 21 and 24 for a work related injury of June 7, 2002 at America’s Gardening Resource, a hardware store, and its Insurer Royal and SunAlliance. (S-22194). The injury was described in the Form 1, as “Employee states he has pinched nerve down right leg/pain/cause is unknown.” On the Form 21 the injury is described as a back injury. No denial of the claim was filed.
Also in the Department’s file is a Form 1 for a low back injury on May 20, 2003. (T-19042) The only denial on that claim was filed in January 2005, denying payment for proposed back surgery as unrelated to the injury of May 20, 2003.
Defendant accepted the claim and paid all reasonable hospital charges related to the accident. Since Claimant did not miss any time from work, no agreements for TTD were signed.
Dr. Smith-Horn determined that Claimant was at medical end result of his injuries, with a 3% impairment from the June 2002 injury and 10% impairment from the May 2003 injury. Her report includes a description of loss of range of motion due to spondylolisthesis.
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CONCLUSIONS OF LAW:
Under WC Rule 3.0900 the employer/carrier has “21 days from receiving notice or knowledge of an injury within which to determine whether any compensation is due.”
Since the defendant in this case did not file denials as required, it must accept the claims for the injuries in 2002 and 2003. This is not, however, an acceptance of spondylolisthesis and the proposed surgery or for PPD benefits, subject for the upcoming hearing on which Claimant has the burden of proof.
Therefore, part of Claimant’s motion for partial summary judgment is granted. Claimant suffered work related injuries to his back in 2002 and 2003.
Dated at Montpelier, Vermont this 12th day of April 2006.
_________________________________
Patricia A. McDonald
Commissioner
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D. V. v. America’s Gardening Resource (October 9, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
D. V. Opinion No. 43-06WC
By: Margaret A. Mangan
v. Hearing Officer
America’s Gardening Resource For: Patricia Moulton Powden
Commissioner
State File No. S-22194; T-19042
Hearing held in Montpelier on April 21, 2006
Record closed on May 22, 2006
APPEARANCES:
Joseph C. Galanes, Esq., for the Claimant
Wesley M. Lawrence, Esq., for the Defendant
ISSUES:
Whether Claimant’s spondylolisthesis and surgical repair are causally related to his work related injuries at America’s Gardening Resource, and therefore compensable under the Vermont Workers’ Compensation Act.
EXHIBITS:
Joint I: Medical records
Claimant 1: Medical Bills
Defendant A: C.V of Jerome Siegel, M.D.
Defendant B: Handwritten notes of Dr. Gennaro
FINDINGS OF FACT:
1. Claimant was an employee and America’s Gardening Resource his employer within the meaning of the Vermont Employer’s Liability and Workers’ Compensation Act (Act) at all times relevant to this claim.
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2. Claimant worked in production for Defendant building, packing and shipping gardening products, including prefabricated greenhouses, garden sheds and garden carts. His work included frequent bending, lifting, squatting and carrying. Frequent lifting was up to thirty pounds; occasionally he lifted a hundred pounds or more.
3. On Thursday June 6, 2002, while engaged in his regular heavy work, Claimant noticed back pain. He continued to work. The next day he also worked, but noticed pain with bending. Over the weekend, Claimant developed shooting leg pain unrelated to activity.
4. Ten days after the onset of back pain, Claimant sought medical care. He was diagnosed with radicular symptoms from the L5 nerve root in his lower back.
5. Claimant underwent a course of physical therapy and gradual return to work. By August 2002 he was back to work full time. He learned to be careful with what he did because some residual pain persisted.
6. In late May 2003, Claimant’s back symptoms returned, with radiation to his left leg. On May 21, he consulted with his physician, reporting that symptoms had started two weeks earlier. He reported that it was common to lift at least 50 pounds frequently during a workday.
7. Claimant’s pain persisted, although he continued to work and to consult with Dr. Warren Rinehart. Epidural steroid injections provided only limited relief.
8. It is undisputed that Claimant had Grade I spondylolisthesis at L5-S1that predated any work related injury.
9. Dr. Rinehart referred Claimant to Dr. Elizabeth Ames, a spine surgeon. Physical therapy followed with gains in strength and trunk stability.
10. However, Claimant was given permanent work restrictions with no lifting over thirty pounds; no carrying over 40 pounds, no pushing over 150 pounds and no pulling over 200 pounds.
11. In March 2004, at the request of the insurance carrier, Claimant was evaluated by Dr. Melissa Smith-Horn who determined that he had reached medical end result. She assessed Claimant with a 3% impairment as a result of the June 2002 injury and 10% as a result of the May 2003 injury. Dr. Smith-Horn wrote clearly that the impairments were the result of the work related injuries.
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12. Given persistent worsening symptoms, surgery was recommended in late 2004.
13. The carrier denied Claimant’s request that it cover payment for the surgery although it had paid all benefits up to that recommendation.
14. On February 24, 2005, Claimant had the surgery for spinal stenosis and isthmic spondylolisthesis. Specific procedures Dr. Ames performed were: 1) Laminectomy, bilateral foraminotomy L5; 2) Posterior spinal on L5-S1; 3) Instrumentation to lumbar vertebra posterior segmented; 4) Iliac crest bone graft; 5) Local bone graft, lumbar spine. During surgery, Dr. Ames noted significant left sided nerve root compression and foraminal narrowing.
15. As a result of the surgery Claimant went out of work on January 11, 2005 in preparation for the procedure and returned full time on June 29, 2005.
Medical Opinions on Causation
16. Dr. Ames, Claimant’s treating surgeon, opined that Claimant’s back “condition was aggravated by the lifting done in his work place, particularly since his pain is radicular in nature and not mechanical back pain.”
17. Dr. Backus, who is s Board Certified in Occupational Medicine and Independent Medical Examinations, explained that with spondylolisthesis that is stable, the disc segment retains the stability of that vertebral area. However, once the disc degenerates, that source of stability is lost, leading to a slipped disc, back and leg pain. Dr. Backus explained further that Claimant developed lumbar degenerative disc disease which combined with his preexisting spondylolisthesis to create instability and pain. However, he concluded that degenerative disc disease is not correlated with lifting and in this case was not traumatic. Therefore, he concluded that Claimant’s work did not create the need for the surgery.
18. Dr. Victor Gennaro, Board Certified Orthopedic Surgeon, performs twenty-five to thirty back surgeries a year. He performed an independent medical examination for the Claimant. Dr. Gennaro agreed with Dr. Backus’s description of the combined effects of spondylolisthesis and degenerative disc disease. However, he disagreed with Dr. Backus on the issue of causation. In Dr. Gennaro’s opinion, heavy lifting and frequent bending accelerate the progression of degenerative disc disease. Claimant’s symptoms, according to Dr. Gennaro, were caused by an aggravation of spondylolisthesis. Of the risk factors for degenerative disc disease: smoking, obesity, excessive consumption of alcohol, heredity and heavy lifting, Claimant has only the last. The most likely cause, therefore, was Claimant’s work activities.
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19. Dr. Gennaro assessed Claimant with a 20% permanent partial disability rating.
20. Dr. Jerome Siegel, Board Certified in Occupational and Internal Medicine, reviewed Claimant’s medical records and examined him. Dr. Siegel found no anatomical worsening of Claimant’s spondylolisthesis. He opined that the most likely cause of Claimant’s leg symptoms was an underlying soft tissue problem, e.g. long standing tight hamstring muscles. Dr. Siegel opined that bending at the waist would not aggravate spondylolisthesis, although he conceded that heavy lifting could. He assumed erroneously that Claimant did no heavy lifting at work.
21. Claimant submitted evidence of his contingency fee with his attorney and an accounting of $3,498.87 in necessary costs.
CONCLUSIONS OF LAW:
1. In her ruling on the Claimant’s motion for summary judgment, the Commissioner held that the carrier had accepted claims for two work related injuries in the course of Claimant’s employment, one in 2002 and the other in 2003. However, the question whether the spondylolisthesis and surgery were causally related to Claimant’s work remained a disputed issue for hearing. See Opinion No. 15-06WC.
2. Therefore, in this action Claimant must prove the essential causal connection. See Egbert v. Book Press, 144 Vt. 367 (1984). Did heavy lifting at Claimant’s work accelerate his degenerative joint disease that combined with his spondylolisthesis to stabilize the spine and require surgery?
3. Dr. Backus opined that Claimant’s disc degenerated independent of any heavy lifting, bending and squatting. Dr. Siegel did not think that Claimant’s work required heavy lifting, but conceded that heavy lifting is a causative mechanism.
4. The most persuasive medical opinion is from Dr. Gennaro: frequent heavy lifting and bending is a cause of degenerative disc disease. The opinion is based on years of experience working with injured workers; experience operating on vertebrae and common sense. It is a conclusion supported by the defendant’s first consultant, Dr. Smith-Horn, and the surgeon who performed the operation at issue, Dr. Ames. It is an opinion consistent with other cases, see e.g. J. H. v. City of Burlington, Opinion No. 40-05WC (2005) and is accepted here as the most logical.
5. Therefore, Claimant is entitled to payment for the surgery pursuant to 21 V.S.A. § 640(a), and for temporary total disability payments pursuant to § 642 from January 11, 2005 to June 27, 2005. He is also entitled to permanent partial disability benefits based on Dr. Gennaro’s 20% rating.
6. Claimant is also entitled to statutory interest on all payments from the date they were incurred until paid. 21 V.S.A. § 644.
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7. Finally, Claimant is entitled to the necessary costs incurred totaling $3,498.87 and attorney fees of the total award not to exceed $9,000. 21 V.S.A. § 678(a); WC Rule 10.
ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law, Claimant is awarded medical, temporary total and permanent partial benefits, interest, attorney fees and costs as specified above.
Dated at Montpelier, Vermont this 9th day of October 2006.
________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

C. F. v. National Life Insurance Co. (November 17, 2006)

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

C. F. v. National Life Insurance Co. (November 17, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
C. F. Opinion No. 44-06WC
By: Margaret A. Mangan
v. Hearing Officer
National Life Insurance Co. For: Patricia Moulton Powden
Commissioner
State File No. T-20446
Hearing held in Montpelier on August 22 and 23, 2006
Record closed on September 20, 2006
APPEARANCES:
Steven P. Robinson, Esq. and Jennifer Ciarlo Pacholek, Esq., for the Claimant
Keith J. Kasper, Esq. and David Berman for the Defendant
ISSUES:
1. Is Claimant’s August 19, 2003 fall at home a compensable result of her March 10, 2003 work related injury?
2. If so, what injuries did she suffer as a result of her August 19, 2003 incident?
3. If the August 19, 2003 injuries are compensable, has she reached a medical end result for those injuries? Is she entitled to additional temporary total disability benefits and, if so, for what time periods?
4. If the August 19, 2003 injuries are compensable, what is the extent of the resulting permanent partial impairment?
5. Is Claimant permanently and totally disabled as a result of her work related injury or injuries?
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EXHIBITS:
Joint:
I: Medical records
II: Performance evaluations
III: School Records
Claimant:
1: Defense counsel’s December 13, 2005 letter
2: Claimant’s counsel’s December 27, 2004
Defendant:
A: Private Investigator Videotape
STIPULATION:
1. On March 10, 2003, Claimant was an employee of Defendant within the meaning of the Vermont Employer’s Liability and Workers’ Compensation Act (Act).
2. On March 10, 2003, Defendant was the employer of Claimant within the meaning of the Act.
3. On March 10, 2003, Claimant had one dependent within the meaning of the Act who turned twenty-one years old on November 19, 2004 at which time he was no longer dependent.
4. On March 10, 2003, Claimant had an average weekly wage of $482.31 resulting in an initial compensation rate of $321.54.
5. On March 10, 2003 Claimant suffered a work-related injury.
6. On August 19, 2003, Claimant fell at home. Defendant contests the compensability of this incident and any resulting injuries, but Claimant alleges that the fall was the direct result of her work-related March 10, 2003 injury.
7. On January 5, 2005, Defendant filed a Form 27 terminating Claimant’s indemnity benefits for her accepted work-related right knee injury, based on a determination of medical end result with 4% whole person impairment due to the accepted right knee claim.
8. On August 4, 2005, Claimant was separated from her employment at National Life.
9. To date, Claimant has received all indemnity and medical benefits associated with her right knee claim.
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CLAIM:
Claimant seeks additional medical, temporary total, permanent partial, vocational and permanent total disability benefits as a result of her work-related injury or injuries, and if successful, an award of attorney fees and costs.
OVERVIEW:
It is undisputed that Claimant suffered a work related fall in March of 2003, although the full extent of the injuries from that fall is contested. Six months later, Claimant fell again, but this time at home. Did the second fall result from the earlier, work-related fall? If so, what injuries did Claimant suffer? Is Claimant capable of regular, gainful employment? Several experts have rendered opinions on the sequelae of the falls. Because some of the opinions were obtained years after the two falls, when facts supporting the opinions differ from contemporaneous medical records, the earlier records will control.
FINDINGS OF FACT:
1. During the two-day hearing, Claimant was alert. She testified with no signs of anomia (difficulty finding words) and answered questions clearly and coherently. She exhibited no overt signs of lack of concentration or attention.
2. Before any of the events giving rise to this claim occurred, Claimant had worked running machinery at Rock of Ages for about twenty years and at National Life for about eighteen years.
3. Claimant was a responsible, reliable worker, missing time from work only for an occasional cold.
4. Claimant’s work for National Life was that of a full time set up person. She cleaned trucks, ran errands, checked the cleanliness of restrooms and ensured the proper set up of meetings. Claimant took pride in her work.
5. On March 10, 2003, Claimant fell when she was leaving work. She stubbed her toe and fell forward, landing on hands, knees and hitting her face.
6. At a doctor’s visit on April 29, 2003, Claimant reported to her primary care physician, Dr. Kristopher Jensen, that she had fallen three weeks earlier, injuring her right knee and that she had what the doctor described as “short lived loss of consciousness” at the time of the fall. Dr. Jensen noted no “obvious instability” when Claimant was walking. He also suggested that the persistent pain may have been due to her being on her feet most of the day at work.
7. In June 2003, Claimant telephoned Dr. Jensen’s office, reporting that she still had pain and intermittent swelling in her right knee.
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8. In mid June 2003, Claimant saw Dr. Stafford who noted increase in her knee pain after moving a lot of furniture at work.
9. On July 8, 2003, Claimant was seen again for knee pain and stiffness, which she reported was worse when she was working. On examination, the knee was tender but had “near full range of motion.”
10. On July 31, 2003, Claimant was seen by Charles Butterick, Physician Assistant at Green Mountain Orthopaedic Surgery, who noted a complaint of persistent knee pain. Mr. Butterick recommended physical therapy.
11. At physical therapy Claimant demonstrated weakness in her right leg. A program was set up with goals of increasing the strength and flexion in her right leg and decreasing the pain.
12. In June and June of 2003, Claimant had two instances when her right knee gave out, although she did not fall either time. The first was in the cafeteria in the National Life Building when she caught herself on the salad bar as the knee gave way. The second time was while she was cleaning a rest room, when she again caught herself and prevented a fall. Claimant recalled both instances in some detail at hearing.
13. On August 19, 2003, Claimant fell down her stairs at home. She then went to the emergency department at Copley Hospital where her complaints of left shoulder and back pain were noted. At that time, there was no evidence of head trauma.
14. Claimant fractured her left wrist in the fall at home, a diagnosis made the day of the fall. The fracture required surgery that Dr. Landvater performed on August 25, 2003. Sometime later, it was learned that she also fractured her left lower leg, the fibula.
15. On August 25, 2003, Dr. Landvater operated on Claimant’s fractured left wrist.
16. Also on August 25, 2003, the day of the left wrist surgery, Claimant saw Dr. Jensen who noted that Claimant broke her wrist in the fall and hit her head, although she had no loss of consciousness.
17. An October 21, 2003 physical therapy note documented Claimant’s description of having lost her balance when she fell down the steps at home.
18. In addition to surgery on the wrist, Claimant received medical care and physical therapy for her left wrist, leg and shoulder.
19. In November 2003, Dr. Landvater noted that Claimant was not yet to resume work.
20. In December 2003, Dr. Stephanie Landvater noted that Claimant was to return for treatment if she had continued “catching and buckling” in her left knee.
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21. On January 7, 2004, Dr. Landvater wrote that Claimant could only work four hours per day because of her work related right knee problem. Dr. Landvater reiterated that opinion on January 27th when she diagnosed a meniscal tear in Claimant’s right knee of a year’s duration.
22. In January 2004, Dr. Jensen also saw the Claimant, noting that she was alert and oriented, but making no mention of mental deficits.
23. Dr. Williams noted on a prescription pad dated January 19, 2004 that Claimant had work related fasciitis. He may have been unaware that Claimant had only been working half time for two weeks and not at all for several months before that.
24. On February 26, 2004, Claimant was in a motor vehicle accident (MVA). When she was examined a few days later, it was noted that she had a headache and some dizziness, although dizziness predated the MVA. It was also noted that she had an upper back strain.
25. By April 2004, Claimant’s headaches had resolved and she was back to work half time performing the same work she had been doing before the MVA.
26. On May 5, 2004, Dr. Landvater operated on Claimant’s right knee for what was determined to have been a work related meniscal tear from the fall in March 2003.
27. A July 16, 2004 Physical therapy note recorded Claimant’s comment that “I get dizzy since I started coming here.”
28. Dr. Landvater released Claimant to work at modified duty from August 4, 2004 to September 2, 2004, four hours a day.
29. On August 17, 2004, Claimant reported to a physical therapist that she was working four hours a day, limping a lot at work and “they don’t like it.”
30. On August 30, 2004, a therapist noted that Claimant’s pain behaviors were hindering her progress. She “declined” to perform some recommended activities. And she reported limping and being sore at work after moving some things. Yet, she also reported walking two hours at a fair the previous Sunday.
31. In September 2004, Claimant spent one day at work on the building inspection and inventory.
32. Claimant worked until August 2005 when her employment at National Life ended. During the time Claimant worked after her injury, she did less physical work, but was assigned to tasks that required more computer work. She was terminated because of her inability to perform physical functions necessary for her job, not because of any mental disabilities.
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33. Dr. Landvater placed Claimant at medical end result on November 2, 2004 with 4% whole person impairment for the injury to her right knee from the March 2003 fall at work.
34. At work, Claimant did not show any signs of problems with memory or concentration, even when she was on light duty part-time work in August of 2003.
35. Claimant had satisfactory performance evaluations at work from June 2004 through March 2005.
36. A private investigator videotape shows Claimant walking without a cane, even when it was snowing. Although slow while walking, Claimant was able to hold items in her arms and maintain her balance. She did not use a cane at the hearing, although she limped when walking.
37. One of Claimant’s activities is bingo, which she plays with eighteen cards.
Experts
38. Dr. Victor Gennaro is an orthopedic surgeon who evaluated this case for the Claimant. Based on his examination and history that Claimant’s knee was painful as she descended the stairs in August 2003, Dr. Gennaro opined that the original work related injury led to that fall. He based that opinion on the fact that she had an untreated meniscal tear in that knee at the time of the fall, a diagnosis well supported by Dr. Landvater’s records and surgical findings. However, Dr. Gennaro was not able to link the fasciitis to Claimant’s work.
39. Dr. Gennaro opined that Claimant is unable to return to gainful employment because of her cognitive difficulties, deconditioning and painful knees.
40. In March of 2006, Dr. Gennaro opined, and I find, that Claimant had not yet reached medical end result for her left shoulder and left knee, injuries she sustained when she fell down the stairs at home in August of 2003.
41. Dr. John Johansson, medical director of Vermont Center for Occupational Rehabilitation, performed an IME of the Claimant in 2004. At that time, she was working full eight hours days, with breaks as needed. Claimant provided a history to Dr. Johansson without any signs of anomia or memory problems. When he saw her again in 2005, when Claimant had been out of work with foot problems, he opined that she could return to work with good footwear.
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Functional Capacity Evaluations
42. Louise Lynch performed a functional capacity evaluation on Claimant in January 2006. Ms. Lynch understood that Claimant used a cane when she walked outside, a finding inconsistent with the videotape. After testing, Ms. Lynch concluded that Claimant had a part-time sedentary work capacity. She opined, based on Claimant’s physical limitations and her observations, that Claimant is not employable in the competitive work place.
43. Leslie Bell performed a functional capacity evaluation of the Claimant in April 2006. During that evaluation, Claimant self limited in 25% of the tasks, behavior that “influenced the outcome of the test.” Ms. Bell determined that Claimant had a sedentary work capacity for an eight-hour day based on that evaluation. Further, she opined that Claimant could navigate stairs only rarely, such as for entering a building, but should not have regular stare climbing throughout the day.
Vocational Rehabilitation Opinions
44. George Fotinopoulos, Vocational Rehabilitation (VR) Counselor, initially determined that Claimant was entitled to vocational rehabilitation services. By agreement of the parties, an extension was granted for the submission of a rehabilitation plan. Claimant now alleges that the carrier refused to pay for VR services. The carrier alleges that Mr. Fotinopoulos never followed up after the extension was granted. Regardless, Claimant never received VR services.
45. John May, Vocational Rehabilitation Counselor, performed a forensic vocational assessment in this case. He based his opinions on a private investigator videotape, functional capacity evaluations, Claimant’s vocational history, the medical records and his VR expertise. He concluded that Claimant would benefit from vocational rehabilitation services that would “enhance her employability.” He predicted that with such services, Claimant will return to gainful employment.
Expert Opinions
Head injury
46. Highly disputed is whether Claimant suffered a head injury in the fall down the stairs, and if so, whether such an injury, combined with other injuries, disables her. In support of her claim is the opinion from Dr. Solomon, based on neuropsychological examinations. Dr. Solomon is the director and founder of the Memory Clinic. He opined that Claimant meets the criteria for a traumatic brain injury (TBI) for both of her work related falls. That opinion is based on a comparison in what he determined was her pre injury IQ, school performance, and current testing. Based on cognitive deficits, he assessed her neuropsychological impairments at 25% whole person.
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47. Dr. Solomon’s opinion was based in part on an inaccurate history Claimant and her cousin gave him. For example, they described retrograde and posttraumatic amnesia that is recorded nowhere in the records. They also described a precise mechanism of the fall —falling backwards and hitting her head multiple times—that is described to Dr. Solomon for the first time in the several years since the accident.
48. Dr. Peyser, also a neuropsychologist with expertise working with patients who have had brain injuries, evaluated the Claimant for the defense. Based on the records and her expertise, Dr. Peyser found no record of posttraumatic amnesia, which is relevant to the issue of head injury. Retrograde amnesia is not relevant to the inquiry, in her opinion. Dr. Peyser, too, tested Claimant, finding no residual cognitive deficits from the falls. Claimant described cognitive losses to Dr. Peyser, yet those losses are not recorded in the records until September 2005. Claimant described difficulty finding words, yet did not demonstrate that difficulty during interview. Based on testing, Dr. Peyser attributed low or borderline results to low effort. Dr, Peyser concluded that, with the exception of Claimant’s self-reports, “there is no evidence …that Ms. Fisher suffered a head injury with significant cognitive deficits to interfere with her function on the job or in daily life.”
Attorney fees and costs
49. Claimant submitted evidence that her attorneys worked 170.3 hours on this claim and paralegals 5.8 hours. She incurred $6,629.78 in necessary costs, including $900 for Dr. Solomon’s record review and $1,000 for Dr. Gennaro’s two-hour preparation and one hour of deposition testimony.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1962). This Claimant 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).
2. Where the claimant’s injury is obscure and the layperson could have no well-grounded opinion as to its nature or extent, expert testimony is the sole means of laying a foundation for an award for both compensability issues as well as the extent of the award sought. Lapan v. Berno’s, Inc., 137 Vt. 393 (1979).
Causation of Second fall
3. Every natural consequence of a work related injury is also compensable. See Fleury v. Legion Ins., Opinion No. 43-02WC (2002) (citing 1 Larson’s Workers’ Compensation Law. § 10.00).
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4. Three factors convince me that it is more probable than not that the work related injury led to the fall at home. First, Claimant testified convincingly that her knee had given way twice before the fall at home. Second, at the time of the fall she had an untreated torn meniscus. Third, an orthopedic expert familiar with the signs and symptoms of a torn meniscus, Dr. Gennaro, attributed the fall to the untreated tear.
5. As a result of the second fall, Claimant injured her head, left wrist, shoulder, leg and her back.
6. Any head injury she may have sustained has since resolved without residual deficits, a conclusion well supported by Dr. Peyser’s opinion. Claimant’s work performance after that fall and her embellished history undercut the opinion proffered by Dr. Solomon to the contrary. Therefore, Claimant is not entitled to permanent partial disability benefits for a traumatic brain injury.
7. To prevail on her claim for permanent total disability (PTD), Claimant must prove that a work related injury or injuries caused impairments that render her unable to sustain regular gainful employment. Her age, experience, training, education, occupation and mental capacity are all factors relevant to a finding of PTD. 21 V.S.A. § 644(b). WC Rule 11.3100. One who is permanently and totally disabled must have no reasonable prospect of finding regular employment.” § 645.
8. When one is unable to return to work for which she has had previous training or experience, the worker is entitled to vocational rehabilitation services. 21 V.S.A. § 641(a).
9. Claimant has failed to prove that she is permanently and totally disabled. Although she may not have had the most successful academic record as a child, Claimant has proven herself a competent, affable and dedicated worker for her adult life. It is unfortunate that employment with National Life did not work out for her. It is also unfortunate that vocational rehabilitation services were not provided. However, she is capable of participating in vocational rehabilitation.
10. Therefore, Claimant is entitled to vocational rehabilitation benefits. She is also entitled to temporary total disability retroactive to their discontinuance until she reaches medical end result for the physical injuries incurred in the work related fall. Interest on those benefits must be calculated from the date those benefits were due until paid. 21 V.S.A. § 664.
11. Pursuant to 21 V.S.A. § 678(a) and WC Rule 10.000, a prevailing Claimant is entitled to a mandatory award of necessary costs and discretionary award of reasonable attorney fees when she prevails. Claimant submitted evidence that her attorneys worked 170.3 hours on this claim and paralegals 5.8 hours. She incurred $6,629.78 in necessary costs.
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12. The fees requested are awarded at $90 .00 per hour for attorney time under WC Rule 10.1210 and $60.00 per hour for paralegal time. C. C. v. Eveready Battery Co, Opinion No. 38-05 (2005). Although Claimant has not prevailed on the permanent total disability claim, she has proven that the second fall is compensable, a highly contested claim. She has prevailed on her claim for additional temporary total disability benefits. The hours her attorney worked to achieve this success were reasonable.
13. The costs associated with the unnecessary aspects of the claim, including Dr. Solomon’s fees, must be subtracted from the total cost request. In other respects, the costs were necessary to the successful aspects of the claim.
Summary
14. In sum, Claimant’s August 19, 2003 fall at home was a compensable result of her March 10, 2003 work related injury. As a result of that fall, Claimant suffered a head injury that has resolved as well as shoulder and leg injuries that have not yet reached medical end result. She is entitled to temporary total disability benefits until she reaches medical end result or successfully returns to work. 21 V.S.A. § 642; 643a. Claimant is not permanently and totally disabled as a result of her work related injury or injuries.
ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law, this claim for permanent total disability benefits is DENIED. However, Defendant is ORDERED to:
• Provide vocational rehabilitation benefits to Claimant;
• Pay TTD retroactive to the discontinuance with interest accruing from the date payment would have been made had the second fall been accepted until paid;
• Pay attorney fees and costs:
• Otherwise adjust the claim for the second fall, including payment of permanent partial disability benefits when Claimant reaches medical end result.
Dated at Montpelier, Vermont this 17th day of November 2006
________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

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

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

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

S. C. v. Barre Supervisory Union School (July 9, 2007)

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

S. C. v. Barre Supervisory Union School (July 9, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
S. C. Opinion No. 18-07WC
v. By: Rebecca L. Smith
Staff Attorney
Barre Supervisory Union School For: Patricia Moulton Powden
Commissioner
State File No. T-11595
RULING ON DEFENDANT’S MOTION FOR RECONSIDERATION AND/OR STAY OF FINAL DECISION AND CLAIMANT’S MOTION TO RECONSIDER REGARDING ATTORNEY’S FEES, COSTS, INTEREST AND IMPAIRMENT RATING
The Defendant moves that the Department reconsider and modify, or in the alternative stay pending appeal, the final decision, Opinion No. 53-06WC, issued on January 2, 2007 after formal hearing in this workers’ compensation matter. Specifically, the Defendant disputes the Department’s finding of permanent partial impairment in Conclusion of Law 8, which states that Dr. Farrell’s is the only permanency opinion on record. The Defendant asserts that Dr. Hebben’s assessment of no permanent impairment is the correct one.
The Claimant requests several actions in her motion: 1) award of attorney’s fees and costs on the basis that the Claimant partially prevailed at hearing, 2) clarification of the specific percentage of impairment awarded, 3) an award of interest on all outstanding benefits ordered, and 4) an order directing payment of the permanent partial disability benefits in a lump sum pursuant to §652.
The initial opinion denied permanent total disability and awarded permanent partial impairment as assessed by Dr. Farrell, who provided a rating in the form of a range of 26-32%. It did not address attorney’s fees and costs or interest.
Permanent Partial Impairment
The Defendant argues that the Department erred in awarding permanent partial disability because that conclusion was not based on the facts found. Specifically, the Defendant disputes the statement in Conclusion of Law 8 that Dr. Farrell’s was the only permanency rating advanced, noting that Dr. Hebben assessed no impairment associated with the work injury.
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Dr. Hebben’s opinion is founded on her conclusion that the Claimant suffered no psychiatric or cognitive injury as a result of the January 2003 accident. However, Dr. Hebben did find a somatoform disorder, which had not previously been diagnosed. Dr. Hebben describes that the mild head injury provided the Claimant with “a shelf to place [her preexisting psychological conditions] on.” Further, Dr. Hebben questioned the diagnosis of concussion and post concussion syndrome, while it is well established by both the Claimant’s treatment providers and by independent examiners hired by the Defendant that the Claimant experienced mild grade 1 concussion, followed by post concussion syndrome with persistent effects. Both Dr. Preis and the Claimant testified that a series of pre-injury conditions, essentially controlled and not significantly interfering with the Claimant’s teaching career, markedly worsened subsequent to the injury. Dr. Preis describes the post-injury symptoms as becoming chronic rather than episodic.
Therefore, upon review and reconsideration, the original finding that the lingering effects of the work injury combined with the pre-existing conditions to produce disability are the most probable hypothesis. This conclusion is additionally supported by Dr. Peyser, who opined that “the incident may have spawned a psychological reaction which may be impacting the results of some of her testing,” and recommended that the Claimant work with a vocational rehabilitation psychologist to “map out compensatory and recovery strategies along with pain management skills.”
Percentage of Impairment
In June 2005, Dr. Farrell found a psychological impairment directly attributable to the work injury of 26-32 % based on the Colorado Department of Labor and Employment guidelines. The AMA Guides to the Evaluation of Permanent Impairment assess impairment due to mental and behavioral disorders, but do not assign numerical impairment ratings as they do for other injuries. The Department has recognized the Colorado system for the purpose of assigning an impairment percentage to mental disorders. See, e.g. Bodell v. Webster Corporation, Opinion No. 62-96WC (October 22, 1996), Sargent v. Town of Randolph Fire Department, Opinion No. 37-02WC (August 22, 2002). Close comparison of Dr. Farrell’s findings with Table 13-8 of the Guides (Criteria for Rating Impairment due to Emotional or Behavioral Disorders) and the corresponding examples indicates correlation with high end Class 2 (moderate limitation of some activities of daily living, 15-29%) to low end Class 3 (severe limitation in performing most activities of daily living, 30-69%) impairment. Consequently, I find the Claimant’s whole person impairment rating to be 30%.
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Attorney’s Fees and Costs
By oversight, the initial opinion neglected to address attorney’s fees and costs. The Claimant has submitted an accounting of $19,719.00 in fees and $6,826.34 in costs.
The Claimant sought to establish work-related permanent total disability, or, in the alternative, work-related permanent partial disability; the Defendant disputed any permanent disability attributed to the work injury. Awarding of attorney’s fees is discretionary pursuant to 21 V.S.A. §678. The Claimant has prevailed in part, and is thereby entitled to of a portion of the fees and costs sought. An award in the amount of 50% of the fees sought, or $9,859.50, is appropriate to the degree of the Claimant’s success, in consideration of the extent to which the necessary preparations for the alternative positions overlapped.
Necessary costs are mandatory when a claimant prevails. Having prevailed in part, the Claimant is entitled to an award of costs, however the costs sought in this matter far exceed the norm for claims of this type. Payments to one individual alone, Dr. Paul R. Solomon, exceed four thousand dollars. Dr. Solomon’s role in preparing the case is not clear, and without further elaboration cannot be deemed necessary. Accordingly, $2,776.34 in costs is awarded.
Interest
Pursuant to 21 V.S.A. §664, an award shall include the date on which the Defendant’s obligation to pay compensation began, and shall include interest at the statutory rate computed from that date. Defendant’s obligation to pay temporary partial disability compensation began at the termination of the period of temporary total disability, which the parties have stipulated occurred on April 26, 2005. Interest on the benefits due shall be paid from that date.
Lump Sum
The Claimant requests an order requiring that the permanent partial disability benefits be paid in a lump sum in accordance with 21 V.S.A. §652 in order to protect her Social Security benefits from offset. Section 652 was amended in May 2006 to require that, in the absence of a claimant’s request to the contrary, any order for a lump sum payment of permanent partial disability benefits shall include a provision accounting for excludable expenses and prorating the remainder of the lump sum payment in the manner set forth by the Social Security Administration in order to protect the claimant’s entitlement to Social Security Benefits. The Department relies upon party counsel to provide such an accounting for review and approval, and cannot approve lump sum payment in its absence.
Stay
To prevail on its request for stay of the award of permanent partial disability benefits, the Defendant must demonstrate 1) that it is likely to succeed on the merits of the appeal; 2) that it would suffer irreparable harm if the stay were not granted,; 3) that a stay would not substantially harm the other party; and 4) that the best interests of the public would be served by the issuance of the stay. In re Insurance Services Offices, Inc. 148 Vt. 634, 635 (1987).
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The Defendant argues that it will likely prevail on appeal because the Department’s conclusions were not based upon the facts as presented at hearing. Specifically, the Defendant notes that Conclusion of Law 8 conflicts with the facts found in Finding 38. The Defendant’s arguments regarding the other three stay factors are similarly based. Those concerns are addressed above in the discussion regarding the reconsideration of the award of permanent partial disability benefits. The defendant has failed to sufficiently demonstrate that another forum, after interpreting all submitted evidence, would reach a different conclusion. See, e.g. Carter v. Portland Glass, Opinion No.8RS-98WC (April 3, 1998 and Feb. 6, 1998). Without this essential prong of the four-part test under In re Insurance Services Offices, Inc., the Defendant’s arguments regarding the other three prongs are diminished, and lead to the conclusions that the required factors are not demonstrated. Accordingly, the motion for a stay must be denied.
ORDER:
Therefore, based upon the forgoing:
1. The award of permanent partial disability is upheld after reconsideration;
2. PPD shall be at the rate of 30% whole person disability;
3. Interest is awarded as though the PPD payments had commenced on April 26, 2005;
4. Claimant is awarded attorney’s fees and costs in the amount of $10,625.00;
5. Claimant’s request for a lump sum payment of benefits is denied.
Dated at Montpelier, Vermont this 9th day of July 2007.
______________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

Matthew Commo v. Stevens Gas Services, Inc. (February 3, 2010)

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Matthew Commo v. Stevens Gas Services, Inc. (February 3, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Matthew Commo Opinion No. 03-10WC
v. By: Jane Dimotsis, Esq.
Sal Spinosa, Esq.
Stevens Gas Services, Inc. Hearing Officers
For: Patricia Moulton Powden
Commissioner
State File Nos. W-7337 and Z-3648
OPINION AND ORDER
Hearing held in Montpelier on February 27, 2009 and June 17, 2009
Record closed on September 8, 2009
APPEARANCES:
Richard Goldsborough, Esq, for Claimant
Tammy Denton, Esq., for Defendant
ISSUES PRESENTED:
1. What is the appropriate permanent impairment rating for Claimant’s April 13, 2005 low back injury?
2. What is the appropriate permanent impairment rating for Claimant’s June 17, 2005 shoulder injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Curriculum Vitae, Verne Backus, M.D.
Defendant’s Exhibit A: Curriculum Vitae, John Johansson, D.O.
CLAIM:
Permanent partial disability benefits pursuant to 21 V.S.A.§648
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
Claimant’s Back Injury
3. On April 13, 2005 Claimant injured his lower back while making a fuel delivery. Defendant accepted the injury as compensable and paid workers’ compensation benefits accordingly.
4. Claimant’s symptoms included right-sided low back and hip pain, with radiation down his right leg. Diagnostic imaging revealed disc herniations on the right at L4-5 and on the left at L5-S1. When his symptoms failed to abate with conservative treatment, in October 2005 Claimant underwent L4-5 disc surgery. Afterwards, he reported to Dr. Krag, his treating surgeon, that with the exception of some residual numbness in his toe, his right leg symptoms had completely resolved.
Claimant’s Shoulder Injury
5. On June 17, 2005, after his April 13, 2005 back injury but before his October 2005 back surgery, Claimant fell down a flight of stairs while at work and injured his right shoulder. Claimant was diagnosed with a torn rotator cuff, which Dr. Slaughterbeck surgically repaired on October 24, 2005. Thereafter, Claimant underwent a course of physical therapy. By May 2006 Dr. Slaughterbeck reported that he had regained full range of motion in his shoulder. The March 2006 physical therapy discharge note reflected the same results.
Permanent Impairment Ratings – Spine
6. At Defendant’s request, in September 2006 Dr. Johansson, an osteopathic physician, evaluated Claimant for the purpose of rating the extent of his permanent impairment relative to both the April 2005 low back injury and the June 2005 shoulder injury. In March 2007, upon referral of his attorney Claimant underwent a second permanency evaluation, this time with Dr. Backus, an occupational medicine specialist.
7. As to Claimant’s low back injury, both doctors determined that Claimant had reached an end medical result as of September 5, 2006, the date of Dr. Johansson’s examination. Using the AMA Guides to the Evaluation of Permanent Impairment, 5th ed. (the “AMA Guides”), both doctors concluded that Claimant fit within DRE Category 3, which provides an impairment range of ten to thirteen percent. According to the AMA Guides, to select the appropriate impairment rating within that range requires an analysis of how the injury has impacted one’s activities of daily living.
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8. Dr. Johansson placed Claimant at the low end of the range and therefore rated him with a 10% whole person impairment referable to his spine. In Dr. Johansson’s opinion, it was inappropriate to assign any additional percentage attributable to the impact on Claimant’s activities of daily living, as at least some of that impact was attributable instead to Claimant’s June 2005 shoulder injury.
9. Dr. Backus disagreed. Unlike Dr. Johansson, he documented Claimant’s responses on both a pain disability index and an impairment impact inventory. From that he concluded that the impact of Claimant’s low back injury on his ability to perform activities of daily living merited a rating at the high end of the scale, or 13% whole person. Dr. Backus also noted that, to the extent that Claimant’s shoulder injury also affected his activities of daily living, that impact was accounted for in the impairment rating for that injury. While he agreed that the impact of an injury on one’s activities of daily living should not be counted twice, neither should it be ignored in the context of a rating for which the AMA Guides dictate that it be considered.
Permanent Impairment Ratings – Shoulder
10. Again, both doctors agree that Claimant reached an end medical result for his June 2005 shoulder injury as of September 5, 2006, the date of Dr. Johansson’s examination. Both also agree that under the AMA Guides, the appropriate impairment rating for this injury depends on the extent of any residual deficit in Claimant’s shoulder range of motion. They disagree as to how best to measure it.
11. According to Dr. Johansson’s range of motion measurements, Claimant was left with a 2% whole person impairment referable to his shoulder injury. Dr. Johansson found corroboration for this rating in Claimant’s medical records, specifically the reports from Dr. Slaughterbeck and the physical therapist indicating that by May 2006 Claimant had regained full range of motion in his shoulder.
12. Dr. Backus reached a different result. According to his measurements Claimant’s shoulder range of motion was significantly more limited than what Dr. Johansson had reported. Dr. Backus’ rating was higher, therefore – 6% whole person.
13. Dr. Backus attributed the difference between his rating and Dr. Johansson’s to a variety of factors. Noting that the AMA Guides require that an impairment rating be based on active, not passive, range of motion, Dr. Backus questioned Dr. Johansson’s reliance on both the March 2006 physical therapy report and Dr. Slaughterbeck’s May 2006 report as corroboration for his findings. Those reports reflected passive, not active, range of motion findings. In addition, Dr. Backus noted that range of motion measurements that are taken shortly after active treatment has concluded, as both the physical therapist’s and Dr. Slaughterbeck’s measurements were, often do not reflect the true extent of a patient’s permanent loss. With the passage of time, additional deficits may become evident.
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14. For his part, Dr. Johansson acknowledged that the AMA Guides require that range of motion be measured actively, not passively. In his formal hearing testimony, Dr. Johansson clarified that he too took active range of motion measurements. Dr. Johansson expressed confidence in both his measurements and his methodology. He was skeptical that Claimant’s range of motion could have decreased to the level that Dr. Backus reported.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
3. Applying the above test to the conflicting medical opinions offered in the current claims, I find Dr. Backus’ permanency ratings to be the most persuasive. First, as to Claimant’s low back injury, I find that Dr. Backus’ report was indicative of a more careful and thorough examination. Most notably, consistent with AMA Guides protocol it included an impairment impact inventory from which it was easy to discern why Dr. Backus reached the rating that he did. In contrast, the basis for Dr. Johansson’s rating is less apparent.
4. Similarly, as to Claimant’s shoulder injury I find Dr. Backus’ impairment rating to be better supported than Dr. Johansson’s, and therefore more credible. Again, Dr. Johansson’s report lacked sufficient detail from which to discern his measurement methodology. It is less persuasive as a result.
5. I conclude, therefore, that in accordance with Dr. Backus’ impairment ratings Claimant sustained a 13% whole person impairment referable to his April 2005 low back injury, and a 6% whole person impairment referable to his June 2005 shoulder injury.
6. As Claimant has prevailed on his claim for benefits, he is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit his itemized claim.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Permanent partial disability benefits in accordance with a 13% whole person impairment referable to the spine, commencing on September 5, 2006, with credit for any amounts previously paid and with interest in accordance with 21 V.S.A. §664;
2. Permanent partial disability benefits in accordance with a 6% whole person impairment referable to the shoulder, commencing on September 5, 2006, with credit for any amounts previously paid and with interest in accordance with 21 V.S.A. §664; and
3. Costs and attorney fees in amounts to be established in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 3rd day of February 2010.
_____________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Gloria Crowe v. The Fonda Group, Inc. (January 25, 2011)

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

Gloria Crowe v. The Fonda Group, Inc. (January 25, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Gloria Crowe Opinion No. 02-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
The Fonda Group, Inc.
For: Anne M. Noonan
Commissioner
State File No. S-13358
OPINION AND ORDER
No hearing held; claim submitted on briefs
Record closed on December 2, 2010
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Marion Ferguson, Esq., for Defendant
ISSUES PRESENTED:
1. What is the appropriate permanent impairment rating referable to Claimant’s cervical spine condition?
2. Is Defendant obligated to sign the treatment authorization form required by The Boston Spine Group?
EXHIBITS:
Claimant’s Exhibit 1: Various correspondence
Claimant’s Exhibit 2: Crowe v. The Fonda Group, Inc., Opinion No. 37-07WC (January
8, 2008)
Claimant’s Exhibit 3: Various medical records
Claimant’s Exhibit 4: Various correspondence
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Defendant’s Exhibit A: Crowe v. The Fonda Group, Inc., Opinion No. 37-07WC
(January 8, 2008)
Defendant’s Exhibit B: March 31, 2008 letter, with attached medical report
Defendant’s Exhibit C: May 27, 2008 letter
Defendant’s Exhibit D: Dr. Johansson Independent Medical Examination/Impairment
Rating, February 23, 2004
Defendant’s Exhibit E: February 10, 2010 correspondence
Defendant’s Exhibit F: The Boston Spine Group treatment authorization form, unsigned
Defendant’s Exhibit G: AMA Guides to the Evaluation of Permanent Impairment, p. 392
Defendant’s Exhibit H: Dr. Backus medical record, December 29, 2009
Defendant’s Exhibit I: Dr. Zweber medical record, July 19, 2002
Defendant’s Exhibit J: Deposition transcript, John Johansson, D.O., February 21, 2007
Defendant’s Exhibit K: Deposition transcript, Verne Backus, M.D., April 9, 2007
Defendant’s Exhibit L: Johnson State College transcript, issued July 17, 2006
CLAIM:
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Medical benefits pursuant to 21 V.S.A. §640
Costs and attorney fees pursuant to 21 V.S.A. §678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim. Judicial notice also is taken of relevant portions of the AMA Guides to the Evaluation of Permanent Impairment (5th ed.) (hereinafter the “AMA Guides”).
Claimant’s Work Injury and Subsequent Medical Course
3. Claimant worked as a machine operator in Defendant’s paper products manufacturing plant. On November 19, 2001 she was operating a large machine when she struck her head on an overhead ladder. As a result of this accident, Claimant suffered various injuries, including a right-sided cervical strain with radicular pain into her right shoulder, and also cervical spine-generated migraine headaches. Treatment for the latter condition was determined to be compensable following a formal hearing and decision by the Commissioner in 2008. Crowe v. The Fonda Group, Inc., Opinion No. 37-07WC (January 8, 2008).
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4. That there was a radicular component to Claimant’s pain was corroborated by electrodiagnostic studies completed in July 2002, the results of which were suggestive of mild cervical radiculopathy at the C5 disc level. As Dr. Cody, a consulting physician who evaluated Claimant at the request of her treating orthopedic surgeon explained, this likely caused the muscles in Claimant’s right shoulder to become weak, leading to secondary rotator cuff pathology. Claimant underwent shoulder surgery to repair this damage in January 2003.
5. As for her cervical symptoms, Claimant treated conservatively. Dr. Backus, an occupational medicine specialist, was her primary “gatekeeper” physician, both in the months immediately following her injury and again in 2005, when treatment focused more on alleviating her cervical-spine generated migraine headaches. After a course of prolotherapy injections, the compensability of which Defendant disputed in the context of the prior proceedings in this claim, the Commissioner determined that Claimant reached an end medical result for her work-related injuries on August 11, 2006. Crowe v. The Fonda Group, Inc., supra.
6. At Defendant’s request, in February 2004 Claimant underwent an independent medical examination with Dr. Johansson, an osteopath. Dr. Johansson rated Claimant with an 8% whole person permanent impairment referable to her right shoulder. Neither party disputes this rating, and Defendant has since paid permanent partial disability benefits in accordance with it.1
Permanent Impairment Ratings Referable to Claimant’s Cervical Condition
7. Both Defendant’s medical expert, Dr. Johansson, and Claimant’s treating physician, Dr. Backus, provided permanent impairment ratings referable to Claimant’s cervical condition. To do so, both used the Diagnosis-Related Estimates (DRE) methodology suggested by the AMA Guides. Under this methodology, an individual is assigned to the correct impairment category based on symptoms, signs and appropriate diagnostic test results. AMA Guides §15.3 at p. 381. In Category I, the individual has only subjective complaints, but no significant clinical findings or documentable neurologic impairment. In Category II, he or she may have radicular complaints, such as pain or weakness in a nerve root distribution, but lacks objective verification by electrodiagnostic findings. In Category III, there are both significant signs of radiculopathy and objective electrodiagnostic verification. Id. §15.3 at p. 383 and Box 15-1, §15.6a at p. 392, Table 15-5. Each category carries with it a range of appropriate impairment ratings – 0% for Category I, 5-8% for Category II and 15-18% for Category III. Id. at Table 15-5.
8. In the context of his February 2004 independent medical examination, Dr. Johansson rated Claimant with a 5% permanent impairment referable to her cervical condition. In doing so, he concluded that Claimant was suffering from a chronic cervical strain, but with no active signs of radiculopathy. He thus placed her at the low end of the range provided for a DRE Cervical Category II impairment. Id. §15.6a at p. 392, Table 15-5.
1 Defendant also has paid permanency benefits in accordance with Dr. Backus’ 3% whole person impairment rating referable to Claimant’s cervical-spine generated migraine headaches.
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9. Dr. Backus first considered the extent of the permanent impairment referable to Claimant’s neck injury in March 2008. At that time, however, he expressed uncertainty as to whether her cervical condition properly was ratable as a Category II impairment or as a Category III impairment. According to Dr. Backus’ interpretation of the AMA Guides, the July 2002 electrodiagnostic studies had provided objective evidence of C5 radiculopathy, and if repeat studies verified that it still existed, then Claimant’s cervical condition would be ratable as a Category III impairment. Alternatively, if repeat studies were now normal, indicating that the C5 radiculopathy had resolved, then only a Category II rating would be justified. With this uncertainty in mind, prior to assigning a definitive rating Dr. Backus recommended that Claimant first undergo repeat electrodiagnostic testing so that she could be rated according to whichever DRE category proved appropriate.
10. When requested to authorize the testing, however, Defendant refused. Initially it did so because it wanted to explore settlement possibilities first. Later, supported by Dr. Johansson’s opinion, it opposed the testing on substantive grounds. From his review of Claimant’s medical records, Dr. Johansson believed first, that there had never been any clinical evidence of radiculopathy, and second, that Claimant’s current complaints were not at all radicular in nature. In his view, therefore, further electrodiagnostic testing was not medically necessary.
11. I find Dr. Johansson’s opinion on this issue to be unpersuasive. In fact, there had been clinical evidence of radiculopathy in the past, see Finding of Fact No. 4 supra. The purpose of repeat testing, therefore, would be to determine if there still remained a radicular component to Claimant’s pain, as this would have a direct bearing on her permanent impairment rating.
12. Lacking Defendant’s authorization, Claimant declined to undergo the repeat testing.2 In December 2009 Dr. Backus finalized his impairment rating, stating that because “[Defendant] has refused my recommendation to repeat the electrodiagnostic study to see if [the C5 radiculopathy] was resolved thus I must assume it is still present.” Based both on that assumption and on Claimant’s persistent complaints of radicular pain from her neck into her right shoulder, Dr. Backus concluded that she met the requirements for a DRE Cervical Category III impairment. Taking into account the impact that Claimant’s chronic pain and headaches had had on her activities of daily living, Dr. Backus rated her with an 18% whole person impairment, the highest rating permissible within that category.
2 Defendant asserts in its pleadings that at some point it did in fact authorize repeat electrodiagnostic testing, but that Claimant refused to undergo it. There is no evidence to that effect in the record, however.
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13. In describing the basis for assigning an individual to DRE Category I, II or III, the AMA Guides state as follows:
Since an individual is evaluated after having reached MMI [maximum medical improvement], a previous history of objective findings may not define the current, ratable condition but is important in determining the course and whether MMI has been reached. The impairment rating is based on the condition once MMI is reached, not on prior symptoms or signs.
AMA Guides §15.3 at p. 383 (emphasis in original).
The Boston Spine Group Treatment Authorization Form
14. At some point in 2009, Claimant was referred to Dr. Jenis, an orthopedic spine surgeon at The Boston Spine Group, for consideration of artificial cervical disc replacement surgery. Defendant’s medical expert, Dr. Johansson, felt that Claimant was not an appropriate candidate for this procedure and therefore that the referral was not medically necessary. Nevertheless, Defendant voluntarily agreed to authorize an initial evaluation on a without prejudice basis.
15. Prior to scheduling an evaluation, Dr. Jenis’ office forwarded to Defendant’s adjuster an authorization form, which provided as follows (emphasis in original):
The above named patient was recently referred to Dr. Louis Jenis for evaluation and subsequent medical treatment for injuries sustained in an industrial accident. Prior to scheduling the patient for medical treatment at Dr. Jenis’ office, we must receive your signature below authorizing treatment which is medically necessary and causally related to this injury, and agreeing to full charges for physician fees as stated below.
Please note edits to this form will not be accepted.
Our fee schedule is as follows:
Initial Evaluation: $295.00
Follow-Up Visits: $180.00
We will proceed with scheduling the patient as soon as your written authorization for payment at the above listed fee schedule is indicated in the space provided below.
In addition, if surgery is indicated, we do not accept workers’ compensation fee schedule. By signing this form, you agree to negotiate surgical fees in good faith.
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16. Defendant’s attorney executed the authorization on Defendant’s behalf, but despite the admonition not to do so she edited it in two respects. First, Defendant’s attorney circled the “Initial Evaluation: $295.00” line, and hand wrote the word “only” next to it, presumably to indicate that Defendant was only authorizing that visit, not any follow-up visits.
17. Second, Defendant’s attorney altered the signature line. The blank form had read, “_____________ agrees to pay full charges as listed on the physician fee schedule for initial evaluation and follow-up visits for the above named patient.” Defendant’s attorney modified it to read (deleted language struck, added language underlined), “[Defendant] agrees to pay full charges as listed on the physician fee schedule for initial evaluation and follow-up visits only for the above named patient.” Again, presumably the purpose of this alteration was to indicate Defendant’s authorization for treatment at the billing rates and upon the terms described in the form, but only as to the initial evaluation, not as to any subsequent visits.
18. Defendant tendered payment of the $295.00 charge for Dr. Jenis’ initial evaluation, but without a signed, unedited authorization form the office has refused to schedule an appointment.
CONCLUSIONS OF LAW:
Permanent Impairment Referable to Claimant’s Cervical Condition
1. The first issue raised by this claim concerns Claimant’s entitlement to permanency benefits for her work-related cervical injury. Claimant seeks benefits in accordance with Dr. Backus’ 18% whole person impairment rating. Defendant argues that benefits should be awarded in accordance with Dr. Johansson’s 5% whole person rating instead. Claimant bears the burden of proof on this issue. King v. Snide, 144 Vt. 395, 399 (1984).
2. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
3. Consideration of these factors weighs in Dr. Backus’ favor here. As the treating physician, Dr. Backus was more familiar with Claimant’s symptoms, signs and medical course than Dr. Johansson was. In addition, his determination that Claimant required repeat electrodiagnostic testing in order to assign her to the appropriate DRE impairment rating category was supported objectively in at least two respects. First, there was previously documented electrodiagnostic evidence of radiculopathy in 2002. Second, there was prior clinical evidence of radiculopathy, namely the muscle weakness in Claimant’s shoulder that Dr. Cody described as the origin of her rotator cuff pathology. Dr. Johansson’s analysis ignored both of these facts.
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4. I conclude that Dr. Backus applied the appropriate analysis to determining Claimant’s permanent impairment in the context of his March 2008 evaluation – he declined to do so, pending the results of further testing. I cannot conclude, however, that he reached the right result when he reconsidered the issue in December 2009. At that point, faced with Defendant’s refusal to authorize repeat electrodiagnostic testing, Dr. Backus made assumptions based on what he knew to be outdated test results, and thus derived an impairment rating that was grounded more in Claimant’s prior condition than in her current one. The AMA Guides specifically admonish against such an approach, and I am bound by statute, 21 V.S.A. §648(b), to do likewise. For this reason, I cannot accept his 18% impairment rating as credible.
5. Vermont’s Workers’ Compensation rules require that the employer pay for at least one permanency examination and impairment rating from the claimant’s treating physician, notwithstanding its decision to obtain a rating from its own medical expert as well. Workers’ Compensation Rule 11.2400. Implicit in this mandate is the requirement that the employer pay for whatever diagnostic testing is necessary in order to calculate a rating in accordance with the AMA Guides. Otherwise an employer might be able to undermine a treating physician’s impairment opinion simply by denying access to the tests required to support it. This is unfair, and not what the rules intend.
6. Rather than awarding permanency benefits based on Dr. Backus’ unsubstantiated assumptions, the better path is to require that the electrodiagnostic testing he recommended be conducted so that Claimant’s current impairment can be accurately assessed. Having found that Dr. Johansson’s opinion discounting the need for such testing was unpersuasive, I conclude that it is medically necessary and that therefore Defendant is obligated to pay for it. 21 V.S.A. §640(a). Once the testing is concluded, presumably it will be possible to calculate an impairment rating that comports with the AMA Guides’ requirements and is therefore more credible.
The Boston Spine Group Treatment Authorization Form
7. The second issue raised by this claim concerns whether Defendant can be ordered to execute The Boston Spine Group’s treatment authorization form as presented. Claimant asserts that signing the form does not obligate Defendant to pay for any treatment beyond the initial evaluation and that therefore the edits Defendant seeks to interpose on it are unnecessary. I disagree.
8. It is true that even if it executes the form as presented Defendant will not waive its right to contest its responsibility for future treatments on the grounds that they are not reasonable and necessary, and thus not covered under §640(a). Should Defendant fight this battle as to future treatment and lose, however, by its clear terms the unedited form obligates it to pay the “full charges” imposed by The Boston Spine Group’s fee schedule, even if Vermont’s workers’ compensation medical fee schedule might provide for a lesser charge. Defendant is well within its rights not to give any medical provider carte blanche in this manner.
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9. Vermont’s workers’ compensation statute limits an employer’s liability to pay for “medical, surgical, hospital and nursing services and supplies” to the maximum fee provided by the Workers’ Compensation Medical Fee Schedule. 21 V.S.A. §640(d); Workers’ Compensation Rule 40.000. The commissioner has discretion to authorize reimbursement at a higher rate, but only if the injured worker “demonstrates to the commissioner’s satisfaction” that the treatment at issue is not available at the scheduled rate. 21 V.S.A. §640(d).
10. Whether Claimant can demonstrate that whatever future treatment Dr. Jenis might propose is unavailable at the Vermont fee schedule rate remains, of course, to be seen. If and when the question arises, however, Defendant is entitled to have it resolved by the commissioner, not by The Boston Spine Group. To the extent that the treatment authorization form bypasses the commissioner’s authority to do so, Defendant’s objection to signing it is entirely justified.
11. Were The Boston Spine Group to present Defendant with a treatment-specific authorization form rather than a global one, the current impasse might be overcome. In that way, Defendant could indicate its acquiescence to the fact that a particular treatment is not available at the Vermont fee schedule rate and thereby waive its right to have the commissioner decide that issue. Short of this solution, I cannot order Defendant to forego the protection that the statute specifically affords it.
12. I conclude, therefore, that Defendant was justified in refusing to execute the form as presented.
Costs and Attorney Fees
13. I conclude that Claimant has at least partially prevailed and therefore is entitled to an award of costs and attorney fees commensurate with the extent of her success. Claimant shall have 30 days from the date of this Opinion within which to submit her claim for reimbursement under 21 V.S.A. §678.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s request that Defendant be ordered to execute The Boston Spine Group’s treatment authorization form is hereby DENIED. Defendant is hereby ORDERED to pay:
1. All medical costs associated with repeat electrodiagnostic testing as recommended by Dr. Backus in order that the permanent impairment referable to Claimant’s cervical condition can be rated according to the AMA Guides; and
2. Costs and attorney fees in amounts to be determined in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 25th day of January 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.

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