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Judith Skovira v. Mylan Technologies Inc (March 29, 2012

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Judith Skovira v. Mylan Technologies Inc (March 29, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Judith Skovira Opinion No. 09-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Mylan Technologies, Inc.
For: Anne M. Noonan
Commissioner
State File No. CC-02280
OPINION AND ORDER
Hearing held in Montpelier on January 9, 2012
Record closed on February 13, 2012
APPEARANCES:
Ron Fox, Esq., for Claimant
David Berman, Esq., for Defendant
ISSUE PRESENTED:
1. Did Claimant suffer a compensable left knee injury on or about February 26th and/or March 2, 2011?
2. If yes, to what workers’ compensation benefits is she entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: List of Claimant’s absences from work
Claimant’s Exhibit 2: Time Detail, 12/19/10-5/5/11
Defendant’s Exhibit A: Curriculum vitae, Leonard Rudolf, M.D.
Defendant’s Exhibit B: Deposition of Thomas Rivers, December 6, 2011
Defendant’s Exhibit C: Deposition of Lise Canevari, December 6, 2011
Defendant’s Exhibit D: Deposition of Monique Brigante, December 6, 2011
Defendant’s Exhibit E: Deposition of Vicki Shepard, December 6, 2011
Defendant’s Exhibit F: Deposition of Chad Cichomski, December 6, 2011
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CLAIM:
Temporary disability benefits pursuant to 21 V.S.A. §§642 and 646
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Medical benefits pursuant to 21 V.S.A. §640
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant began working as a production operator for Defendant, a manufacturer of transdermal medication patches, in March 2007. Her duties included cutting, pouching, sealing and boxing patches on a large production line. Claimant routinely worked the second shift, from 3:00 PM to 11:00 PM. For certain tasks on the line she could alternate sitting and standing, though for most of her shift she was on her feet.
Claimant’s Work-Related Slip-and-Falls
4. On Saturday evening, February 26, 2011 Claimant was walking through Defendant’s parking lot after completing her shift. It had been snowing, and the pavement was slushy. As Claimant reached her car, she slipped and fell forward onto both knees. Two or three of her co-workers, including Lise Canevari and Tina Menard, came to her aid. As they did so, Ms. Canevari recalled Claimant exclaiming that she had fallen on her “f—ing bad knee.”
5. After this event Claimant’s left knee was swollen and painful, but not to the point where she sought medical treatment. She did report the injury to her supervisor when she returned to work as scheduled on Monday afternoon.
6. Claimant worked her scheduled shifts on Monday, Tuesday and Wednesday, February 28th through March 2nd, 2011. As she was leaving work on Wednesday with Ms. Canevari, again she slipped in the parking lot. Her left foot slid forward as if she was squatting, but Ms. Canevari was able to catch her before she fell to the ground.1
7. After this event, Claimant’s left knee was even more swollen and painful than it had been prior to her fall the previous Saturday. Her symptoms prompted her to seek medical treatment, and ultimately restricted her function to the point where she was unable to work.
1 Claimant testified that Ms. Canevari did not keep her from falling, and that her left knee did in fact hit the pavement. Given other discrepancies in Claimant’s testimony, see infra at Finding of Fact No. 23, I have reason to question her recollection. Therefore, I find Ms. Canevari’s testimony more credible in this regard.
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8. Defendant denied Claimant’s claim for workers’ compensation benefits, citing preexisting degenerative pathology in her knee as the cause of her complaints.
Claimant’s Prior Medical History
9. Claimant has a long, complicated medical history involving her left knee. In 1979 she underwent patellar realignment surgery as treatment for recurrent dislocations. She has experienced occasional episodes of left knee pain, swelling and clicking ever since.
10. In October 2000 Claimant’s left knee symptoms again compelled her to seek treatment, ultimately culminating in arthroscopic surgery in April 2001. Diagnostic imaging studies at the time revealed moderate to severe degenerative changes throughout the joint. These changes most likely were caused by the particular type of patellar realignment surgery Claimant had undergone years earlier. By changing the mechanism of the joint, that type of procedure can cause the surface cartilage in the knee to break down, leading to the accelerated development of degenerative arthritis. For that reason, it is no longer considered an effective treatment for recurrent patellar dislocations.
11. Claimant’s 2001 surgery also addressed a lateral meniscus tear, which had been documented as well on her imaging studies at the time.
12. Though she continued to suffer from persistent, generalized left knee pain, following her 2001 surgery Claimant did not seek medical treatment for many years. Then, in October 2009 she presented to her primary care provider complaining of increased discomfort in her knee and sharp pains under her left kneecap. Claimant did not ascribe her symptoms to any recent acute injury.
13. Claimant treated for her symptoms, which she described as having gotten much worse over the course of the prior three years, with Dr. Kaplan, an orthopedic surgeon. She reported intermittent stabbing pain in her knee, severe enough to “stop me dead,” and worsened by such activities as climbing stairs, arising from a chair or kneeling. As had been the case in 2001, diagnostic imaging studies performed in February 2010 documented moderate to severe arthritis throughout the joint, this time evidenced by partial- and full-thickness cartilage degeneration, joint space narrowing and bone spurs. In addition, the studies revealed what was described as a “probable degenerative” medial meniscus tear.
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14. Dr. Kaplan explained Claimant’s treatment options in a telephone conference with her on March 1, 2010. His written summary of the conversation states:
In addition to her arthrosis she has meniscal tears medially. She understands that we may not be able to turn back the clock on her arthrosis, but we may consider doing something arthroscopically if injectable type treatments (such as a steroid injection) were not acceptable to her, given that she had a previous poor reaction [in 2001]. I understand her reluctance to do that, though I think it may help her.
She will see how she does over time. If she is not any better she will consider arthroscopy to see if a debridement of the left knee helps her pain at all.
15. Some months later, during an August 2010 follow-up appointment with her primary care provider for migraine headaches, Claimant also complained of chronic left knee pain. She reported that only a combination of Vicodin and OxyContin (both of which she had been prescribed at times previously for a shoulder injury) provided effective pain relief. As these medications are not recommended for chronic pain management, Claimant’s provider instead prescribed a lidocaine patch.
16. Claimant next followed up with her primary care provider in September 2010. According to the provider’s office note, Claimant reported that the lidocaine patch “did not help.” In her formal hearing testimony, Claimant acknowledged that she likely told the doctor that she had used the patch, but in fact she probably had not, because she did not think it would be effective. In any event, from the medical records it is clear that at least as of September 2010 Claimant’s chronic left knee pain was a troublesome medical issue for her. Claimant admitted as much at formal hearing, though she asserted that it was manageable with ibuprofen. I find this testimony credible.
17. That Claimant’s chronic left knee pain was visibly bothersome to her for some time prior to the events at issue in this claim was corroborated not only by the medical records, but also by her co-employee, Ms. Canevari. Ms. Canevari testified that even before her falls in the parking lot Claimant frequently complained about her “bad knee” while at work, and “was always rubbing it, grabbing it.” I find this testimony credible.
18. At the same time, however, both Ms. Canevari and the other co-employees who testified also corroborated that Claimant’s knee pain appeared to worsen significantly after her falls. She walked more slowly and with a noticeable limp, and rested with her feet up more often. I find this testimony to be credible as well.
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Claimant’s Medical Course after March 2011
19. Claimant did not treat again for her left knee pain until March 4, 2011 – two days after her second fall2 in Defendant’s parking lot. Her symptoms at that point were similar in nature to what she had experienced chronically – tenderness and pain, particularly under her kneecap, with swelling and crepitus – though far worse in degree. She could not walk without limping and had difficulty standing. She was restricted from working full-duty, and could only maintain a part-time (four hours per day) work schedule. Functionally, her activities were significantly limited.
20. Claimant returned to Dr. Kaplan for further evaluation in late March 2011. Repeat diagnostic imaging studies again showed significant degenerative arthritis throughout her knee, as well as a non-displaced degenerative tear in her medial meniscus. Dr. Kaplan did not specifically comment on the progression of Claimant’s degenerative disease as indicated on this imaging study as compared with her February 2010 study. He had this to say as to the significance of her recent falls, however:
I do believe [Claimant’s progressive pain] represents significant exacerbation of a meniscus tear and arthrosis from a work-related fall. She understands that her arthritis predates this but the meniscus tear becoming highly symptomatic again is likely due to her new fall and probably represents the propagation of her degenerative meniscus previously.
21. With worsened pain and decreased function, in May 2011 Claimant elected to undergo the arthroscopic surgery Dr. Kaplan previously had offered in March 2010. As he had before, Dr. Kaplan cautioned that the surgery would not “turn back the clock” on her arthritis, and also that she still might require a total knee replacement at some future point. Presumably he was hopeful, again as he had been in 2010, that by repairing the meniscal tear Claimant’s pain would decrease to more manageable levels.
2 I use the term “fall” in connection with Claimant’s March 2011 mishap solely for ease of reference. In contrast to her fall some days earlier, in this incident Claimant slipped on the pavement but did not actually fall to the ground. See Finding of Fact No. 6 supra.
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22. Claimant ceased working on May 5, 2011 and underwent Dr. Kaplan’s suggested surgery one week later, on May 12, 2011. From the operative report, it is impossible to decipher to what extent, if any, the pathology he found was recent as opposed to long-standing. In his June 14, 2011 office note Dr. Kaplan described his findings and conclusions as follows:
[Claimant] has Grade III to IV changes medially and laterally and she appears to have ongoing synovitis that is related to her arthritis, having gone through surgery with such a vulnerable knee. She has had longstanding problems with her knee and has old scars from her previous [patellar realignment] procedure and previous meniscectomy years ago.
I have gone over her . . . findings with her so that she would better understand that she has a complex problem in her knee, not all of which is related to her work-related injury (that is only the meniscal tearing component) and that the arthritis alone predates this and – though she says she did not have much in the way of symptoms from it – this was mostly uncovered by her recent problem.
23. Given other evidence in the record, see Findings of Fact Nos. 15-17 supra, I do not accept as credible Claimant’s statement to Dr. Kaplan that she “did not have much in the way of symptoms” from her left knee arthritis prior to her falls at work. And while I do not ascribe to her any bad motive or intent to deceive, this and other aspects of her testimony indicate to me that at times she was an unreliable historian. For example:
• In her formal hearing testimony Claimant denied having filed a workers’ compensation claim relating to an alleged wrist injury in 2006, though both the contemporaneous medical record and the Department’s files3 reflect that she did;
• Claimant testified that she enjoyed her job, though she consistently reported exactly the opposite, in fairly strong terms, to her mental health counselor throughout the fall of 2010; and
• As noted above, Finding of Fact No. 16 supra, Claimant reported to her primary care provider that the lidocaine patch prescribed her in August 2010 had not helped her knee pain, but testified at hearing that she doubted having even tried it.
3 State File No. X-5051 alleged a March 6, 2006 wrist injury causally related to Claimant’s employment for Hannaford’s; claim denials were filed in both April and May 2006.
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24. Unfortunately, Claimant did not progress well with arthroscopic surgery. Despite her relatively young age (55), Dr. Kaplan concluded that the only remaining treatment option was a total knee replacement. As to the causal relationship between this surgery and Claimant’s falls at work, he stated:
With her recent injury, having I think tipped the scales given her preexisting arthritis and history of patellofemoral surgery, even though she was doing exceptionally well prior to this injury,4 I think while the injury did tip her over in the feeling of extreme symptoms there was some preexisting problem. It is hard to say how much of the new problem is related to her injury and how much is related to her previous issue.
25. Claimant underwent total knee replacement surgery on August 17, 2011. From reviewing the operative report, I find that the specific purpose of that surgery was to address her left knee osteoarthritis. As of November 2011 Claimant still was reporting significant pain in her left knee. From the evidence presented at hearing, it does not appear that she has yet reached an end medical result.
26. As for whether Claimant would have elected to undergo arthroscopic surgery had she not fallen at work, her testimony was somewhat equivocal. On the one hand, she stated that prior to her fall she felt that her symptoms were not severe enough to warrant a surgery whose outcome Dr. Kaplan could not guarantee. On the other hand, she acknowledged that her symptoms had not improved since March 2010, when Dr. Kaplan first suggested arthroscopy, and that she regularly took ibuprofen to manage her pain. Given that she was suffering from a progressively degenerative condition, there is no way to predict when she might have chosen this treatment path had her symptoms not worsened when and in the manner that they did. I find that there is no basis for me to speculate in this regard.
Expert Medical Opinions
27. Both parties presented expert medical testimony as to the causal relationship, if any, between Claimant’s work-related falls and her subsequent knee surgeries. Dr. Rudolf concluded that no such relationship existed; Dr. Backus concluded that it did.
(a) Dr. Rudolf
28. Dr. Rudolf is a board certified orthopedic surgeon. He has maintained a clinical practice since 1987, a significant part of which involves joint replacements, knee arthroscopies and related issues. At Defendant’s request, Dr. Rudolf reviewed Claimant’s medical records in October 2011.
4 As noted above, Findings of Fact Nos. 15-17 and 23 supra, other evidence in the case casts doubt on Dr. Kaplan’s assertion that Claimant was doing “exceptionally well” prior to her work injuries.
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29. Dr. Rudolf concluded, to a reasonable degree of medical certainty, that both Claimant’s May 2011 arthroscopic surgery and her August 2011 total knee replacement were necessitated by her preexisting osteoarthritis, not by her falls at work. In support of this conclusion, Dr. Rudolf cited the following evidence:
• The mechanism of Claimant’s falls at work conceivably might have affected her patellofemoral joint and surfaces, but would not likely be responsible for any progression of the preexisting tears in her medial meniscus;
• Claimant’s imaging studies, which Dr. Rudolf personally reviewed, documented long-standing degenerative changes throughout the knee. Comparison studies taken both before (February 2010) and after (March 2011) her falls at work were not so “dramatically different” as to suggest any traumatically caused advancement. To the contrary, they strongly suggested that Claimant’s exacerbated symptoms were related more to chronic degeneration in the joint than to any other process;
• Dr. Kaplan’s May 2011 arthroscopic findings failed to reveal any clear evidence of recent meniscal tearing as opposed to long-standing degeneration; and
• The fact that Claimant failed to improve following the May 2011 arthroscopy, which was undertaken specifically to address her meniscal pathology, suggests that her symptoms were not related to that condition at all, but rather to her preexisting degenerative arthritis.
30. Dr. Rudolf likely would not have suggested arthroscopic surgery as a treatment option for Claimant, either in March 2010, when Dr. Kaplan first offered it, or in May 2011, when Claimant underwent it. Based both on his experience and on current medical literature, arthroscopy tends not to be beneficial in the context of advanced arthritis in the meniscus. Dr. Rudolf acknowledged, however, that a patient’s decision to undergo arthroscopy is sometimes driven by pain, and in that respect it was not necessarily inappropriate for Dr. Kaplan to have offered it as a treatment option, either in 2010 or in 2011.
31. In Dr. Rudolf’s clinical experience, patients who undergo arthroscopic knee surgery typically are disabled for two to four weeks, following which they are able to resume unrestricted activities. I find that given Claimant’s complicated prior medical history, in her case this estimate likely would have been overly optimistic.
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32. In Dr. Rudolf’s opinion, the probability that Claimant would require a total knee replacement was “pretty high” no matter when she elected arthroscopic surgery. He refused to speculate whether she would have come to surgery any later had she not fallen at work when and as she did. In his experience, increased pain complaints such as those that Claimant experienced do not usually correlate to specific changes in either tissue structure or surface configuration when the knee is viewed surgically. Thus, the fact that certain events may be associated with increased symptoms does not mean that the underlying condition necessarily must have been exacerbated. Nor does the fact that a patient may require total knee replacement following such an event mean that the event rather than the preexisting degenerative process necessitated the surgery. I find this analysis credible in all respects.
(b) Dr. Backus
33. Dr. Backus is board certified in occupational and environmental medicine. At the request of her attorney, Dr. Backus reviewed Claimant’s medical records in November 2011. He did not personally view her diagnostic imaging studies.
34. Dr. Backus concluded, to a reasonable degree of medical certainty, that Claimant’s falls at work aggravated and accelerated the preexisting degenerative process in her knee to the point where both the May 2011 arthroscopy and the August 2011 total knee replacement became necessary sooner than they otherwise would have. In reaching this conclusion, Dr. Backus relied solely on the fact that although Claimant had suffered from chronic knee pain for years, after her falls at work her pain complaints increased markedly and her ability to function decreased correspondingly.
35. In Dr. Backus’ opinion, it is impossible to discern exactly how Claimant’s falls might have aggravated the specific structures in her knee, as neither diagnostic imaging studies nor physical signs are sophisticated enough to distinguish these features. He posited various theories – already weakened cartilage could have eroded further, an already stressed bone could have become further stressed, or a degenerative meniscal tear could have become more torn. Beyond noting that trauma to an arthritic joint often causes it to become more symptomatic, Dr. Backus was unable to offer any more specific insight into how the falls caused Claimant’s condition to worsen. “Whatever it was,” he concluded, “the knee was worsened by the falls.”
36. Dr. Backus doubted that Claimant would have undergone arthroscopic surgery in May 2011 but for her falls at work, as she already had decided not to do so in March 2010. I am not persuaded by the logic of this testimony, nor do I consider it within the area of his expertise to make such a prediction.
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CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The first disputed issue in this claim is whether Claimant suffered a compensable injury when she fell in Defendant’s parking lot. Defendant denied her claim on the grounds that she suffered from a preexisting condition. As will be seen, this fact is relevant primarily to the question whether Defendant is obligated to pay for either or both of Claimant’s surgeries. It does not of itself preclude me from finding that a compensable injury occurred.
3. For an injury to be compensable under Vermont law, it must arise out of and in the course of the claimant’s employment. 21 V.S.A. §618; McNally v. Department of PATH, 2010 VT 99, ¶10. This is a two-pronged test, requiring a sufficient showing of both (1) a causal connection (the “arising out of” component); and (2) a time, place and activity link (the “in the course of” component) between the claimant’s work and the accident giving rise to his or her injuries. Cyr v. McDermott’s, Inc., 2010 VT 19; Miller v. IBM, 161 Vt. 213 (1993).
4. Defendant does not dispute that Claimant’s injury here occurred in the course of her employment. Instead, by asserting that her symptoms resulted from preexisting pathology rather than her falls, it questions the “arising out of” prong of the compensability test.
5. Claimant presented undisputed evidence that the slushy conditions in Defendant’s parking lot caused her to fall, and that her knee symptoms markedly increased almost immediately thereafter. These were by no means idiopathic falls, ones that occurred for purely personal reasons. Compare Carlson v. Experian Information Solutions, Opinion No. 30-07WC (October 23, 2007) with Boucher v. Peerless Insurance Co., Opinion No. 16-08WC (April 16, 2008). To the contrary, they happened because Claimant’s employment provided the positional risk – an icy parking lot – that caused the events to occur. Miller, supra at 214, citing Shaw v. Dutton Berry Farm, 160 Vt. 594, 599 (1993). Her accidents thus arose out of her employment, and Defendant is thereby responsible to pay whatever workers’ compensation benefits the statute requires as a result. This includes, of course, the obligation to pay for reasonable medical treatment. 21 V.S.A. §640(a).
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6. For a treatment to be reasonable, it must be both medically necessary and causally related to the work injury. Pelissier v. Hannaford Brothers, Opinion No. 26-11WC (September 9, 2011). Whether either or both of Claimant’s surgeries qualify as reasonable is the second disputed issue in this claim. With support from both Dr. Kaplan and Dr. Backus, Claimant contends that her falls aggravated or accelerated the preexisting pathology in her knee, such that but for those events she would not have come to either surgery as quickly as she did. Supported by Dr. Rudolf, Defendant argues that the falls did no such thing, and that the surgeries were necessitated solely by the progression of her underlying disease.
7. 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).
8. I consider first Claimant’s May 2011 arthroscopic surgery. The purpose of that surgery was to address what Dr. Kaplan suspected was a further tear in her medial meniscus caused by her work-related falls. Given Claimant’s markedly increased symptoms, and even notwithstanding Dr. Kaplan’s misunderstanding as to the extent of Claimant’s knee pain in the months previous, I conclude that this was a reasonable supposition for him to make.
9. I acknowledge the persuasive logic of Dr. Rudolf’s opinion to the contrary – that the falls likely did not cause further damage to Claimant’s already-torn meniscus. However, that determination was based at least in part on (a) Dr. Kaplan’s operative findings, which failed to reveal clear evidence of a recent tear; and (b) the fact that Claimant’s symptoms did not improve after arthroscopy. Dr. Kaplan could not have known either of these facts at the time the decision to proceed with surgery was made.
10. In the workers’ compensation context, the test for determining the reasonableness of a particular medical treatment is what was known at the time the treatment was undertaken, not what became known later with the benefit of hindsight. Avdibegovic v. University of Vermont, Opinion No. 06-09WC (February 23, 2009). With due deference to Dr. Kaplan’s status as Claimant’s treating orthopedic surgeon, and considering what he knew at the time, I conclude that the May 2011 arthroscopic surgery constituted reasonable treatment for the symptoms induced by Claimant’s work-related falls.
11. Claimant’s August 2011 total knee replacement surgery, the purpose of which was to address her underlying arthritis, stands on a different footing, however. Even Dr. Kaplan appears to have questioned the relationship between Claimant’s falls at work and the progression of that condition. Without credible evidence establishing that the falls aggravated or accelerated that pathology, the surgery to correct it is not compensable. Stannard v. Stannard Co., Inc., 175 Vt. 549 (2003).
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12. Dr. Backus found such evidence solely in the fact that Claimant’s symptoms worsened after her work-related falls. Essentially his opinion amounted to an assertion that the falls must have caused something to occur in Claimant’s knee, though he could only speculate as to exactly what that was.
13. I cannot accept Dr. Backus’ opinion as persuasive evidence, to the required degree of medical certainty, that the preexisting pathology in Claimant’s knee was aggravated by her work-related falls. It does not take an expert opinion to observe that symptoms have worsened. Rather, the expert’s role is to identify with certainty the causal relationship between a work-related accident and a resulting injury. Marsigli’s Estate v. Granite City Auto Sales, Inc., 124 Vt. 95 (1964). This Dr. Backus failed to do.
14. Citing to the commissioner’s decision in Badger v. BWP Distributors, et al., Opinion No. 05-11WC (March 25, 2011), Claimant argues that her increased pain and decreased function provide sufficient evidence to establish that her underlying arthritis likely worsened as a result of her falls. I disagree.
15. In Badger, the credible medical evidence established that the claimant had suffered a work-related exacerbation of the degenerative disc disease in his lower back, notwithstanding that diagnostic imaging studies failed to reveal any acute changes. Instead, the commissioner accepted the claimant’s sharply escalated pain complaints and corresponding need for treatment as a valid basis for concluding that the work injury had caused not only aggravated symptoms but also had aggravated the underlying condition.
16. The rationale that applied in Badger does not fit nearly as well in this claim. As workers’ compensation practitioners are well aware, first of all, diagnostic imaging studies are notoriously inadequate at differentiating between symptomatic and asymptomatic lumbar disc disease. The same difficulties do not appear to attach to diagnosing arthritic knees. Here, Claimant’s MRI studies documented extensive arthritis in her knee long prior to her work-related falls, of sufficient severity to account for her progressively worsening symptoms. In that respect, the circumstances here are more similar to those presented in Stannard, supra, than they are to the facts in Badger.
17. Of greater significance, in Badger there was no subsequent surgery or other treatment from which to confirm or deny whether in fact the underlying condition had been aggravated. Here, there was.
18. Where a claimant’s preexisting condition is a progressively degenerative disease, the test for determining work-related causation is whether, “due to a work injury or the work environment ‘the disability came upon the claimant earlier than otherwise would have occurred.’” Stannard, supra at 552, quoting Jackson v. True Temper, 151 Vt. 592, 596 (1989). Mere continuation or exacerbation of symptoms, without a worsening of the underlying disability, does not establish compensability. Id.
19. Badger stands for the premise that in appropriate circumstances evidence of aggravated symptoms can be sufficient to establish that a preexisting condition has been aggravated. Each case stands on its own facts, however, and I do not find that the facts support such a conclusion here.
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20. I conclude that Dr. Backus’ opinion as to the causal link between Claimant’s work-related falls and the aggravation or acceleration of the underlying arthritis in her knee is far less persuasive than those expressed either by Dr. Kaplan or by Dr. Rudolf. As the treating surgeon, Dr. Kaplan was well positioned to determine whether such a causal relationship existed. The fact that he did not do so to the required degree of medical certainty is significant. As for Dr. Rudolf, his clinical experience with patients who suffer from conditions similar to Claimant’s is highly relevant to the disputed issues here. For that reason as well, I find his opinion more credible than Dr. Backus’.
21. In summary, I conclude that Claimant has sustained her burden of proving that she suffered a work-related injury as a result of her falls in Defendant’s parking lot on February 26, 2011 and/or March 2, 2011. I further conclude that her May 2011 arthroscopy constituted reasonable medical treatment causally related to the symptoms induced by that injury. Defendant is thereby responsible for the medical costs associated with this treatment. Defendant also is responsible for the period(s) of temporary total and/or temporary partial disability caused by the falls, which I conclude extended until August 17, 2011, the date on which Claimant underwent total knee replacement surgery.
22. I conclude that Claimant has not sustained her burden of proving that her work-related falls either aggravated the underlying arthritis in her knee or accelerated the need for total knee replacement surgery. That surgery was not causally related to her work injury, therefore, and Defendant is not obligated to pay any workers’ compensation benefits associated with it.
23. Claimant has submitted a request under 21 V.S.A. §678 for an award of costs totaling $4,044.02 and attorney fees totaling $9,294.50. As she has prevailed only on her claim for workers’ compensation benefits associated with her initial falls and subsequent arthroscopic surgery, she is entitled to an award of only those costs that relate directly thereto. Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003), citing Brown v. Whiting, Opinion No. 7-97WC (June 13, 1997). I conclude that the costs associated with Dr. Backus’ expert services, totaling $2,875.00, are not recoverable. The remaining amount, $1,169.02, is hereby awarded.
24. As for attorney fees, in cases where a claimant has only partially prevailed, the Commissioner typically exercises her discretion to award fees commensurate with the extent of the claimant’s success. Here I conclude that it is appropriate to award Claimant one-half of the total fees requested, or $4,647.25.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total and/or temporary partial disability benefits until August 17, 2011 in accordance with 21 V.S.A. §§642 and 646, with interest as calculated in accordance with 21 V.S.A. §664;
2. Medical benefits referable to Claimant’s May 12, 2011 arthroscopic surgery in accordance with 21 V.S.A. §640(a); and
3. Costs totaling $1,169.02 and attorney fees totaling $4,647.25 in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 29th day of March 2012.
_________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

William Belville v. RHC, Inc. dba Times Argus (July 29, 2009)

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

William Belville v. RHC, Inc. dba Times Argus (July 29, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
William Belville Opinion No. 29-09WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
RHC, Inc. d/b/a
Times Argus For: Patricia Moulton Powden
Commissioner
State File No. X-63007
OPINION AND ORDER
Hearing held in Montpelier on April 17, 2009
Record closed on May 22, 2009
APPEARANCES:
Craig Jarvis, Esq., for Claimant
Robert Cain, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant entitled to permanent partial disability benefits as a result of his May 24, 2006 compensable work injury?
2. If yes, to what extent, if any, should Claimant’s permanent partial impairment be apportioned between his May 2006 work injury and his pre-existing condition?
EXHIBITS:
Joint Exhibit I: Medical records
Defendant’s Exhibit 1: Curriculum vitae, William Boucher, M.D.
CLAIM:
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Interest pursuant to 21 V.S.A. §664
Costs and attorney fees pursuant to 21 V.S.A. §678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim. Judicial notice also is taken of relevant portions of the AMA Guides to the Evaluation of Permanent Impairment (5th ed.)(the “AMA Guides”).
3. Claimant has a varied work history. He has been a mason tender, a self-employed wood worker, a commercial truck driver, a parking garage superintendent and a microchip tester. At the time of the injury at issue here, he was employed part-time by Defendant as a newspaper delivery driver.
Claimant’s Prior Medical History
4. Claimant has a long and complicated history of low back injuries, surgeries and pain. His problems began in 1982, when he herniated his L4-5 disc while lifting a car at home. Claimant underwent an L4-5 laminectomy, after which he recovered well.
5. In 1989 Claimant suffered a work-related low back injury while employed for Casella Waste Management. Claimant treated conservatively for this injury, and his claim for workers’ compensation benefits was accepted. Claimant recalled being out of work for six to eight months, during which time he received temporary total disability benefits.
6. Claimant does not recall receiving any permanent partial disability benefits relating to his 1989 work injury. The Department’s computer record reflects that an Agreement for Permanent Partial Disability Compensation was filed in July 1990, but does not specify how many weeks of benefits were awarded. Both the Department’s and the employer’s paper files relating to this injury have been destroyed, and therefore there is no way at this point to verify what, if anything, was paid.
7. In late 1995 and early 1996 Claimant suffered two slip-and-falls on the ice, neither work-related, as a result of which his low back pain worsened and became chronic. In 1997 Claimant underwent surgery to implant a dorsal column stimulator; complications ensued and the device was removed and re-implanted in 1998, then ultimately removed permanently in 2000.
8. Also in 1997 Claimant was found entitled to Social Security Disability Insurance (SSDI) benefits because of his chronic disabling low back pain. There have been periods since then during which Claimant was able to work part-time (and a one-year stint of full-time employment as well), but he has never been pain-free. Claimant has been prescribed narcotic pain medications regularly since the mid-1990’s as treatment for his chronic pain.
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9. In 2005 Claimant underwent a surgical fusion at L5-S1. Following this surgery, Claimant felt much improved. Although still not pain-free, his low back pain moderated somewhat, and the symptoms he had been experiencing in his legs abated significantly. Despite these improvements, however, Claimant continued to receive SSDI benefits and worked only part-time. He also continued to use narcotic medications for chronic pain relief.
Claimant’s Work Injury
10. Claimant began working part-time for Defendant in April 2006. On May 24, 2006 he was involved in an accident while delivering papers when he was pinned by a forklift against the rear door of his truck. Claimant’s back hurt, and he left work early that day, but he did not immediately seek medical treatment. In fact, because he had promised to cover a co-employee’s vacation time in June, he continued to work until July 31, 2006. Claimant has not worked since.
11. Claimant testified that his low back pain is much worse since the May 2006 incident than it was at any time beforehand. It is unclear why this is so. Claimant’s current treating neurosurgeon, Dr. Jewell, has hypothesized that the forklift accident caused the nerves in the area of Claimant’s previous L5-S1 fusion to become stretched, but acknowledged that this was only a “guess,” unsupported by any scientific evidence, case reports or experience.
12. Claimant has consulted with both orthopedic and neurosurgeons as to whether there might be a surgical remedy for his chronic pain, but none have endorsed this approach with any conviction. He continues to use narcotic medications for pain control. According to a functional capacities evaluation completed in March 2008, he has no current work capacity.
Independent Medical Evaluations and Permanency Opinions
13. Claimant has undergone two independent medical evaluations – one with Dr. White, at his own attorney’s referral, and one with Dr. Boucher, at Defendant’s request. Although neither expert has been able to explain the anatomical basis for Claimant’s increased symptoms, both agree that his current complaints are causally related to the forklift incident. Both also agree that Claimant has reached an end medical result. The dispute between them centers on the appropriate permanency rating for Claimant’s condition. The analysis is complicated by the fact that Claimant has suffered prior injuries to his lumbar spine.
14. The AMA Guides provide two methods for calculating spinal impairment – the diagnosis-related estimate (DRE) method and the range-of-motion (ROM) method. The DRE method is generally favored, but in certain situations the Guides direct that the ROM method be used instead. Specifically, the Guides suggest that the ROM method be used “when there is multilevel involvement in the same spinal region,” AMA Guides §15.2, paragraph 2 at p. 380, or “where there is recurrent injury in the same spinal region,” Id. at paragraph 4.
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15. Dr. White determined that both of these exceptions applied to Claimant’s case – the first because he had suffered prior injuries at both L4-5 and L5-S1, and the second because the forklift incident had caused a repeat injury at the latter level. For those reasons, he applied the ROM method and concluded that Claimant now has a 26% whole person permanent impairment.
16. Dr. White next considered how much of that impairment probably pre-existed the forklift incident and therefore should be attributed to Claimant’s prior injuries instead. The AMA Guides offer guidance in this respect as well. Generally, the Guides suggest using a subtraction methodology – calculate the total current impairment, then subtract whatever impairment is referable to the prior injury; the remainder is the amount attributable to the current injury. AMA Guides §15.2a, paragraph 9 at p. 381. The Guides further state:
Ideally, use the same method to compare the individual’s prior and present conditions. If the ROM method has been used previously, it must be used again. If the previous evaluation was based on the DRE method and the individual now is evaluated with the ROM method, and prior ROM measurements do not exist to calculate a ROM impairment rating, the previous DRE percent can be subtracted from the ROM ratings. Because there are two methods and complete data may not exist on an earlier assessment, the apportionment calculation may be a less than ideal estimate.
Id.
17. No data exists from which to calculate Claimant’s prior impairment using the ROM method. With reference to the paragraph quoted above, Dr. White used the DRE method to determine that Claimant had suffered a 20% whole person impairment referable to his prior fusion surgery. Subtracting this amount from the 26% total current impairment Dr. White had derived using the ROM method, he concluded that Claimant had incurred a 6% whole person impairment referable to the forklift incident.
18. Dr. Boucher found Dr. White’s methodology to be flawed. In particular, he objected to Dr. White’s use of both the DRE and ROM methods in the same analysis. Dr. Boucher used a different approach. Noting that there was no objective evidence that the condition of Claimant’s spine had changed at all as a result of the forklift incident, he concluded that the DRE method properly should be applied to determine the extent of Claimant’s current impairment, not the ROM method. According to Dr. Boucher, doing so offered the further advantage of allowing for both the current and the prior impairment to be calculated via the same methodology.
19. Claimant’s impairment rating under the DRE method is straightforward. Both before and after the forklift incident, his L5-S1 fusion places him in Category IV, a 20-23% whole person impairment. The forklift incident having had no impact on the appropriate diagnosis-related category, according to Dr. Boucher’s analysis that event caused no additional permanent impairment, and therefore there is nothing to apportion.
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20. Both Dr. White and Dr. Boucher are well known to this Department as qualified experts. Both have substantial experience rating permanency in accordance with the AMA Guides. The fact that each used a different methodology to arrive at his impairment rating reflects their different interpretations of the same sections of the Guides.
21. With Dr. Boucher’s end medical result determination as support, Defendant terminated Claimant’s temporary disability benefits on April 28, 2008. Claimant’s compensation rate for permanent partial disability benefits as of that date was $186.76, updated to $194.23 as of July 1, 2008.
22. Claimant was 48 years old on April 28, 2008. According to Vermont’s Medicaid Manual, his remaining life expectancy as of that date was 28 years, or 336 months.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The dispute here centers on the extent, if any, of the permanent impairment Claimant suffered as a result of the forklift incident. Vermont’s workers’ compensation statute specifically designates the AMA Guides as the controlling authority for making such a determination. 21 V.S.A. §648(b). Unfortunately, however, the Guides are not always so clear as to be subject to only one interpretation, and well-qualified medical experts often disagree as to their application in particular circumstances.
3. Here, I find Dr. White’s interpretation of the relevant sections of the Guides to be more compelling than Dr. Boucher’s. I agree with his reading of the Guides as directing that the ROM method be used in situations where, as here, a patient has suffered a recurrent injury to the same spinal region.1 I accept as valid, therefore, his conclusion that Claimant’s current total impairment is 26% whole person, calculated in accordance with that method.
4. I also concur with Dr. White’s assessment that the Guides contemplate circumstances in which it is necessary to mix a ROM-based impairment calculation with a DRE-based one in order to make an appropriate determination as to apportionment. Claimant’s case presents one of those circumstances. I accept Dr. White’s assessment that the extent of Claimant’s impairment attributable to the forklift incident is 6%.
1 Of note, the use of the term “recurrent” in the context of the AMA Guides should not be interpreted to conflict in any way with both Dr. White’s and Dr. Boucher’s determination that Claimant suffered an “aggravation” as a result of the forklift incident. Both terms have legal meanings completely distinct from their medical usage. Rolfe v. Textron, Inc., Opinion No. 08-00WC (May 16, 2000).
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5. What remains to be determined is whether apportionment is appropriate under the particular circumstances of this case. The AMA Guides specifically defer to state law on this issue. Kearney v. Addison-Rutland Supervisory Union, Opinion No. 21-09WC (June 24, 2000) (citing to §§1.6b, 2.5h and 15.2a of the AMA Guides); Langdell v. G.W. Savage Corp., Opinion No. 19-09WC (June 24, 2009) (same).
6. Vermont’s workers’ compensation statute requires apportionment in cases where a prior impairment has been both rated and paid. 21 V.S.A. §648(d). Absent those specific circumstances, the Commissioner retains discretion whether to apportion or not. Kearney, supra.
7. Although there is evidence in the current claim that Claimant’s prior impairment was rated, it is unclear whether anything was ever paid. The statute requires evidence of both a prior rating and prior payment in order for mandatory apportionment to be triggered. Langdell, supra. Thus, I conclude that the decision whether to allow apportionment here lies within my discretion, but is not required by the statute.
8. I am mindful of the remedial purpose of Vermont’s workers’ compensation statute, and the requirement that it be construed broadly in order to make injured workers “whole.” Hodgeman v. Jard Co., 157 Vt. 461, 464 (1991). Nevertheless, I am convinced that to award Claimant all of the permanency Dr. White has rated, with no apportionment at all for his many previous injuries, would be an abuse of discretion. The fact is Claimant’s prior spine injuries had caused him to be significantly disabled even before the forklift incident. He was receiving SSDI benefits, he was working only part-time and he was taking narcotic medications for chronic pain. These consequences did not result from the forklift incident; they were merely continued by it.
9. Claimant’s situation is distinguishable from that of the claimants in other recently decided apportionment claims. Kearney, supra; Murray v. Home Depot USA, Inc., Opinion No. 41-08WC (October 20, 2008); Kapusta v. State of Vermont Department of Health, Opinion No. 36-08WC (September 4, 2008). In each of those claims, the prior condition was no longer disabling and had resulted in few, if any, functional limitations at the time of the work injury. The difference between the circumstances of those claimants and the situation presented here is significant. Apportionment would have prevented those claimants from being made “whole.” Fairness dictates a different result in this case.
10. I conclude, therefore, that under the specific facts of this claim, it is appropriate to award Claimant only the permanency attributable to the forklift incident – 6% whole person according to Dr. White – and to apportion away that part of the total that is referable instead to his prior injuries.
11. Pursuant to 21 V.S.A. §652(c), Claimant is entitled to have these permanency benefits prorated over his life expectancy. In accordance with Finding of Fact No. 21 above, Claimant’s 6% permanency award totals $6,340.87. In accordance with Finding of Fact No. 22 above, and not including any reduction for attorney fees, Claimant’s permanency award is prorated at the rate of $18.87 per month for the remainder of his life expectancy.
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12. Claimant has filed a request for costs totaling $3,247.22 and attorney fees totaling $5,175.00 (57.5 hours at the mandated rate of $90.00 per hour). An award of costs to a prevailing claimant is mandatory under the statute. Although Claimant has only partially prevailed, it is impossible under the circumstances to separate out those costs that relate only to his successful claim. See Abare v. Ben & Jerry’s, Opinion No. 44-08WC (November 5, 2008); Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003). I decline to do so, therefore, and instead I award Claimant all of the costs he has requested.
13. As for attorney fees, in cases where a claimant has only partially prevailed, the Commissioner typically exercises her discretion to award fees commensurate with the extent of the claimant’s success. I find it appropriate to award Claimant 25% of the fees he has requested, or $1,293.75.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Permanent partial disability benefits totaling $6,340.87, representing a 6% whole person impairment to the spine;
2. Interest on the above amount pursuant to 21 V.S.A. §664, calculated from April 28, 2008;
3. Costs totaling $3,247.22 and attorney fees totaling $1,293.75.
DATED at Montpelier, Vermont this 29th day of July 2009.
__________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

N. K. v. State of Vermont, Department of Health (September 4, 2008)

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

N. K. v. State of Vermont, Department of Health (September 4, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
N. K. Opinion No. 36-08WC
v. By: Jane Dimotsis
Hearing Officer
State of Vermont Adam Sherwin
Dept. of Health/Risk Management Law Clerk
For: Patricia Moulton Powden
Commissioner
State File No. W-05732
APPEARANCES:
Christopher McVeigh, Esq. for the Claimant
Andrew C. Boxer, Esq. for the Defendant
ISSUE:
Should Claimant’s present degree of permanent partial disability be apportioned between the impairment from a pre-existing non-work related surgery and that attributable solely to her left hip work related injury?
EXHIBITS:
Joint Exhibit: Medical Records
Claimant’s Exhibit: Nancy Kapusta’s Deposition
FINDINGS OF FACT:
1. Claimant is a health outreach specialist for the Vermont Department of Health. She works in both the Barre and Morrisville offices, and has been employed by the State of Vermont since 1987.
2. On October 27, 2004, Claimant had replacement surgery for her left hip. This surgery was not related to her work, and her employer did not compensate her for it. The surgery was performed by Dr. Glen Neale, M.D. The Claimant was able to return to work in six weeks on a full time basis and did not need any pain medication following her return to work. She was physically able to continue to do all the activities she was able to do prior to this injury.
3. On February 8, 2005, Claimant slipped on the ice while heading out of her office to her car. This caused her hip and thigh area to twist, resulting in immediate pain.
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4. Since this incident, Claimant has had pain in her left hip. She takes over the counter pain medication daily. The slip and twist injury has caused her difficulty in walking up and down the stairs at work, and has forced her to use the elevator. She also has trouble carrying items in front of her, which causes pain in her hip and thigh area. Additionally, she has difficulty walking, and begins to limp at the end of the day. The injury has also limited her ability to walk, ride a bicycle, hunt and exercise at the gym; all activities that she previously enjoyed.
5. The work injury was accepted by the Defendant’s insurer and the Claimant has been receiving permanent partial disability payments from the day after her work injury. This was awarded voluntarily and without prejudice to the Defendant.
6. Dr. Glen Neale treated the Claimant for the twist and fall at work. On September 26, 2006, he wrote to the Defendant and estimated that based on the American Medical Association Guides of Permanent Impairment (“AMA Guides”), Claimant suffered a 6% whole person impairment from her injury on February 8, 2005. On January 16, 2007, Dr. Neale either changed his opinion or expanded on his opinion and wrote to the Defendant that based on his interpretation of the AMA Guides, Claimant suffered a 15% whole person impairment for her hip injury using the Harris Hip Score and measure function and pain both pre and post hip arthroplasty. While the AMA Guides indicate that the impairment was in part the result of the prior surgery, Dr. Neale believed 15% whole person impairment was appropriate since the Claimant had no pain prior to her fall on her hip at work. He believed that her measurable, functional impairment resulted from her February 8, 2005, slip and twist at work. This is outlined in his letter of January 17, 2007.
7. On March 16, 2007, Dr. Verne Backus conducted an independent medical examination (“IME”) of the Claimant. He found that the condition of her hip after the surgery had been aggravated by her work-related injury. Additionally, he found that she had 20% whole person impairment. Of this impairment, 5% was the result of her injury at work and 15% was the result of her prior surgery. He disagreed with Dr. Neale on his reasoning and use of the AMA Guides. Dr. Neale used muscle weakness in his evaluation which is not commonly used under the AMA Guides. Dr. Backus found the Claimant’s prior hip arthroplasty and condition were aggravated by her fall at work. However, he also stated that 5% was the proper amount of impairment under the AMA Guides for the Claimant’s work related fall and 15% was the proper amount for her prior hip replacement surgery with good result. He stated he did not know how the 20% should be apportioned under Vermont law.
8. Both doctors agreed that the incident at work could result in the Claimant having a “replacement arthroplasty”.
9. Attorney’s costs in the amount of $383.59 were requested as well as attorney’s fees in the amount of $9,000.00 or 20% of her recovery, whichever is less.
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CONCLUSIONS OF LAW
1. First, it must be determined whether Claimant has suffered an injury from work, and whether any of her impairment is the result of her previous surgery.
2. In a workers’ compensation claim, it is the burden of the claimant to establish all facts essential to support his claim. King v. Snide, 144 Vt. 395 (1984); Goodwin v. Fairbanks, Morse and Co., 123 Vt. 161 (1963). Sufficient competent evidence must be submitted verifying 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). Here, Claimant has met this burden, and this dispute is over the appropriate apportionment rating for her injury.
3. The major disagreement between the parties is whether the Claimant should receive the 20% whole person rating for her work related injury or whether the 20% should be apportioned due to her prior hip surgery. The Department finds Dr. Backus’s opinion regarding the Claimant’s permanency rating more persuasive then that of Dr. Neale. Dr. Backus’s experience in using the AMA Guides and his status as an Independent Medical Examiner outweigh that of Dr. Neale’s experience and use of the AMA Guides.
4. Consequently, I find that Claimant suffered a work-related injury as a result of her accident at work. This caused a 20% permanent partial impairment, with 15% being the result of her previous hip surgery with a good result and the remaining 5% being the result of her accident at work.
5. Next, it must be determined whether Claimant’s present degree of permanent partial disability should be apportioned between impairment from a pre-existing surgery and one that is attributable solely to the work related injury.
6. The statutes provide under 21 V.S.A § 648(d), that apportionment must be made or subtracted for a pre-existing impairment where compensation has been paid. The second statutory reference states, under 21 V.S.A § 648(b), that any determination of impairment shall be made only in accordance with the AMA guidelines.
7. The AMA Guides, 5th Edition, page 12 provides that most states have their own customized methods for calculating apportionment. Thus, the AMA Guides acknowledge that apportionment is one of the issues that are decided differently in different states. There is, therefore, no mandate from the Guides requiring the Department to apportion.
8. The Commissioner addressed this issue under the 4th Edition of the AMA Guides, and wrote:
“I think the AMA Guides’ procedure and 21 § 648(d) can be reconciled as follows: impairment ratings must be reduced for pre-existing impairments where compensation has been paid, and may be reduced by the physician if valid evidence of a defined pre-existing injury exists.” Miller v Cornwall Grounds, Opinion No. 20-97WC (August4, 1997). (emphasis added.)
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9. Thus, while 21 V.S.A § 648(d) requires that impairments must be reduced for pre-existing impairments where compensation has been paid, 21 V.S.A § 648(b) gives the Department discretion in apportioning permanency if valid evidence exists for a pre-existing injury pursuant to the AMA Guides.
10. The fact that the Vermont’s Workers’ Compensation Act “makes no exceptional provision for apportionment of the compensation or medical benefits between the injury and the pre-existing disease,” also strengthens the decision that the Department has discretion over the apportionment issue. Marsigli Estate v. Granite City Auto Sales, 124 Vt. 95 (1963). As the Vermont Supreme Court stated in Stamper v University Apartments, Inc., 147 Vt. 552 (1986), the Department or Commissioner has discretion regarding the permanency issue and the statutory scheme “does not require the commissioner to make […] a determination of the relative contributions of the accident at issue and prior disease to the end result…..”
11. Generally, the Department has approved apportioning permanency in cases where the prior injury is completely unrelated to the present injury. In Aker v. ALIIC, Opinion No. 53-98WC (Nov. 5, 1998), the Department approved apportioning permanency for a claimant who had suffered a non work-related injury years before his work-related injury. The Department apportioned permanency because the pre-existing condition did not combine with the work-related injury to cause permanent disability.
12. Unlike Aker, where the pre-existing condition did not combine with the work-related injury, here Claimant’s slip on the ice and twisting of her hip was directly related to her hip surgery only four months prior. This is because both the surgery and the work-related injury involved Claimant’s hip, and her impairment from the surgery exacerbated her work-related injury.
13. Defendant also argues that apportionment of permanency is appropriate when the injury has not substantially interfered with Claimant’s daily and leisure activities. While I agree that Claimant’s injury has not completely impaired her ability to work, I reject Defendant’s argument that the injury suffered at work did not result in serious limitations of the Claimant’s ability to function in her daily life and at work. It is clear under Vermont law that an aggravation or acceleration of a preexisting condition by an employment accident is compensable under the worker’s compensation law. Jackson v. True Temper Corp., 151 Vt. 592 (1989); Campbell v. Heinrich Savelberg, Inc., 139 Vt. 31 (1980). Claimant was not at all limited prior to her work injury. She was recovering from successful hip surgery and would not be limited or in pain at all if not for her work injury aggravating the condition. Thus, it is appropriate for the Department to exercise its discretion and not apportion the impairment from the prior hip surgery.
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ORDER:
Based on the foregoing Findings of Fact and Conclusions of Law, the insurer should readjust the claim as follows and pay:
1. 20% partial permanency with medical end result having been achieved and paid at the legal rate pursuant to 21 V.S.A. § 664 from the date the benefit was due (date of the injury) until paid; and
2. Attorney’s costs in the amount of $383.59, and Claimant’s attorney’s fees determined reasonable in the amount of 41.2 hours at $90.00 per hour.
DATED at Montpelier, Vermont this 4th day of September 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. §§ 670, 672.

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