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Karen Hathaway v. C & S Wholesale Grocers, Inc (November 17, 2011)

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Karen Hathaway v. C & S Wholesale Grocers, Inc (November 17, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Karen Hathaway Opinion No. 39-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
C & S Wholesale Grocers, Inc.
For: Anne M. Noonan
Commissioner
State File No. Z-58166
OPINION AND ORDER
Hearing held in Montpelier on August 26, 2011
Record closed on October 11, 2011
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
J. Christopher Callahan, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant’s psychological disorder compensable as a consequence of her January 2, 2008 work-related shoulder injury?
EXHIBITS:
Joint Exhibit I: Medical records
CLAIM:
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 contained in the Department’s file relating to this claim.
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3. Claimant worked at Defendant’s South Burlington, Vermont Grand Union store for more than 29 years. For the last 19 years of her tenure there she was assigned to the deli department, first as assistant manager and then as manager. Claimant was highly invested in her job and took great pride in her abilities. She was so successful at running the deli in her store that at times Defendant would assign her the task of visiting other stores’ delis in order to analyze how they might improve their operations.
4. On January 2, 2008 Claimant was exiting the cooler at her store when she slipped on the floor and fell hard on her right shoulder. Claimant suffered a torn rotator cuff as a result of this fall. Defendant accepted the injury as compensable and began paying medical benefits accordingly.
5. Initially Claimant treated conservatively for her injury. Rumors were circulating that the South Burlington store might be closing, and she was as committed as ever to making sure that her deli continued to be profitable. For that reason, even though her shoulder hurt she was reluctant to consider surgery, because she did not want to have to take time off from work to recover.
6. In August 2008 Claimant learned that the South Burlington store was in fact closing. Shortly thereafter, she was contacted by Ray Bouffard, a Grand Union store manager with whom she had worked in the past. Mr. Bouffard offered Claimant a job as deli manager of the store he now owned, the Georgia Market. Claimant accepted the offer with little if any hesitation.
7. Claimant began working at the Georgia Market on August 13, 2008. She was excited to be part of a new, family-oriented operation. Claimant set to work re-organizing the deli, training the staff and making other improvements. Deli sales doubled, and she perceived that Mr. Bouffard was very happy with her job performance.
8. Unfortunately, Claimant’s shoulder continued to cause her constant pain and discomfort, particularly when lifting objects overhead or away from her body. Still she struggled to avoid surgery, because she did not want to be away from her job. Instead she intensified her efforts at physical therapy.
9. By February 2009 Claimant acknowledged that her symptoms were such that she could not avoid shoulder surgery any longer. Thereafter, on April 21, 2009 Dr. Lawlis, her orthopedic surgeon, arthroscopically repaired a very large tear in her rotator cuff and re-anchored her biceps tendon with hardware. Claimant continued working until the day before her surgery.
10. Claimant endured a protracted recovery from surgery. Despite aggressive physical therapy, she continued to experience stiffness, pain and weakness in her shoulder. As a result, she was not released to return to work until mid-September 2009. In the interim, Claimant visited the Georgia Market several times, just to check in and also to reassure Mr. Bouffard and her co-employees that she would be returning to work as soon as she was able.
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11. Claimant’s September 2009 work release restricted her to part-time work, with limitations against lifting more than 5 to 8 pounds, a restriction that Mr. Bouffard was unable to accommodate. Consequently, Claimant remained out of work for another month.
12. In early October 2009 Dr. Lawlis released Claimant to return to work essentially without restrictions, the only caveat being that she be allowed to “back off” whenever her symptoms flared to the point of diminishing her function. Dr. Lawlis also recommended that Claimant return initially to part-time work, and gradually increase her hours back to full time.
13. Consistent with Dr. Lawlis’ release, Claimant returned to work at the Georgia Market in October 2009. Her shoulder continued to hurt, particularly with lifting objects out away from her body, but she tried to manage as best she could, as she did not want to go back out of work again.
14. At some point after she returned to work, Claimant began to feel that Mr. Bouffard’s attitude towards her had changed. Rather than being reassigned her managerial duties, Claimant found herself relegated to more physical tasks, such as cleaning. Her co-employees in the deli chafed at her attempts to supervise them and when pressed, Mr. Bouffard failed to support her efforts in this regard. Although upset at the apparent loss of her managerial responsibilities, Claimant resolved to soldier on.
15. Matters came to a head on December 17, 2009. Working by herself in the deli, Claimant attempted to pick up a fryer basket, but it was too heavy for her and she dropped it, the contents spilling all over. Claimant broke down in tears and as she described, “totally lost it.” In that moment, Claimant recalled, “I knew I was like, doomed, I couldn’t do my job, and I was like, scared and like, what am I gonna do now, they’re probably realizing that I can’t do my job, that’s the only thing I know.” Feeling panicked, she told the store manager she was sick and then left work.
16. The next day Claimant sought treatment with Mary-Ellen Giroux, a psychologist. In all, Claimant underwent three counseling sessions with Ms. Giroux, the last one in early January 2010. Ms. Giroux has a masters’ degree in clinical psychology and has been a licensed psychologist for more than twenty years. She routinely counsels patients with chronic pain, and also provides psychological counseling as part of an interdisciplinary program for people who suffer work-related injuries.
17. Ms. Giroux testified on Claimant’s behalf at the formal hearing. She concluded that the stressors associated with Claimant’s work-related shoulder injury, including her residual pain and physical restrictions, a demoralizing work environment and the fear of losing her job, all contributed to cause the psychological distress that Claimant exhibited in December 2009. As Ms. Giroux reasoned, Claimant was a person with a strong work ethic, whose work life had always been very important to her. When threatened as a result of her shoulder injury and its residual physical limitations with the prospect of losing her job, she became unable to handle the psychological stress any longer. I find this analysis credible in all respects.
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18. Although neither Dr. Hebert, Claimant’s primary care physician, nor Dr. Lawlis, her orthopedic surgeon, testified at the formal hearing, both made comments in their office notes consistent with Ms. Giroux’s analysis. Following the December 2009 incident, both remarked that Claimant was exhibiting symptoms of depression, anxiety and stress causally related to her physical limitations, which she feared would preclude her from being able to continue with the type of work she had been doing for more than twenty years. Both also noted as an additional stressor Claimant’s perception that neither her boss nor her co-workers were supportive of her.
19. After the December 2009 incident Claimant continued to be scared and concerned about her ongoing symptoms. A March 2010 MRI study revealed that one of the biceps tendon anchors in her shoulder had loosened. In June 2010 Claimant underwent additional arthroscopic surgery to address this issue. Her symptoms have persisted, and now a third surgery has been recommended.
Defendant’s Offer of Judgment
20. In addition to the question whether Claimant’s psychological disorder and subsequent psychological treatment was compensable, initially the parties anticipated that three other issues would be litigated at the formal hearing as well: (1) Whether Claimant’s husband was entitled to payment for two days of respite care services that he provided following Claimant’s June 2010 surgery; (2) Whether Defendant was obligated to pay for emergency room treatment for pneumonia-like symptoms that developed shortly after that surgery; and (3) Whether Claimant was entitled to temporary total disability benefits for the two-week period from December 19, 2009 through January 2, 2010.
21. Just prior to commencing the formal hearing, Defendant made an offer of judgment, pursuant to V.R.C.P. 68, to resolve all issues other than those related to the compensability of Claimant’s psychological disorder. With minor revisions, Claimant accepted the offer, and the hearing proceeded solely on the remaining issue. The offer of judgment did not include any consideration of attorney fees.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
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2. Claimant here presents a “physical-mental” claim – one in which a compensable physical injury provokes a psychological injury as well. If there is sufficient medical evidence to establish a causal connection between the former and the latter, then the psychological injury is deemed to have arisen out of the physical injury and therefore becomes compensable. Vach v. Twin City Subaru, Opinion No. 02-00WC (March 24, 2000); Blais v. Church of Jesus Christ of Latter Day Saints, Opinion No. 30-99WC (July 30, 1999); see generally, 3 Lex K. Larson, Larson’s Workers’ Compensation §56.03[3] (Matthew Bender, Rev. Ed.), and cases cited therein.
3. To establish the required connection, Claimant presented testimony from her treating psychologist, Ms. Giroux. Ms. Giroux credibly testified that at least in part as a consequence of the physical limitations that resulted from Claimant’s right shoulder injury, she became anxious and depressed. She was frustrated with her prolonged recovery and residual pain, and feared losing her job if she was unable to perform the more physically demanding duties assigned to her. Ms. Giroux thus confirmed a direct causal link between the physical consequences of Claimant’s shoulder injury and the psychological injury that became evident as her attempted return to work stalled.
4. Defendant presented no countervailing expert testimony. It seeks instead to characterize Ms. Giroux’s testimony as establishing Claimant’s distress at the lack of support she perceived from her boss and co-workers as the sole cause of her depression, stress and anxiety. Such “post-injury dissatisfaction with her work environment,” Defendant argues, is an insufficient basis for connecting Claimant’s psychological injury back to her physical injury. See, e.g., A.B. v. State of Vermont Department of Corrections, Opinion No. 09-06WC (February 17, 2006).
5. I acknowledge that the unwelcoming environment in which Claimant found herself upon returning to work likely contributed to her psychological distress. I cannot reasonably conclude that this was the sole cause, however. Neither Ms. Giroux’s testimony nor her written reports were nearly so limiting. Other factors more directly related to Claimant’s physical injury were at play as well, and substantially so. Indeed, the immediate cause of Claimant’s panic attack at work on December 17, 2009 was her inability to handle the physical requirements of her job, not any perceived slights from either Mr. Bouffard or her co-workers.
6. Medical causation is often multi-factorial. Harrington v. John A. Russell Corp., Opinion No. 29-10WC (August 30, 2010). The fact that personal stressors may play some part in causing the psychological portion of a “physical-mental” claim to develop is not dispositive unless the medical evidence clearly establishes them to be the superseding cause of the resulting injury. See Jackson v. True Temper Corp., 151 Vt. 592, 597 (1989). That was not the case here.
7. I conclude that Claimant’s evidence amply demonstrates the necessary causal link between her physical injury and her psychological symptoms so as to render treatment for the latter compensable.
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8. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $954.14 and attorney fees totaling $13,168.00, in accordance with Workers’ Compensation Rule 10.1210. An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded.
9. As for attorney fees, these lie within the Commissioner’s discretion. The proper exercise of that discretion is complicated here by the fact that three of the four claims to be litigated were settled by way of Defendant’s offer of judgment, which it made literally as the formal hearing was commencing. Awarding fees in such circumstances requires consideration of three competing interests. First, there is a public interest against forcing an injured worker to incur substantial legal fees in pursuing a valid claim only to have the employer settle “on the courthouse steps.” There is an equally strong interest, however, in encouraging litigants to settle disputed claims whenever it becomes appropriate to do so. Last, I must acknowledge the Department’s important interest, given its scarce judicial resources, in minimizing satellite litigation over attorney fees. R.M. v. E.F. Wall & Associates, Inc., Opinion No. 37-05WC (July 20, 2005).
10. To balance the competing interests here, I have considered not only the extent to which each party’s litigation posture was reasonably based, but also whether Defendant’s decision to settle was timely presented given the evidence available to it. I also have considered the small number of attorney hours billed that were directly attributable to the settled claims. I conclude that it is appropriate to deduct $500.00 from the total requested.
11. As for the remaining fees, Defendant has requested additional time to consider whether to challenge their reasonableness. Defendant shall have two weeks from the date of this decision within which to do so.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Medical benefits covering all reasonable and necessary medical and/or psychological services and supplies causally related to treatment of Claimant’s compensable psychological injury, in accordance with 21 V.S.A. §640; and
2. Costs totaling $954.14 and attorney fees in an amount to be determined in accordance with 21 V.S.A. §678 and Conclusion of Law Nos. 9 and 10 above.
DATED at Montpelier, Vermont this 17th day of November 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.

Deborah Lydy v. Trustaff Inc (February 8, 2012)

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

Deborah Lydy v. Trustaff Inc (February 8, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Deborah Lydy Opinion No. 05-12WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Trustaff, Inc.
For: Anne M. Noonan
Commissioner
State File No. Z-63780
OPINION AND ORDER
Hearing held in Montpelier, Vermont on November 8 and 14, 2011
Record closed on December 22, 2011
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Jeffrey Dickson, Esq., for Defendant
ISSUES PRESENTED:
1. Did Claimant suffer a psychological injury as a result of her May 20, 2008 work-related accident?
2. Did Claimant suffer a left ankle injury as a result of her May 20, 2008 work-related accident?
3. Did Claimant suffer a left knee injury as a result of her May 20, 2008 work-related accident?
4. Should Defendant’s contribution to Claimant’s group health insurance premium be included in her average weekly wage and compensation rate calculation?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Dr. Youngjohn’s MMPI-2-RF Interpretive Report
(under seal)
Claimant’s Exhibit 2: July 22, 2010 letter detailing health insurance premium contributions
Claimant’s Exhibit 3: Dr. Selz’s MMPI-2 Extended Score Report (under seal)
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CLAIM:
Temporary total disability benefits to include the value of Defendant’s contributions to Claimant’s group health insurance premiums pursuant to 21 V.S.A. §642
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 contained in the Department’s file relating to this claim.
Claimant’s May 2008 Work-Related Accident
3. Claimant is a licensed practical nurse who worked for Defendant as a “traveler.” That is, even though she lived in New Jersey with her son she agreed to a 13-week placement in a Rutland, Vermont nursing home. As part of her remuneration, Defendant provided her with local housing.
4. On May 20, 2008 Claimant reported to work for her third shift duty. As she was being briefed on the prior shift’s activities, she noticed a patient’s call light activate. Claimant responded to the call light and entered the patient’s room. The room was dark except for a night light.
5. The patient appeared to be sleeping as Claimant approached her bed, which was low to the floor and did not have side rails. As Claimant bent down to ask the patient how she could assist her, the patient reared up, grabbed Claimant by the hair, jerked her down and started shaking her violently. For two or three minutes she shook Claimant by the hair, digging her nails into Claimant’s scalp and drawing blood. The incident ended when another nurse came to Claimant’s aid and disentangled her from the patient’s grasp.
6. Claimant testified credibly that during the attack she felt afraid and helpless. As a medical professional, she did not consider it an option to defend herself against her patient’s aggression.
7. After she collected herself, Claimant realized that both her left knee and her left foot hurt, and also that she had a burning sensation in her neck. She ended her shift early and went to the emergency room. There she was diagnosed with an acute cervical strain and a fracture of her left great toe. For her neck injury she was advised to apply ice and to wear a sling to immobilize her left arm. For her toe fracture she was instructed to wear orthotic shoes. The emergency room records do not reference any complaints of, or treatment for, left foot or knee pain.
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8. Defendant accepted Claimant’s neck and left toe injuries as compensable and began paying workers’ compensation benefits accordingly.
9. Claimant was released to return to desk work only in three days’ time. Unfortunately, Defendant had no desk duty available, and instead advised her that unless she was 100 percent recovered it would not allow her to return to work. In that event, furthermore, it would no longer pay for her housing in Vermont. Claimant could not afford this. Having no personal ties to Vermont outside of her job, she decided to move with her son to Arizona.
10. Claimant, her son and his fiancé moved to Arizona almost immediately. In July 2008 she obtained employment at Desert Life Rehabilitation and Care Center, a long term care facility. Claimant worked in different capacities for Desert Life’s parent company until November 2009. At that point, her treating physician disabled her from working on account of her cervical injury and Defendant commenced paying temporary total disability benefits. As of the formal hearing, Claimant had not yet returned to work.
Claimant’s Psychosocial History
11. Claimant suffered through a physically and emotionally abusive childhood and adolescence. She ran away when she was 14 years old and hitchhiked to the Woodstock music festival when she was 15. When she was 17, she gave birth to a child, but her mother told her it was stillborn and then secretly put it up for adoption.
12. When Claimant was 18 years old she was the victim of a brutal sexual assault. Her assailant pulled her by her hair from her car one night, dragged her to the edge of the woods and repeatedly assaulted her sexually at gunpoint. When Claimant struggled against her attacker, he subdued her by grabbing her hair and pulling her to the ground.
13. Claimant never received any type of therapeutic intervention for this horrific crime, though she did attempt to overdose shortly afterwards. Ultimately she compartmentalized the psychological effects of the assault and in her own credible words, “just moved on.”
14. When Claimant was in her twenties she obtained her GED, and then became certified as a respiratory therapist. After nine years in this profession she returned to school and obtained her licensed practical nurse certificate. Claimant had three failed marriages, and was the sole bread winner for her four sons. In order to provide for her children, she consistently worked throughout her adult life, sometimes moonlighting at a second job or working overtime to make ends meet.
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Claimant’s Psychological Symptoms after Moving to Arizona
15. Within a few months after settling in Arizona, Claimant’s sons began to notice that she was behaving strangely. She constantly cried, and refused to leave the house for any reason other than to go to work. She feared for her safety, and became hyper-vigilant about checking and rechecking her doors and windows to make sure they were locked. She experienced anxiety attacks while driving, and therefore refused to do so. At work she compulsively counted and recounted patient medications for fear of making a mistake. She was afraid of the dark. Previously Claimant had been a social person, but now she no longer found pleasure in activities she used to enjoy, and was becoming estranged from her sons as well.
16. Claimant ultimately developed night terrors. Several times a week she dreamed about the sexual assault that had occurred when she was 18 years old, something she had never done before. These and her other psychological symptoms still persist. At the formal hearing Claimant credibly described her existence as, “I don’t have a life.”
Claimant’s Medical Treatment in Arizona
17. Claimant had difficulty treating for her accident-related health issues when she first arrived in Arizona, because the medical providers there were reluctant to accept out-of-state workers’ compensation coverage. Defendant finally arranged for her to see Dr. Ransom, an orthopedic surgeon, nine months after she arrived there for treatment of her cervical spine injuries.1
(a) Claimant’s Left Ankle Injury
18. In June 2009 Claimant began treating with Dr. Ransom for complaints of left ankle pain, which she attributed to her May 2008 work accident. In follow-up appointments, Dr. Ransom observed lateral swelling on the left side of Claimant’s left foot and mild tenderness in the area as well.
19. Dr. Ransom diagnosed Claimant with a left ankle sprain, but never stated an opinion as to whether this injury was causally related to her May 2008 work accident or not.
20. In December 2009 and September 2010, Claimant underwent independent medical examinations as to her cervical spine injury with Dr. Eskay-Auerbach, an orthopedic surgeon. During the course of her examinations, Dr. Eskay-Auerbach noted that the lateral aspect of Claimant’s left foot was swollen and tender to palpation. She did not offer any diagnosis for this condition.
1 Defendant had accepted as compensable Claimant’s neck strain and left upper extremity radiculopathy. As treatment for these injuries she ultimately underwent cervical fusion surgery.
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21. Dr. Eskay-Auerbach concluded that Claimant’s left ankle injury most likely was not causally related to her May 2008 work accident. As grounds for her conclusion, she noted first, that there was no report of ankle pain in the contemporaneous emergency room record immediately following that incident, and second, that if the pain had been present for a long time, it likely would have been evaluated some time ago. Given the circumstances surrounding Claimant’s relocation to Arizona, and particularly the difficulty she encountered in arranging medical care, I find Dr. Eskay-Auerbach’s reasoning in this regard somewhat unpersuasive.
(b) Claimant’s Left Knee Injury
22. In October and November 2010 Claimant treated with Dr. Arnold, an orthopedic surgeon, for left knee and hip pain. Claimant reported to Dr. Arnold that she had been suffering from left knee pain since her work-related accident in May 2008. Dr. Arnold diagnosed Claimant with tendonitis in her knee and bursitis in her hip. He did not state an opinion as to whether these injuries were causally related to Claimant’s work accident or not.
(c) Claimant’s Psychological Injury
23. As both Dr. Ransom’s and Dr. Arnold’s medical records reflect, Claimant consistently denied during her office visits with them that she suffered from depression, anxiety, substance abuse or suicidal ideation. Claimant did acknowledge, in a second independent medical examination with Dr. Eskay-Auerbach in August 2010, that she was depressed. Even then, though, she attributed her depression to difficulty sleeping due to chronic pain, not to any psychological trauma per se.
24. It was not until December 2010 that Claimant first admitted the extent of her psychological distress to a medical provider. Specifically, she reported to Dr. Christiano, the neurosurgeon who was treating her cervical spine injury, that she was experiencing night terrors, had become reclusive and withdrawn and was compulsive about the safety of her home. Upon learning of these psychological symptoms, Dr. Christiano referred Claimant to Dr. Selz, a clinical psychologist, for treatment.
(i) Dr. Selz’ Causation Opinion
25. In addition to her credentials as a clinical psychologist, Dr. Selz also is certified as a Diplomate in neuropsychology by the American Board of Professional Neuropsychologists. Dr. Selz’ practice includes both evaluation and treatment. While most neuropsychologists do not engage in psychotherapy, Dr. Selz does.
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26. Dr. Selz evaluated Claimant on one occasion, in March 2011. In the course of that evaluation, which lasted for approximately one hour, she administered the MMPI-2, which is the gold standard of personality tests. In Dr. Selz’ assessment, Claimant responded truthfully and credibly to the questions put to her. According to the computer-generated interpretation of Claimant’s MMPI-2 results, she did not omit any answers and endorsed items consistently and accurately.2
27. Dr. Selz concluded that Claimant’s May 2008 work accident triggered repressed emotions dating back to the sexual assault she had suffered when she was 18. While Dr. Selz could not say conclusively why the work injury prompted such a psychological response, she was certain it was the causal link for the following reasons:
• Subsequent to the sexual assault, Claimant was able to carry on with her life without external evidence of serious problems. She was consistently employed, raised her four sons successfully with little if any support and functioned well both within her family and in her community.
• There was no evidence of any existent psychiatric distress prior to the May 20, 2008 work injury.
• The May 2008 assault at work was similar in many respects to the sexual assault Claimant had endured years earlier. It happened at night and in the dark, the assailant subdued Claimant by dragging her down violently by her hair and it occurred under circumstances in which Claimant felt helpless to defend herself.
I find Dr. Selz’s rationale very persuasive.
28. Dr. Selz admitted at the formal hearing that she was not able to fit Claimant’s symptoms neatly into the diagnostic criteria for either post-traumatic stress disorder (PTSD) or a major depressive disorder. She prefers a more holistic approach to evaluating and treating patients and does not feel rigidly bound by the specific diagnostic criteria described in the most recent edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. In Dr. Selz’ opinion, Claimant clearly suffers from depression and anxiety causally related to the May 2008 work accident, and clearly requires psychological treatment as a result. Whether her condition meets the specific diagnostic requirements for either PTSD or a major depressive disorder does not alter these conclusions in any respect. I find Dr. Selz’ reasoning in this regard persuasive.
2 In addition to reviewing the raw data from her own administration of the MMPI-2 to Claimant, Dr. Selz also reviewed the raw data generated by Defendant’s expert, Dr. Youngjohn.
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(ii) Dr. Youngjohn’s Causation Opinion
29. Defendant’s medical expert, Dr. Youngjohn, disagreed with Dr. Selz’ analysis. Dr. Youngjohn is board certified in clinical psychology and a Fellow of the National Academy of Neuropsychology. His practice focuses on assessment of psychological and neuropsychological issues for other doctors, nurses, attorneys and employers. Most of his current referrals come from the court system, and involve evaluating criminal defendants’ competence to stand trial as well as mitigation of guilt issues.
30. Dr. Youngjohn conducted a day-long neuropsychological evaluation of Claimant in June 2011.3 He also reviewed her medical records.
31. Dr. Youngjohn concluded that Claimant did not suffer any psychological injury as a consequence of her May 2008 work accident. In his estimation, that accident involved a “demented little old lady” who could not have posed a significant physical threat to Claimant. Nor did he perceive that it produced the necessary level of fear, helplessness or horror sufficient to support a diagnosis of PTSD. I find Dr. Youngjohn’s attempt to minimize the physical threat posed by the May 2008 attack unpersuasive, particularly given that it involved force sufficient to cause both a serious cervical injury and a fractured toe.
32. Dr. Youngjohn also rejected the possibility that Claimant suffered from any depressive disorder causally related to the May 2008 patient assault. She consistently had denied experiencing depression, anxiety, substance abuse or suicidal ideation when asked by Drs. Ransom and Arnold on several occasions in 2009 and 2010. In Dr. Youngjohn’s opinion, her failure to report any such symptoms earlier casts substantial doubt on her assertion now, some two years later, that her psychological issues relate back to her work accident.
33. Dr. Youngjohn interpreted the results of Claimant’s MMPI-2 testing4 as indicative of her tendency to over-report and exaggerate her psychological symptoms. In fact, he doubted the veracity of both her complaints and her history. He did not believe that Claimant would have had the wherewithal at age 14 to run away from home, or to hitchhike around the country and attend the Woodstock music festival at age 15. Nor did he believe that her mother would have been able to circumvent “hospital policies” so as to give Claimant’s newborn baby up for adoption without her knowledge. Very simply put, Dr. Youngjohn did not buy Claimant’s story in any respect.
3 A neuropsychological examination differs from a psychological one in that it entails six to eight hours of rigorous testing, the primary purpose of which is to determine if the examinee suffers from cognitive deficits. Dr. Youngjohn acknowledged that neuropsychological testing was not a necessary component of his evaluation in this case, but he performed it anyways because that was what Defendant had requested.
4 As Dr. Selz had, Dr. Youngjohn analyzed the raw data from both his own administration of the MMPI-2 to Claimant and from Dr. Selz’ testing.
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34. Based both on Claimant’s psychological test results and on what Dr. Youngjohn characterized as her lifelong history of maladaptive behavior, he concluded that Claimant suffers from antisocial personality and avoidant personality disorders. He acknowledged the possibility that Claimant had compartmentalized the psychological effects of the sexual assault she suffered when she was 18. He also agreed that Claimant clearly is in psychological distress currently and would benefit from treatment. In Dr. Youngjohn’s opinion, however, Claimant’s psychological issues were neither caused nor triggered in any way by her May 2008 work accident.
35. Having accepted Claimant’s account of the various circumstances underlying her claim as credible, I find Dr. Youngjohn’s testimony to be largely unpersuasive. I do not share his incredulity, for example, at the possibility that Claimant could have made her way to Woodstock at age 15. To the extent that Dr. Youngjohn’s opinion was based on his strongly held belief to the contrary, I find that it is severely compromised.
Claimant’s Employer’s Group Health Insurance Premium Contribution
36. In 2009, the last year that Claimant worked, Claimant’s then employer, Desert Life Rehabilitation and Care Center, contributed $3,120.00 to her annual group health insurance premium. It is unclear from the evidence presented whether these contributions covered the period of time after November 2009 when Claimant became disabled from working on account of her cervical spine injury. As a consequence, it is impossible to determine how her average weekly wage and compensation rate calculation would differ were the contributions to be included.
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).
Compensability of Claimant’s Psychological Injury
2. Claimant alleges that the mechanism of her May 2008 work accident was such that it triggered long-repressed emotions stemming from the sexual assault she endured when she was 18. As a result, she claims, she now suffers from depression and anxiety. Claimant in essence is asserting a “physical-mental” claim, one in which a work-related physical insult causes a psychological injury.
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3. The key component of any workers’ compensation claim is the causal nexus between a work-related accident and a resulting injury. 21 V.S.A. 618. Most compensable claims originate with a physical stimulus, a slip and fall, for example, and result in a physical injury, such as a disc herniation or a ligament tear. The same causal nexus is required in a physical-mental claim, the only difference being that the work-related physical stimulus gives rise to a psychological injury rather than a physical one. See, e.g., Blais v. Church of Christ of Latter Day Saints, Opinion No. 30-99WC (July 30, 1999); see 3 Lex K. Larson, Larson’s Workers’ Compensation §56.03 (Matthew Bender, Rev. Ed.) and cases cited therein.
4. It is true, as Defendant asserts, that many physical-mental claims involve situations where the limitations induced by a specific physical injury cause psychological consequences. A claimant whose disc herniation precludes him from returning to physically strenuous work becomes depressed and anxious at the prospect of becoming unemployable, for example; the necessary treatment required to restore his psychological well-being is clearly compensable. See, e.g., Jackson v. True Temper Corp., 151 Vt. 592 (1989); Larson’s Workers’ Compensation, supra. Even in this fact situation, however, the critical inquiry is not whether the claimed psychological injury derives directly from a work-related physical injury. It is simply whether it derives from a work-related physical stimulus. Merrill v. Town of Ludlow, 147 Vt. 186 (1986).
5. In Merrill, the Vermont Supreme Court considered the viability of just such a “physical-mental” claim. The claimant in that case was involved in a work-related accident when the truck he was driving skidded off the road and overturned. He initially claimed to have suffered a thoracic spine injury. Later, a defense expert hypothesized instead that the accident had unmasked a pre-existing hysterical condition, such that the claimant’s physical symptoms were actually psychological in origin. The court sustained the claimant’s right to recover workers’ compensation benefits under this theory of the case. It thus acknowledged that a physical stimulus (the truck accident) could give rise to a compensable psychological injury. Id.; see also Blais, supra at Conclusion of Law No. 10 (noting evidence that substantiated causal link between claimant’s psychological injury and his work-related fall from a ladder).
6. In accepting the viability of the claimant’s physical-mental claim in Merrill, the Supreme Court also acknowledged the compensability of a claim in which the physical stimulus (there, the truck accident) did not cause a new psychological injury but rather triggered a previously dormant one (hysteria) to become active. In doing so, the court signaled that when a work injury aggravates or exacerbates a pre-existing condition, be it physical or psychological, the result is compensable. Marsigli’s Estate v. Granite City Auto Sales, Inc., 124 Vt. 95 (1964). This is simply an extension of the well-settled rule that an employer takes its employees as it finds them. Brace v. Jeffrey Wallace, DDS, Opinion No. 28-09WC (July 22, 2009); Petit v. North Country High School, Opinion No. 20-98WC (April 28, 1998).
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7. According to Claimant’s expert, Dr. Selz, this is exactly what occurred here. The physical stimulus of the May 2008 assault at work triggered long-repressed emotions from her sexual assault decades earlier, causing the depression and anxiety from which she now suffers. Defendant’s expert, Dr. Youngjohn, sees no such causal connection.
8. Where expert opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
9. Neither of the experts here was a treating provider. Both reviewed the pertinent records and conducted a comprehensive evaluation. Both were well qualified to render an opinion as to the causal relationship, if any, between Claimant’s current psychological distress and the May 2008 work accident. The only factor that differentiates them, therefore, is the third one, that is, the extent to which their respective opinions were clear, thorough and objectively supported.
10. I conclude that Dr. Selz’ opinion is better supported, and therefore more persuasive, than Dr. Youngjohn’s. The starting point for her analysis was uncontroverted evidence establishing that for the many years between Claimant’s sexual assault and her work accident she functioned well and was psychologically stable. Against that backdrop, Dr. Selz considered the many important similarities between the two assaults. With those similarities in mind, she credibly concluded that although the root cause of Claimant’s emotional pain may have extended back to her sexual assault, it was the work accident that triggered the psychological response from which she now suffers.
11. In contrast, Dr. Youngjohn’s opinion was based almost entirely on his determination that Claimant was exaggerating both her prior history and her current symptoms. As I do not accept as credible his analysis, nor can I accept as credible his ultimate conclusion.
12. I conclude that Claimant has sustained her burden of proving that her current psychological condition is causally related to the May 2008 work accident, and is therefore compensable. She therefore is entitled to workers’ compensation coverage for whatever treatment is determined to be reasonable, necessary and causally related to that condition.
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Compensability of Claimant’s Left Ankle and Knee Injuries
13. Claimant contends that she injured both her left ankle and her left knee as a consequence of the May 2008 patient assault. Neither Dr. Ransom nor Dr. Arnold stated an opinion as to the causal relationship, if any, between her ankle and knee complaints and her work injury, however. Absent expert medical evidence, I cannot presume that such a relationship exists. Laird v. State Highway Department, 110 Vt. 195 (1939). This is true even though I have found the reasoning underlying Dr. Eskay-Auerbach’s opinion on this issue to be unpersuasive. Claimant bears the burden of proof, and she has failed to sustain it. Egbert, supra.
14. I conclude that Claimant’s left ankle and knee injuries are not compensable.
Employer-Paid Contributions to Group Health Insurance Premium as Includable in Average Weekly Wage and Compensation Rate Calculation
15. Claimant argues that the value of her employer’s contributions to her group health insurance premium should be included in her average weekly wage and compensation rate calculation. This argument was addressed – and rejected – most recently in Pelissier v. Hannaford Brothers, Opinion No. 26-11WC (September 9, 2011). For exactly the same reasons as enunciated there, I reject the claim here as well.
16. I conclude that Claimant’s average weekly wage and compensation rate should be calculated without including the value of any employer-paid contributions to her group health insurance premium.
Costs and Attorney Fees
17. As Claimant has prevailed on her claim for workers’ compensation benefits causally related to her psychological injury, she is entitled to an award of 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). As for attorney fees, in cases where a claimant has only partially prevailed, the commissioner typically exercises her discretion to award fees commensurate with the extent of the claimant’s success. Subject to these limitations, Claimant shall have 30 days from the date of this opinion to submit evidence of her allowable costs and attorney fees
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Medical benefits covering all reasonable medical services and supplies necessitated by Claimant’s psychological injuries and causally related to her May 20, 2008 work accident, in accordance with 21 V.S.A. §640; and
2. Costs and attorney fees in amounts to be determined, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 8th day of February 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.

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

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

Diana Farnham v. Shaw’s Supermarkets (March 29, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Diana Farnham Opinion No. 11-13WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Shaw’s Supermarkets
For: Anne M. Noonan
Commissioner
State File No. X-61625
OPINION AND ORDER
Hearing held in Montpelier, Vermont on November 16, 2012
Record closed on January 14, 2013
APPEARANCES:
Charles Powell, Esq., for Claimant
Christopher Callahan, Esq., for Defendant
ISSUES PRESENTED:
1. Did Claimant suffer a compensable psychological injury as a result of her May 3, 2006 work-related accident?
2. If yes, is her treatment medically reasonable?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Video of Dr. Rater’s examination
Defendant’s Exhibit A: Curriculum vitae, Dr. Rater
CLAIM:
Medical benefits pursuant to 21 V.S.A. §640
Costs and attorney fees pursuant to 21 V.S.A. §678
2
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file
relating to this claim.
Claimant’s May 2006 Work-Related Accident
3. Claimant began working in the deli department of Defendant’s supermarket. Later she moved to the produce department. Subsequently she was promoted to the front of the store, where she oversaw the cashiers. Her most recent position was that of inventory manager.
4. Claimant’s duties as inventory manager required her to traverse the store with a barcode scanning device, which she used to count the products on the shelves in each aisle. As she did so throughout the day, she regularly encountered and conversed with customers. Claimant credibly described how much she enjoyed interacting with people in this way.
5. On May 3, 2006 Claimant slipped and fell while climbing a set of recently waxed stairs. As she did so, her right hand caught in the railing bracket. She immediately felt pain in her right wrist, thumb and ankle. At her supervisor’s direction, she completed her shift, and then sought treatment at the emergency department. X-rays revealed no fractures. Claimant was diagnosed with right wrist and ankle sprains and fitted with Ace bandages. She was discharged with instructions to follow up with her primary care provider.
6. Claimant attempted to work the following three or four days, but was unable to do so successfully. According to her credible testimony, her supervisor changed her job duties to include lifting heavy items, something her injuries prevented her from doing. Claimant has not returned to work since May 2006.
Claimant’s Post-Injury Medical Treatment
7. One week after her injury, on May 10, 2006 Claimant followed up with her primary care provider, Kim Ladue, a family nurse practitioner. She continued to complain of pain in her right wrist, thumb and ankle. Initially Ms. Ladue prescribed a wrist splint and a walking boot. Claimant showed no improvement over the course of several subsequent office visits, whereupon Ms. Ladue referred her for both a course of physical therapy and an evaluation by a hand specialist.
8. In the years since her injury, Claimant has undergone a variety of treatments to address her persistent wrist, thumb and ankle pain. As Ms. Ladue had suggested, she consulted with a hand therapist at Dartmouth-Hitchcock Medical Center. She underwent courses of physical and occupational therapy, injections, nerve blocks and medications. None of these conservative therapies were successful. Her pain became chronic, and she could not move her thumb at all.
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9. Claimant has undergone two surgeries to address her right ankle symptoms, one in 2007 and the other in 2010. Though not completely resolved, her ankle pain became manageable after the second surgery and remains so today.
10. Unfortunately, the pain in Claimant’s thumb has proven far more difficult to manage. In October 2008 she underwent “trigger release” surgery, which her surgeon deemed successful, but she did not regain full range of motion subsequently and her thumb became increasingly painful. Over time, the focus of Claimant’s pain complaints came to involve primarily her right thumb.
11. Many treatment providers have tried to address Claimant’s chronic thumb pain. She now has been diagnosed with very focal chronic regional pain syndrome in the right thumb. Recently she underwent a successful spinal cord stimulator trial to address her chronic pain. As of the formal hearing, she was awaiting permanent implantation of the device.1
Claimant’s Pre-Injury Psychosocial History
12. Claimant grew up in the Randolph, Vermont area. She endured no physical or emotional abuse. There were no serious conflicts between her and either her parents or her older sister. She graduated high school at an accelerated rate at the age of sixteen.
13. After graduation Claimant married her current husband. Their relationship has been strong and supportive. Prior to her work injury, Claimant enjoyed four-wheeling and spontaneous trips with her husband. She also helped him in his contracting business by cutting the wood for his jobs. Together they have raised three children.
14. Claimant did not enter the work force until her youngest child was eight years old. First she worked for a food service company, then for a retail store and finally for Defendant. Claimant was productive at her previous two employments, but she clearly preferred the more social interactions that her positions with Defendant afforded her.
15. Prior to her work injury, Claimant enjoyed doing yard work and taking walks around the neighborhood. These activities gave her the opportunity to socialize with neighbors and get caught up with what was going on in their lives.
16. Claimant loves animals. Prior to her work injury, three or four times annually she would travel by herself to SeaWorld, to enjoy the dolphins and the manatees there. She became familiar with the animals’ names, as well as those of SeaWorld’s staff. Claimant credibly described these trips as very relaxing and fulfilling. In addition to these trips, during the summers she and her husband would travel by car to Jackson Hole, Wyoming to enjoy the bison, fox and other animals in the canyon. Claimant found these vacations very relaxing as well.
1 With this treatment still pending, as of the date of the formal hearing Defendant stipulated that Claimant had not yet reached an end medical result for her physical injuries.
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17. In general, prior to her work injury Claimant enjoyed good mental health, with stable family relationships, rewarding social interactions and satisfying recreational activities.
Claimant’s Post-Injury Psychiatric Condition and Treatment
18. Claimant has been experiencing chronic pain since her May 2006 injury. Nevertheless, until her first ankle surgery in March 2007 she was able to cope reasonably well with her condition. Her recovery from that surgery was protracted, however. With the pain and restricted movement in her right thumb, she could not ambulate with crutches. As a result, she was both wheelchair- and house-bound for months.
19. During this period, Claimant began feeling depressed and anxious. She had trouble sleeping and experienced recurrent nightmares, in which she saw herself in a casket. She cried frequently, often for no discernable reason. She had difficulty concentrating while reading a newspaper or watching television. She had no energy, felt hopeless and often thought of suicide. As her husband credibly described, when he looked into her eyes it was as if “she [was] not there.”
20. Most notably, Claimant shied away from social interactions, avoided leaving the house and took no joy in what were previously pleasurable pursuits. Once a very independent person, she no longer felt able to take her trips to SeaWorld, nor did she want to. She traveled there on one occasion with her husband, but credibly testified that it was not an enjoyable experience for her. She and her husband also returned one time to Jackson Hole after her injury, but she cried all the way there and described the trip as “miserable.”
21. From March 2007 on, Claimant’s psychological symptoms worsened. Her primary care provider prescribed antidepressants and an anti-anxiety medication, but these were ineffective. Finally, in May 2009 she was referred to Robert Vaillancourt, a licensed psychologist masters. He diagnosed Claimant with major depressive disorder.
22. Claimant has been in treatment with Mr. Vaillancourt continuously every one or two weeks since 2009. She has made some progress, but remains severely disabled by her depression. In April 2012 both Mr. Vaillancourt and her primary care provider referred her to the Treatment Resistive Depression Clinic at Dartmouth-Hitchcock Medical Center for a diagnostic interview. The providers there reaffirmed the diagnosis of major depressive disorder, which they characterized as severe. As treatment, they recommended that her medication regimen be reviewed for possible dosage increases and also that she continue therapy with Mr. Vaillancourt.
23. Since her May 2006 work injury Claimant has gained more than fifty pounds. Her current psychiatric prescriptions include Wellbutrin, Effexor and amitriptyline for depression, Klonopin for anxiety and Prazosin for persistent nightmares. Claimant credibly testified that she still struggles with thoughts of suicide.
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Expert Psychiatric Opinions
(a) Dr. Drukteinis
24. Dr. Drukteinis is a board certified psychiatrist and Diplomate in the American Academy of Pain Management. At her attorney’s request, he reviewed Claimant’s pertinent medical records in December 2011, and then conducted an in-person evaluation in January 2012.
25. Dr. Drukteinis diagnosed Claimant with (a) a pain disorder associated with both psychological factors and a general medical condition; and (b) major depressive disorder with features of agoraphobia. In his opinion, the latter condition is causally related to Claimant’s May 2006 work injury.2
26. According to the Diagnostic and Statistical Manual of Mental Disorders (4th ed., text rev., 2000), to establish a diagnosis of major depressive disorder a patient must be found to have a depressed mood or loss of interest or pleasure for more than a two-week period, plus five out of the following nine additional symptoms:
• Depressed mood for most of the day;
• Diminished interest or pleasure in all or most activities;
• Significant weight loss when not dieting, or weight gain;
• Insomnia;
• Psychomotor agitation or retardation;
• Fatigue or loss of energy;
• Feelings of worthlessness or excessive guilt;
• Inability to think or concentrate; and
• Recurrent thoughts of death or suicidal ideation.
2 Dr. Drukteinis did not state a specific opinion as to whether Claimant’s pain disorder was causally related to her work injury, though this seems self-evident.
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27. In Dr. Drukteinis’ opinion, over the course of the three years preceding his evaluation Claimant has exhibited all of these symptoms in varying degrees of intensity. For example:
• She has lost interest in pleasurable things, such as conversing with neighbors and customers at the supermarket or taking trips to SeaWorld;
• She has difficulty sleeping, and experiences recurrent nightmares;
• She has gained a significant amount of weight, lacks energy and cannot concentrate while reading a newspaper; and
• She expresses feelings of worthlessness and frequently has suicidal thoughts.
28. Dr. Drukteinis’ diagnosis comports with the diagnostic criteria for major depressive disorder, and is consistent with the diagnostic conclusions that both Mr. Vaillancourt and the Dartmouth-Hitchcock evaluators reached. For these reasons, I find his analysis very persuasive.
29. In Dr. Drukteinis’ opinion, though precipitated by her physical injury and chronic pain, Claimant’s major depressive disorder has now taken its own course. According to his analysis, Claimant spiraled down into her current depressive state over the course of several years. At this point, even if her chronic pain abates, and/or if she makes further psychological progress through counseling and medication, the diagnosis of major depressive disorder will remain. I find this analysis credible.
30. Dr. Drukteinis believes that the psychological treatment Claimant has been receiving is reasonable and appropriate. Claimant is severely depressed with passive suicide ideation at times. Ongoing psychological and psychiatric support is necessary for her support and maintenance. The medications she has been prescribed have been at least somewhat helpful in relieving her symptoms. A clinical psychiatric consultation might assist in determining whether a more aggressive medication program might be even more beneficial. I find this reasoning persuasive.
(b) Dr. Rater
31. Dr. Rater is a board certified psychiatrist. At Defendant’s request, he performed an independent medical examination of Claimant in September 2011. Dr. Rater reviewed the pertinent records at the time, as well as Dr. Drukteinis’ reports when they became available.
32. Dr. Rater concluded that Claimant does not suffer from a psychiatrically diagnosed condition causally related to her May 2006 work injury. Rather, in his opinion, her primary concern is one of chronic pain. According to his analysis, any lack of physical activity, insomnia, weight gain or inability to think or concentrate is attributable solely to the pain caused by her physical injuries. If the pain were to resolve, she would not be depressed.
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33. In support of his opinion, Dr. Rater pointed to various occasions described in Mr. Vaillancourt’s progress notes in which Claimant was reported to enjoy country music and exercise, that she had taken up crocheting and that she had traveled to both SeaWorld and Wyoming after her work injury. From these reports, Dr. Rater determined that Claimant was able to leave her home, interact socially with others and cope with stress. With that in mind, he concluded that Claimant was not suffering from major depressive disorder. I do not find this analysis convincing.
34. Regarding the reasonableness of Claimant’s treatment, in Dr. Rater’s opinion Claimant needs at most sixteen therapy sessions to learn how to manage chronic pain. Thus, her ongoing counseling sessions with Mr. Vailliancourt are not necessary. Additionally, because her psychiatric medications might cross-react with her pain medications, these are not appropriate either. I do not find Dr. Rater’s reasoning on this issue persuasive.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Claimant here presents a “physical-mental” claim – one in which a compensable physical injury provokes a psychological injury as well. If there is sufficient medical evidence to establish a causal connection between the former and the latter, then the psychological injury is deemed to have arisen out of the physical injury and therefore becomes compensable. Vach v. Twin City Subaru, Opinion No. 02-00WC (March 24, 2000); Blais v. Church of Jesus Christ of Latter Day Saints, Opinion No. 30-99WC (July 30, 1999); see generally, 3 Lex K. Larson, Larson’s Workers’ Compensation §56.03[3] (Matthew Bender, Rev. Ed.), and cases cited therein.
3. To establish the required connection, Claimant presented testimony from Dr. Drukteinis. Claimant alleges that as a result of her May 2006 work injury, and specifically following her March 2007 ankle surgery, her chronic pain became unmanageable. The combination of intractable pain and physical limitations caused her to develop the major depressive disorder from which she now suffers.
4. Defendant counters this argument through the testimony of its expert, Dr. Rater. It asserts that Claimant’s depression is not a separate diagnosis, but rather is merely secondary to her chronic pain. If her pain were to resolve, her depression would resolve as well.
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5. The key component of any workers’ compensation claim is the causal nexus between a work-related accident and a resulting injury. 21 V.S.A. §618. Most compensable claims originate with a physical stimulus, a slip and fall, for example, and result in a physical injury, such as a disc herniation or a ligament tear. The same causal nexus is required in a physical-mental claim. The only difference is that the work-related physical stimulus gives rise to a psychological injury rather than a physical one. See, e.g., Blais v. Church of Christ of Latter Day Saints, Opinion No. 30-99WC (July 30, 1999); see 3 Lex K. Larson, Larson’s Workers’ Compensation §56.03 (Matthew Bender, Rev. Ed.) and cases cited therein.
6. Where expert opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
7. I conclude that Dr. Drukteinis’ opinion is better supported, and therefore more persuasive, than Dr. Rater’s. Dr. Drukteinis’ analysis took into account the way in which Claimant’s psychological symptoms have evolved over time. According to both Claimant’s own credible testimony and that of her treatment providers, they now encompass every one of the elements necessary to support a diagnosis of major depressive disorder. They signify far more than simply a reaction to chronic physical pain, and even if that pain resolves, they are unlikely to disappear without focused, ongoing psychological treatment.
8. In contrast, Dr. Rater’s analysis relied primarily on snippets of information gleaned from Mr. Vaillancourt’s notes, not the broader picture that Claimant herself credibly described. As I do not accept as credible his analysis, nor can I accept as credible his ultimate conclusion.
9. As to the reasonableness of Claimant’s ongoing psychological treatment, including both continued counseling and medications, I conclude that Dr. Drukteinis’ opinion is more persuasive. Given the period of time during which her psychological symptoms have persisted, I concur that further treatment is necessary to support her emotionally.
10. I conclude that Claimant has sustained her burden of proving that her current psychological condition, specifically major depressive disorder, is causally related to her May 2006 work injury, and is therefore compensable. I further conclude that the treatment she is receiving is reasonable. She therefore is entitled to workers’ compensation coverage for whatever further treatment is determined to be reasonable, necessary and causally related to that condition.
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Costs and Attorney Fees
11. As Claimant has prevailed on her claim for benefits, she is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit her itemized claim.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Medical benefits covering all reasonable medical services and supplies necessitated by Claimant’s compensable major depressive disorder, in accordance with 21 V.S.A. §640; and
2. Costs and attorney fees in amounts to be determined, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 29th day of March 2013.
___________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

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

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

Diana Farnham v. Shaw’s Supermarkets (March 29, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Diana Farnham Opinion No. 11-13WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Shaw’s Supermarkets
For: Anne M. Noonan
Commissioner
State File No. X-61625
OPINION AND ORDER
Hearing held in Montpelier, Vermont on November 16, 2012
Record closed on January 14, 2013
APPEARANCES:
Charles Powell, Esq., for Claimant
Christopher Callahan, Esq., for Defendant
ISSUES PRESENTED:
1. Did Claimant suffer a compensable psychological injury as a result of her May 3, 2006 work-related accident?
2. If yes, is her treatment medically reasonable?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Video of Dr. Rater’s examination
Defendant’s Exhibit A: Curriculum vitae, Dr. Rater
CLAIM:
Medical benefits pursuant to 21 V.S.A. §640
Costs and attorney fees pursuant to 21 V.S.A. §678
2
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file
relating to this claim.
Claimant’s May 2006 Work-Related Accident
3. Claimant began working in the deli department of Defendant’s supermarket. Later she moved to the produce department. Subsequently she was promoted to the front of the store, where she oversaw the cashiers. Her most recent position was that of inventory manager.
4. Claimant’s duties as inventory manager required her to traverse the store with a barcode scanning device, which she used to count the products on the shelves in each aisle. As she did so throughout the day, she regularly encountered and conversed with customers. Claimant credibly described how much she enjoyed interacting with people in this way.
5. On May 3, 2006 Claimant slipped and fell while climbing a set of recently waxed stairs. As she did so, her right hand caught in the railing bracket. She immediately felt pain in her right wrist, thumb and ankle. At her supervisor’s direction, she completed her shift, and then sought treatment at the emergency department. X-rays revealed no fractures. Claimant was diagnosed with right wrist and ankle sprains and fitted with Ace bandages. She was discharged with instructions to follow up with her primary care provider.
6. Claimant attempted to work the following three or four days, but was unable to do so successfully. According to her credible testimony, her supervisor changed her job duties to include lifting heavy items, something her injuries prevented her from doing. Claimant has not returned to work since May 2006.
Claimant’s Post-Injury Medical Treatment
7. One week after her injury, on May 10, 2006 Claimant followed up with her primary care provider, Kim Ladue, a family nurse practitioner. She continued to complain of pain in her right wrist, thumb and ankle. Initially Ms. Ladue prescribed a wrist splint and a walking boot. Claimant showed no improvement over the course of several subsequent office visits, whereupon Ms. Ladue referred her for both a course of physical therapy and an evaluation by a hand specialist.
8. In the years since her injury, Claimant has undergone a variety of treatments to address her persistent wrist, thumb and ankle pain. As Ms. Ladue had suggested, she consulted with a hand therapist at Dartmouth-Hitchcock Medical Center. She underwent courses of physical and occupational therapy, injections, nerve blocks and medications. None of these conservative therapies were successful. Her pain became chronic, and she could not move her thumb at all.
3
9. Claimant has undergone two surgeries to address her right ankle symptoms, one in 2007 and the other in 2010. Though not completely resolved, her ankle pain became manageable after the second surgery and remains so today.
10. Unfortunately, the pain in Claimant’s thumb has proven far more difficult to manage. In October 2008 she underwent “trigger release” surgery, which her surgeon deemed successful, but she did not regain full range of motion subsequently and her thumb became increasingly painful. Over time, the focus of Claimant’s pain complaints came to involve primarily her right thumb.
11. Many treatment providers have tried to address Claimant’s chronic thumb pain. She now has been diagnosed with very focal chronic regional pain syndrome in the right thumb. Recently she underwent a successful spinal cord stimulator trial to address her chronic pain. As of the formal hearing, she was awaiting permanent implantation of the device.1
Claimant’s Pre-Injury Psychosocial History
12. Claimant grew up in the Randolph, Vermont area. She endured no physical or emotional abuse. There were no serious conflicts between her and either her parents or her older sister. She graduated high school at an accelerated rate at the age of sixteen.
13. After graduation Claimant married her current husband. Their relationship has been strong and supportive. Prior to her work injury, Claimant enjoyed four-wheeling and spontaneous trips with her husband. She also helped him in his contracting business by cutting the wood for his jobs. Together they have raised three children.
14. Claimant did not enter the work force until her youngest child was eight years old. First she worked for a food service company, then for a retail store and finally for Defendant. Claimant was productive at her previous two employments, but she clearly preferred the more social interactions that her positions with Defendant afforded her.
15. Prior to her work injury, Claimant enjoyed doing yard work and taking walks around the neighborhood. These activities gave her the opportunity to socialize with neighbors and get caught up with what was going on in their lives.
16. Claimant loves animals. Prior to her work injury, three or four times annually she would travel by herself to SeaWorld, to enjoy the dolphins and the manatees there. She became familiar with the animals’ names, as well as those of SeaWorld’s staff. Claimant credibly described these trips as very relaxing and fulfilling. In addition to these trips, during the summers she and her husband would travel by car to Jackson Hole, Wyoming to enjoy the bison, fox and other animals in the canyon. Claimant found these vacations very relaxing as well.
1 With this treatment still pending, as of the date of the formal hearing Defendant stipulated that Claimant had not yet reached an end medical result for her physical injuries.
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17. In general, prior to her work injury Claimant enjoyed good mental health, with stable family relationships, rewarding social interactions and satisfying recreational activities.
Claimant’s Post-Injury Psychiatric Condition and Treatment
18. Claimant has been experiencing chronic pain since her May 2006 injury. Nevertheless, until her first ankle surgery in March 2007 she was able to cope reasonably well with her condition. Her recovery from that surgery was protracted, however. With the pain and restricted movement in her right thumb, she could not ambulate with crutches. As a result, she was both wheelchair- and house-bound for months.
19. During this period, Claimant began feeling depressed and anxious. She had trouble sleeping and experienced recurrent nightmares, in which she saw herself in a casket. She cried frequently, often for no discernable reason. She had difficulty concentrating while reading a newspaper or watching television. She had no energy, felt hopeless and often thought of suicide. As her husband credibly described, when he looked into her eyes it was as if “she [was] not there.”
20. Most notably, Claimant shied away from social interactions, avoided leaving the house and took no joy in what were previously pleasurable pursuits. Once a very independent person, she no longer felt able to take her trips to SeaWorld, nor did she want to. She traveled there on one occasion with her husband, but credibly testified that it was not an enjoyable experience for her. She and her husband also returned one time to Jackson Hole after her injury, but she cried all the way there and described the trip as “miserable.”
21. From March 2007 on, Claimant’s psychological symptoms worsened. Her primary care provider prescribed antidepressants and an anti-anxiety medication, but these were ineffective. Finally, in May 2009 she was referred to Robert Vaillancourt, a licensed psychologist masters. He diagnosed Claimant with major depressive disorder.
22. Claimant has been in treatment with Mr. Vaillancourt continuously every one or two weeks since 2009. She has made some progress, but remains severely disabled by her depression. In April 2012 both Mr. Vaillancourt and her primary care provider referred her to the Treatment Resistive Depression Clinic at Dartmouth-Hitchcock Medical Center for a diagnostic interview. The providers there reaffirmed the diagnosis of major depressive disorder, which they characterized as severe. As treatment, they recommended that her medication regimen be reviewed for possible dosage increases and also that she continue therapy with Mr. Vaillancourt.
23. Since her May 2006 work injury Claimant has gained more than fifty pounds. Her current psychiatric prescriptions include Wellbutrin, Effexor and amitriptyline for depression, Klonopin for anxiety and Prazosin for persistent nightmares. Claimant credibly testified that she still struggles with thoughts of suicide.
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Expert Psychiatric Opinions
(a) Dr. Drukteinis
24. Dr. Drukteinis is a board certified psychiatrist and Diplomate in the American Academy of Pain Management. At her attorney’s request, he reviewed Claimant’s pertinent medical records in December 2011, and then conducted an in-person evaluation in January 2012.
25. Dr. Drukteinis diagnosed Claimant with (a) a pain disorder associated with both psychological factors and a general medical condition; and (b) major depressive disorder with features of agoraphobia. In his opinion, the latter condition is causally related to Claimant’s May 2006 work injury.2
26. According to the Diagnostic and Statistical Manual of Mental Disorders (4th ed., text rev., 2000), to establish a diagnosis of major depressive disorder a patient must be found to have a depressed mood or loss of interest or pleasure for more than a two-week period, plus five out of the following nine additional symptoms:
• Depressed mood for most of the day;
• Diminished interest or pleasure in all or most activities;
• Significant weight loss when not dieting, or weight gain;
• Insomnia;
• Psychomotor agitation or retardation;
• Fatigue or loss of energy;
• Feelings of worthlessness or excessive guilt;
• Inability to think or concentrate; and
• Recurrent thoughts of death or suicidal ideation.
2 Dr. Drukteinis did not state a specific opinion as to whether Claimant’s pain disorder was causally related to her work injury, though this seems self-evident.
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27. In Dr. Drukteinis’ opinion, over the course of the three years preceding his evaluation Claimant has exhibited all of these symptoms in varying degrees of intensity. For example:
• She has lost interest in pleasurable things, such as conversing with neighbors and customers at the supermarket or taking trips to SeaWorld;
• She has difficulty sleeping, and experiences recurrent nightmares;
• She has gained a significant amount of weight, lacks energy and cannot concentrate while reading a newspaper; and
• She expresses feelings of worthlessness and frequently has suicidal thoughts.
28. Dr. Drukteinis’ diagnosis comports with the diagnostic criteria for major depressive disorder, and is consistent with the diagnostic conclusions that both Mr. Vaillancourt and the Dartmouth-Hitchcock evaluators reached. For these reasons, I find his analysis very persuasive.
29. In Dr. Drukteinis’ opinion, though precipitated by her physical injury and chronic pain, Claimant’s major depressive disorder has now taken its own course. According to his analysis, Claimant spiraled down into her current depressive state over the course of several years. At this point, even if her chronic pain abates, and/or if she makes further psychological progress through counseling and medication, the diagnosis of major depressive disorder will remain. I find this analysis credible.
30. Dr. Drukteinis believes that the psychological treatment Claimant has been receiving is reasonable and appropriate. Claimant is severely depressed with passive suicide ideation at times. Ongoing psychological and psychiatric support is necessary for her support and maintenance. The medications she has been prescribed have been at least somewhat helpful in relieving her symptoms. A clinical psychiatric consultation might assist in determining whether a more aggressive medication program might be even more beneficial. I find this reasoning persuasive.
(b) Dr. Rater
31. Dr. Rater is a board certified psychiatrist. At Defendant’s request, he performed an independent medical examination of Claimant in September 2011. Dr. Rater reviewed the pertinent records at the time, as well as Dr. Drukteinis’ reports when they became available.
32. Dr. Rater concluded that Claimant does not suffer from a psychiatrically diagnosed condition causally related to her May 2006 work injury. Rather, in his opinion, her primary concern is one of chronic pain. According to his analysis, any lack of physical activity, insomnia, weight gain or inability to think or concentrate is attributable solely to the pain caused by her physical injuries. If the pain were to resolve, she would not be depressed.
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33. In support of his opinion, Dr. Rater pointed to various occasions described in Mr. Vaillancourt’s progress notes in which Claimant was reported to enjoy country music and exercise, that she had taken up crocheting and that she had traveled to both SeaWorld and Wyoming after her work injury. From these reports, Dr. Rater determined that Claimant was able to leave her home, interact socially with others and cope with stress. With that in mind, he concluded that Claimant was not suffering from major depressive disorder. I do not find this analysis convincing.
34. Regarding the reasonableness of Claimant’s treatment, in Dr. Rater’s opinion Claimant needs at most sixteen therapy sessions to learn how to manage chronic pain. Thus, her ongoing counseling sessions with Mr. Vailliancourt are not necessary. Additionally, because her psychiatric medications might cross-react with her pain medications, these are not appropriate either. I do not find Dr. Rater’s reasoning on this issue persuasive.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Claimant here presents a “physical-mental” claim – one in which a compensable physical injury provokes a psychological injury as well. If there is sufficient medical evidence to establish a causal connection between the former and the latter, then the psychological injury is deemed to have arisen out of the physical injury and therefore becomes compensable. Vach v. Twin City Subaru, Opinion No. 02-00WC (March 24, 2000); Blais v. Church of Jesus Christ of Latter Day Saints, Opinion No. 30-99WC (July 30, 1999); see generally, 3 Lex K. Larson, Larson’s Workers’ Compensation §56.03[3] (Matthew Bender, Rev. Ed.), and cases cited therein.
3. To establish the required connection, Claimant presented testimony from Dr. Drukteinis. Claimant alleges that as a result of her May 2006 work injury, and specifically following her March 2007 ankle surgery, her chronic pain became unmanageable. The combination of intractable pain and physical limitations caused her to develop the major depressive disorder from which she now suffers.
4. Defendant counters this argument through the testimony of its expert, Dr. Rater. It asserts that Claimant’s depression is not a separate diagnosis, but rather is merely secondary to her chronic pain. If her pain were to resolve, her depression would resolve as well.
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5. The key component of any workers’ compensation claim is the causal nexus between a work-related accident and a resulting injury. 21 V.S.A. §618. Most compensable claims originate with a physical stimulus, a slip and fall, for example, and result in a physical injury, such as a disc herniation or a ligament tear. The same causal nexus is required in a physical-mental claim. The only difference is that the work-related physical stimulus gives rise to a psychological injury rather than a physical one. See, e.g., Blais v. Church of Christ of Latter Day Saints, Opinion No. 30-99WC (July 30, 1999); see 3 Lex K. Larson, Larson’s Workers’ Compensation §56.03 (Matthew Bender, Rev. Ed.) and cases cited therein.
6. Where expert opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
7. I conclude that Dr. Drukteinis’ opinion is better supported, and therefore more persuasive, than Dr. Rater’s. Dr. Drukteinis’ analysis took into account the way in which Claimant’s psychological symptoms have evolved over time. According to both Claimant’s own credible testimony and that of her treatment providers, they now encompass every one of the elements necessary to support a diagnosis of major depressive disorder. They signify far more than simply a reaction to chronic physical pain, and even if that pain resolves, they are unlikely to disappear without focused, ongoing psychological treatment.
8. In contrast, Dr. Rater’s analysis relied primarily on snippets of information gleaned from Mr. Vaillancourt’s notes, not the broader picture that Claimant herself credibly described. As I do not accept as credible his analysis, nor can I accept as credible his ultimate conclusion.
9. As to the reasonableness of Claimant’s ongoing psychological treatment, including both continued counseling and medications, I conclude that Dr. Drukteinis’ opinion is more persuasive. Given the period of time during which her psychological symptoms have persisted, I concur that further treatment is necessary to support her emotionally.
10. I conclude that Claimant has sustained her burden of proving that her current psychological condition, specifically major depressive disorder, is causally related to her May 2006 work injury, and is therefore compensable. I further conclude that the treatment she is receiving is reasonable. She therefore is entitled to workers’ compensation coverage for whatever further treatment is determined to be reasonable, necessary and causally related to that condition.
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Costs and Attorney Fees
11. As Claimant has prevailed on her claim for benefits, she is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit her itemized claim.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Medical benefits covering all reasonable medical services and supplies necessitated by Claimant’s compensable major depressive disorder, in accordance with 21 V.S.A. §640; and
2. Costs and attorney fees in amounts to be determined, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 29th day of March 2013.
___________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

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

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

E. H. v. Mack Molding Company (May 13, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
E. H. Opinion No. 14-09WC
v. By: Jane Gomez-Dimotsis
Hearing Officer
Mack Molding Company For: Patricia Moulton Powden
Commissioner
State File No. Y-52409
OPINION AND ORDER
Hearing held in Montpelier on October 23, 2008.
Record closed on November 25, 2008.
APPEARANCES:
Richard Bowen, Esq. for Claimant
Keith Kasper, Esq. for Defendant
ISSUE:
Is Claimant’s mental health condition causally related to the compensable injured he suffered to his thumb on August 31, 2006?
EXHIBITS:
Joint Medical Exhibit with supplemental file from Valley Regional Hospital
Claimant’s Exhibit 1: Dr. Halikias’ Curriculum Vitae
Claimant’s Exhibit 2: Nurse Case Manager notes
Claimant’s Exhibit 3: DSM-IV-TR attached to Dr. Batt’s deposition
Defendant’s Exhibit A: Dr. Mann’s Curriculum Vitae
Defendant’s Exhibit B: MMPI-2 Testing Manual
CLAIM:
Medical benefits, including hospitalization, pursuant to 21 V.S.A. §640
Temporary total disability benefits pursuant to 21 V.S.A. §642
Attorney’s fees and costs pursuant to 21 V.S.A. §678
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FINDINGS OF FACT:
Stipulated Facts
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was an employer as those terms are defined in the Vermont Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s files relating to this claim.
3. Claimant suffered a personal injury to his thumb arising out of and in the course of his employment with Defendant. Claimant tried to commit suicide approximately one year later.
4. Claimant’s average weekly wage on the date of injury, August 31, 2006, was $703.12. Claimant has no dependents.
5. On August 5, 2007 Claimant began receiving treatment for depression and Post Traumatic Stress Disorder (PTSD) as a result of an alleged suicide attempt.
6. Defendant has denied the compensability of all psychiatric-related bills and conditions associated with the alleged suicide treatment and all medical expenses directly associated therewith. Defendant has continued to pay all medical benefits otherwise associated with Claimant’s compensable thumb injury and also has continued payment of Claimant’s temporary total disability benefits after August 5, 2007.
Claimant’s Background and Brief History
7. Claimant, now 75 years old, was born June 1, 1934 in Lebanon, New Hampshire and has lived in Windsor County, Vermont for most of his life. He was forced to quit school in the eighth grade when his father died. He did various jobs and worked for a paper company for twenty-four years until the company closed. After other employment, Claimant worked for Defendant for approximately twelve years until his accident.
8. Claimant has been married three times and has adult children. He was divorced from his first and second wives after many years of marriage. He separated from his third wife after less than three years of marriage and was living alone at the time of the accident. There is evidence from a Massachusetts General Hospital social worker that Claimant informed her he had experienced feelings of depression for about a year prior to his work accident due to his separation and expected divorce from his last wife.
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The Accident
9. Claimant began work on August 31, 2006 at 11:00 p.m. as a machine operator at Defendant’s company. When he began his shift, the machines were leaking oil onto the floor. However, the presses do not shut down during shift changes. After working for a short while, Claimant lost his footing due to the oil on the floor. When he put his hand out to break his fall he caught his thumb in the press.
10. With his thumb caught and almost severed from his hand, Claimant could not reach the buttons that would turn off the press. He began screaming for help, but because the machinery noise on the plant floor was so loud, no one heard him. Claimant remained caught in the machine for almost five minutes. Finally, a co-worker came to his aid, shut down the machine and released Claimant’s thumb. Claimant was driven to Springfield Hospital, and then, because his injury was so serious, transported by ambulance to Massachusetts General Hospital. He did not receive treatment until 7:33 a.m. on September 1st, seven or eight hours after the accident had occurred.
Post- Accident Treatment
11. Claimant was diagnosed with a fracture of the proximal phalanx in his thumb. He had open reduction surgery to repair his digital artery and thumb.
12. After his hospitalization, on September 3, 2006 Claimant returned home with his thumb in a splint. Thereafter, he followed up with his doctors at Massachusetts General Hospital on a weekly basis. He was re-hospitalized after he developed a serious infection in his thumb that necessitated both intravenous and oral antibiotic treatment.
13. After some months, Claimant’s treating physician at Massachusetts General Hospital, Dr. Obeng, became concerned both about Claimant’s mental state and about the possibility that he might be developing reflex sympathetic dystrophy. Dr. Obeng referred Claimant to Dr. Fanciullo, a pain management specialist at Dartmouth Hitchcock Medical Center.
14. Dr. Fanciullo first evaluated Claimant on April 10, 2007 and diagnosed him with PTSD. Dr. Fanciullo did not enunciate the specific criteria he used to make this diagnosis, but did note that Claimant reported having nightmares of his thumb crush injury. Dr. Fanciullo treated Claimant until approximately September 2007. He prescribed Cymbalta to treat Claimant’s depression and pain medications for his physical symptoms. Unfortunately, these proved not to be particularly helpful. In May 2007 Dr. Fanciullo noted that Claimant was not really any better. He continued to treat Claimant until approximately September 2007, at which point he reported that if Claimant chose not to pursue psychiatric treatment options he might soon be at end medical result.
15. Claimant next was referred to Dr. Rosen at Dartmouth Hitchcock Medical Center to help increase the function in his thumb and to reduce his pain. There was a question at this time as to whether Claimant’s thumb should be amputated.
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16. During the summer of 2007 Claimant became increasingly despondent over the pain and functional limitations caused by his thumb injury. He lived alone, and because the injury was to his dominant thumb, daily chores and simple activities that most of us take for granted – buttoning his shirts, for example – were problematic. Claimant also was unable to play the guitar, a pastime he had always enjoyed.
Suicide Attempt, Hospitalization and Treatment
17. On August 2, 2007 Claimant was reported missing to the Vermont State Police. He last had been seen in Bellows Falls, near the Connecticut River. Four days later, he was found near the river in Charleston, New Hampshire. Claimant was transported to the hospital emergency room and admitted to the intensive care unit. At that time, he was suffering from dehydration, chest pain, a possible pulmonary embolism and neck pain. In addition, he exhibited a high level of confusion and expressed feelings of uselessness and depression. Claimant admitted that he had attempted to commit suicide by drowning but was unsuccessful and had been wandering for days without food or water.
18. While hospitalized, Claimant treated with Dr. Burns, who reported symptoms of PTSD on his notes. Subsequently, he was referred to Dr. Mazur at the hospital’s Valley Regional Behavioral Unit. Dr. Mazur diagnosed Claimant with a major depressive disorder. At their first interview, Claimant told Dr. Mazur he was depressed due to the separation from his third wife. Claimant expressed feelings of anger, uselessness due to his loss of employment and depression. However, there was no mention at all in Dr. Mazur’s initial report of Claimant’s 2006 thumb injury.
19. Dr. Mazur concluded that several stressors had built up to lead Claimant to want to kill himself. Among these were the thumb accident, the partial loss of its use and the pain related to it, his separation from his third wife and his inability to work. Dr. Mazur noted that Claimant had planned on continuing to work until he died.
Additional Psychiatric Treatment and Experts’ Conclusions
20. At Dr. Mazur’s referral, Claimant began treating with Dr. Batt in August 2007. Dr. Batt is a board certified forensic psychiatrist who has been in private practice for more than sixteen years. He frequently has treated patients suffering from PTSD, particularly military veterans.
21. Using the criteria adopted by the American Psychiatric Association in the DSM-IV-TR, Dr. Batt diagnosed Claimant with severe PTSD. The DSM-IV requires that six criteria, labeled A through F, be met in order for a PTSD diagnosis to be made. In Claimant’s case Dr. Batt found that eleven criteria had been met.
22. The first diagnostic criterion is that the person must have been exposed to a traumatic event involving threatened death or serious injury, as a result of which he or she experienced intense fear, helplessness or horror. Dr. Batt concluded that the injury Claimant suffered at work, in which his thumb was caught for many minutes before anyone appeared to help him, qualified as such an event.
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23. Criterion B requires that the person experience intrusive recollections of the traumatic event, such as distressing dreams, flashbacks or intense psychological distress when exposed to cues that resemble it in some way. In Claimant’s case, Dr. Batt noted that he had recurrent distressing dreams about the way his thumb injury had occurred and reported intense psychological distress when he returned to his former work site. Dr. Batt found these symptoms sufficient to satisfy Criterion B.
24. Criterion C encompasses avoidant and/or numbing behaviors. Under this criterion, Dr. Batt noted that Claimant avoided activities, places or people that would arouse recollection of his trauma. He did not like to talk about the event, and avoided thoughts, feelings or conversations about it. He felt detached from others. He was unable to recall certain aspects of the event. He had a sense of a foreshortened future or career, because he had worked all his life and couldn’t imagine life without work. Dr. Batt found these behaviors sufficient to satisfy Criterion C.
25. Criterion D requires evidence of hyper-arousal, for example, difficulty falling or staying asleep, difficulty concentrating, hyper-vigilance or an exaggerated startle response. Dr. Batt found sufficient evidence of these behaviors to meet this criterion as well.
26. Criterion E requires that the behaviors noted in B, C and D have lasted for more than one month, and Criterion F requires that they have caused significant distress or impairment in social, occupational or other important areas of functioning. Dr. Batt found both of these criteria to have been met in Claimant’s case.
27. Dr. Batt acknowledged that Claimant was depressed about the dissolution of his third marriage, but in his opinion this was not the cause of his PTSD. Dr. Batt noted that Claimant had been separated from his wife for almost a year prior to his injury, but was able to work full-time.
28. Dr. Batt believed that Claimant had tried to commit suicide on the anniversary of his thumb accident. In fact, Claimant’s suicide attempt occurred several weeks earlier than the actual anniversary date.
29. Dr. Batt was concerned that Claimant would attempt suicide again. In his opinion Claimant needed a complete treatment evaluation, including an evaluation with a neuropsychologist experienced with brain imagery. Dr. Batt believed that Claimant needed ongoing therapy, but that he did not understand either the seriousness of his condition or the value of psychotherapy. In Dr. Batt’s opinion, it could take Claimant up to five years to reach end medical result. In the meantime, he did not think Claimant should try yet to return to work.
30. Dr. Batt began treating Claimant in August 2007. Claimant discontinued treatment in August 2008 after Defendant ceased paying for it. In Dr. Batt’s opinion, Claimant’s prognosis was guardedly optimistic only if he continued psychiatric treatment and medication management. Even with that, Dr. Batt felt that Claimant likely had suffered permanent and severe psychological trauma.
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31. At the suggestion of Claimant’s counsel, Claimant also saw Dr. Halikias for a mental health evaluation in December 2007. Dr. Halikias has a doctorate in forensic clinical psychology. He has practiced for many years. He is board certified in assessment psychology and is a member of the American Psychology Association. He now specializes in court evaluations, teaching doctoral students, consultations and assessments. Dr. Halikias teaches doctoral candidates in psychology how to administer MMPI assessments.
32. Dr. Halikias administered a battery of tests to Claimant. He found clear, robust symptoms of PTSD with all diagnostic criteria met. He also found Claimant was not a malingerer but had a strong work ethic. He did not find Claimant exaggerated his pain or depression.
33. Claimant told Dr. Halikias that it would be too frightening for him to return to work for Defendant. He reported that it was stressful for him to be in small places like elevators since his injury. He also expressed problems with daily living activities and intrusive imagery of the workplace accident. He expressed feelings of worthlessness at having become unemployed for the first time in his life since 8th grade.
34. Claimant also informed Dr. Halikias of his vague recollection of his suicide attempt approximately a year after his thumb injury.
35. There is conflicting evidence as to what help Dr. Halikias gave Claimant during the course of his psychological test battery. At Claimant’s request, when Dr. Halikias administered certain tests, such as the MMPI-2, he read some of the questions to him aloud. This was to account for Claimant’s age and low level of formal education. In addition, because Claimant was experiencing pain in his hand, Dr. Halikias also may have assisted him by filling in the answers to certain questions, all at Claimant’s direction. Dr. Halikias did not believe that the assistance he provided skewed Claimant’s test results in any way.
36. In testimony, Dr. Halikias pointed out that the MMPI-2 does not have an index for PTSD. Although he administered the MMPI, he relied on the Trauma Symptom Inventory for part of his diagnosis.
37. As Dr. Batt had done, Dr. Halikias used the DSM-IV-TR for his diagnosis and concluded that Claimant presented a clear, convincing and robust portrait of a person suffering from PTSD. Unlike Dr. Batt, however, Dr. Halikias felt that vocational rehabilitation would be helpful to Claimant and that he should return to work when he could. Dr. Halikias recommended that Claimant continue with antidepressant medications and weekly mental health services.
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38. At Defendant’s request, Claimant underwent an independent psychological evaluation with Dr. Mann, a psychologist, in December 2007 and February 2008. Dr. Mann administered a battery of tests, including the MMPI-2, the BHI-2 and the VIP tests. Dr. Mann acknowledged that when taking the MMPI-2 test, Claimant expressed significant difficulties due to his limited formal education. Claimant needed additional time to complete the testing procedure, and for part of the testing Dr. Mann utilized an audiotape of the questions so that Claimant would not have to read them himself.
39. Based on his evaluation, Dr. Mann believes that Claimant is at least partially malingering, as reflected by evidence that he is “grossly exaggerating physical and psychological symptoms” for external incentives.
40. Dr. Mann believes that at one time Claimant may have met the diagnosis of PTSD, but that his condition had improved in the year between his initial injury and his suicide attempt. In Dr. Mann’s opinion, Claimant’s separation from his third wife was the intervening factor that caused him to attempt suicide. Dr. Mann reported that Claimant had expressed to him that he was now able to attend antique auctions and do more socializing than he had previously. This led Dr. Mann to conclude that Claimant was recovered from his PTSD. Dr. Mann also noted that Claimant had informed him that he wanted to get on with his life, disengage from psychiatric care and visit with family and friends. As Dr. Batt noted, however, it has always been clear that Claimant does not believe in psychology.
41. In reaching his conclusion that Claimant was recovered from PTSD and now partially malingering, Dr. Mann relied to some extent on Claimant’s self-report that he is doing well and engaging more with people and activities. This seems at odds with his own interpretation of Claimant’s personality profile, in which he described Claimant as someone who attempts to place himself in an overly positive light by minimizing his problems. As to Claimant’s response to other test questions, in which he agreed with such statements as “things have been terrible at home,” that he has problems sleeping and that he has “more concerns than most people,” Dr. Mann’s interpretation was that Claimant purposely had biased his answers in a negative manner.
42. In concluding that Claimant no longer suffered from PTSD, Dr. Mann did not use the DSM-IV-TR criteria. Instead, he used the PK scale contained within the MMPI-2. According to Dr. Mann, Claimant tested in the normal range for PTSD on that scale, meaning that he did not suffer from the disorder.
43. In reaching his diagnosis, Dr. Mann also relied heavily on Dr. Mazur’s report that Claimant had advised him immediately after his suicide attempt that he was depressed about the dissolution of his marriage. Dr. Mann stated that he completely agrees with Dr. Mazur’s conclusion that Claimant’s suicide attempt was not related to his thumb injury. Dr. Mann concluded that Claimant had a major depressive disorder, which was in full remission by February 2008.
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44. During their hearing testimony, both Dr. Mann and Dr. Halikias criticized each other regarding the manner in which each had tested Claimant, whether the test was appropriate for a man of Claimant’s age and education and whether each knew all of the relevant facts regarding Claimant’s history.
45. Claimant’s request for attorney’s fees and costs is unclear.
CONCLUSIONS OF LAW:
1. Claimant bears the burden of proof to establish all of the facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963).
2. To establish a so-called “physical-mental” claim, one involving a mental injury that results from a work-related physical injury, Claimant must prove a causal nexus between a compensable physical injury and a psychological impairment. Merrill v. Town of Ludlow, 147 Vt. 186 (1986); Blais v. Church of Christ of Latter Day Saints, Opinion No. 30-99WC (July 30, 1999).
3. When the injury is obscure and a lay person would have no well-grounded opinion as to causation, expert medical testimony is necessary to lay the foundation for an award. Severinghaus v. Banner Publishing Company, Opinion No. 14-98WC (March 13, 1998).
4. When faced with conflicting expert medical opinions the Department traditionally uses a five-part test to determine which is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
5. Claimant submits the medical opinions of his treating psychiatrist, Dr. Batt, as well as the medical expert opinion of Dr. Halikias to establish the claim that he suffers from PTSD as a result of his August 2006 work injury. Dr. Mann disagrees. In his opinion, Claimant no longer suffers from PTSD and the psychological problems that led to his August 2007 suicide attempt are related to the dissolution of his third marriage.
6. The parties do not dispute that Claimant suffered a work-related physical injury when he caught his thumb in an industrial machine at work, and the experts agree that this event was indeed “traumatic.” The dispute centers on whether Claimant’s subsequent psychological impairment arose from the accident or from the dissolution of his third marriage.
7. All of the experts are well qualified. Dr. Batt had the longest treating relationship, and as a result was able to observe Claimant over a fifteen-month period. He was definite in his diagnosis of PTSD. Dr. Halikias was similarly definite in his diagnostic conclusions, commenting that Claimant presented clear, convincing and “robust” symptoms of PTSD.
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8. Dr. Mazur, also a treating doctor in this claim, saw Claimant in the hospital immediately after his suicide attempt. Dr. Mazur himself stated that Claimant’s insight was questionable and the records show that Claimant was confused at the time he was hospitalized. Dr. Mazur’s reliance on Claimant’s statements is questionable, therefore. For the same reasons, Dr. Mann’s reliance on these reported statements in forming his opinions is suspect as well.
9. All of the evaluations were comprehensive. Dr. Mann did recite the history and records more thoroughly in his report than the other experts did, but that does not mean his conclusion is correct. He highlighted many of the positive things Claimant stated to him about his current social life and interests and relied on these statements as well as Dr. Mazur’s conclusions regarding the reason for Claimant’s suicide attempt. In doing so, however, he ignored Dr. Batt’s conclusion that Claimant himself does not understand either the seriousness of his illness or the role that psychology could play in his recovery.
10. I am persuaded by the ordeal that Claimant went through regarding the severe injury to his thumb, the circumstances of that event, his isolating behaviors, nightmares and other psychological symptoms that Drs. Batt and Halikias were correct in their diagnosis of PTSD causally related to the August 2006 work injury. I am further convinced that Claimant’s suicide attempt in August 2007 was precipitated by PTSD, not by depression over his divorce.
11. The final issue in dispute is Defendant’s claim that the psychological injury is not compensable because Claimant’s suicide attempt was willfully intended. Defendant claims that under 21 V.S.A. §649, compensation cannot be awarded for an injury that is caused by an employee’s “willful intention to injure himself.” In response, Claimant argues that his suicide attempt did not amount to a willful voluntary choice and therefore should not bar his right to workers’ compensation benefits.
12. Claimant cites to McKane v. Capital Hill Quarry Co., 100 Vt. 45 (1926), in support of his argument. The court in that case distinguished between a suicide that was a “voluntary, willful choice, with knowledge of the purpose and physical effect of the act,” and one that resulted from “an uncontrollable impulse or in a delirium of frenzy.” Id. at 47. The court found that a suicide that fit within the former category would not be compensable, but one that met the latter description would be. Applying that reasoning here, Claimant argues that his suicide attempt more properly fits the latter categorization.
13. This Department previously has noted that the continued viability of the court’s reasoning in McKane is questionable given modern developments in both workers’ compensation law and the study and treatment of mental illness. Estate of Fatovich v. Burlington Free Press, Opinion No. 19-97WC (July 29, 1997). The critical inquiry is not whether a suicide can be said to have been planned rather than impulsive. Rather, the key question is simply whether a subsequent injury – here, a suicide attempt – flowed naturally from the original compensable injury – here, Claimant’s thumb injury and resulting PTSD. If it did, then it too should be found compensable. See generally, 2 Larson’s Workers’ Compensation Law, §§38.01-38.05 (stating that most jurisdictions have turned away from the type of analysis espoused in McKane in favor of the more modern causal connection analysis).
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14. In Fatovich the Commissioner determined that the claimant’s suicide was not compensable because it arose from an organically caused depression rather than from a work-related injury or condition. In contrast, in the current claim I have determined that the PTSD from which Claimant suffered as a result of his work-related thumb injury was what led to his suicide attempt. The causal connection has been established, from Claimant’s thumb injury to his PTSD to his suicide attempt to his current mental state. The suicide attempt was not an intervening cause and does not bar Claimant from continuing workers’ compensation coverage.
15. As Claimant has prevailed, he is entitled to an award of costs and attorney’s fees pursuant to 21 V.S.A. §678. The invoice submitted by his attorney is unclear, however, as to the total amount requested. Claimant’s attorney shall have thirty days from the date of this decision to resubmit his request.
ORDER:
Based on the foregoing findings of facts and conclusions of law, Claimant’s claim for workers’ compensation benefits is GRANTED. Defendant is hereby ORDERED to pay:
1. Temporary total disability benefits until Claimant either reaches an end medical result for his psychological injury or returns to work, whichever occurs first;
2. Medical benefits covering all reasonably necessary medical services and supplies causally related to Claimant’s compensable psychological injury, including payment for the hospitalization and treatment following Claimant’s suicide attempt;
3. Costs and attorney’s fees in an amount to be determined in accordance with Conclusion of Law No. 15 above.
DATED at Montpelier, Vermont this 13th day of May 2009.
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

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