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Terrance Bortell v. Vermont Composites Inc. (March 25, 2011)

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Terrance Bortell v. Vermont Composites Inc. (March 25, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Terrance Bortell Opinion No. 37L-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Vermont Composites, Inc.
For: Anne M. Noonan
Commissioner
State File No. X-02179
RULING ON CLAIMANT’S MOTION TO ORDER LUMP SUM PAYMENT OF PERMANENT TOTAL DISABILITY BENEFITS AND FOR OTHER RELIEF
The Commissioner previously decided this claim on December 30, 2010. The opinion determined that Claimant was permanently and totally disabled, and ordered that permanent total disability benefits be paid in accordance with 21 V.S.A. §645 commencing on November 10, 2008 (with credit for any permanent partial disability benefits paid since that date).
Claimant now requests that the minimum amount payable under §645(a) – 330 weeks at the applicable compensation rate – be paid in a lump sum in accordance with 21 V.S.A. §652(b), so that the benefits can be prorated in accordance with 21 V.S.A. §652(c). The purpose of the latter section is to protect a claimant’s ongoing entitlement to Social Security benefits by minimizing the offset that otherwise would occur were workers’ compensation permanency benefits not prorated over his or her life expectancy.
In keeping with §652(b), Workers’ Compensation Rule 19.3000 allows the commissioner to approve a claimant’s request for lump sum payment of permanent disability compensation “if it is in the best interests of the claimant.” The rule lists four “positive factors” to be considered in evaluating such a request:
19.3010 The claimant and/or the claimant’s household receives a regular source of income aside from any workers’ compensation benefit;
19.3011 The lump sum payment is intended to hasten or improve claimant’s prospects of returning to gainful employment;
19.3012 The lump sum payment is intended to hasten or improve claimant’s recovery or rehabilitation;
19.3013 The claimant presents other evidence that the lump sum award is in their best interests.
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Workers’ Compensation Rule 19.5000 states that a lump sum payment shall not be approved if:
19.5010 The award was based upon a hearing decision for which an appeal has been filed and the employer or insurer objects to the payment of the lump sum; or
19.5011 The claimant is best served by receipt of periodic income benefits; or
19.5012 The payment is intended to pay everyday living expenses; or
19.5013 The lump sum payment is intended to pay past debts.
It is notable that while the language of Rule 19.5000 is mandatory, prohibiting a lump sum award if any of the four enumerated circumstances exist, the language of Rule 19.3000 is discretionary, in which the four enumerated circumstances are merely “positive factors” to be considered.
In support of his request here, Claimant asserts that since he began receiving permanency compensation his monthly Social Security Disability Income (SSDI) benefit has been reduced. Claimant’s SSDI benefit represents a regular source of household income under Rule 19.3010, and it is in his best interests to maximize his income from that source. On those grounds, I conclude that there is good reason to approve the payment of the first 330 weeks of Claimant’s permanent total disability award in a lump sum.
I further conclude that there is no basis under Rule 19.5000 for rejecting Claimant’s request. Defendant has not appealed the formal hearing decision, and the appeal period has now run. Claimant is better served not by the receipt of periodic income benefits from workers’ compensation, but by the maximization of his income from Social Security Disability. The lump sum payment is not intended to pay everyday living expenses, as Claimant’s Social Security Disability income will be adequate for that purpose. Last, although Claimant has had to borrow money in order to cover some additional expenses he just recently incurred, these were due to unusual and extenuating circumstances, and I do not consider them to be the type of “past debts” envisioned by the rule.
As a final argument, Defendant claims that it will be prejudiced if it is required to pay benefits in a lump sum. Given that Claimant has admitted in the past to suicidal ideation, Defendant argues that it “may have difficulty” recouping the lump sum payment if Claimant dies. Suffice it to say that nothing in Rule 19 even remotely hints at such reasoning as a valid basis for denying a lump sum request.
I conclude that it is appropriate under the circumstances of this case to award Claimant the first 330 weeks of permanent total disability benefits in a lump sum. Contrary to Claimant’s request, however, I will not assess interest or penalties against Defendant for its failure to issue a lump sum payment voluntarily. Absent an order to do so from the Commissioner, Defendant was under no obligation to pay benefits in a lump sum. There is no basis, therefore, for assessing either interest or penalties.
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Defendant is reminded, however, that it is its responsibility, not Claimant’s, to ensure that all outstanding medical bills causally related to the compensable injury are timely paid. To the extent that this has not occurred, Defendant may be liable for interest as charged by the providers.
Claimant having prevailed on his request for a lump sum award, he is entitled to an award of costs and attorney fees. Claimant has submitted two requests for attorney fees, one in conjunction with his original motion and a cumulative one filed after his reply to Defendant’s memorandum in opposition. Considering both submissions together, I conclude that an award of fees totaling $2,392.50 (16.5 hours at $145.00 per hour) is appropriate.
As for costs, Claimant shall have 30 days from the date of this Order within which to submit his request for reimbursement.
ORDER:
Based on the foregoing, Defendant is hereby ORDERED as follows:
1. Defendant shall pay as a lump sum 330 weeks of permanent total disability benefits in accordance with 21 V.S.A. §645 commencing on November 10, 2008 (with credit for any permanent partial and/or permanent total disability benefits paid to date);
2. The award of benefits in this case, totaling $144,332.20, is lump sum compensation for a permanent impairment that will affect Claimant for the rest of his life. Claimant’s remaining life expectancy, based on the National Vital Statistics Reports, Vol. 54, No. 14 (April 19, 2006), is 33.1 years, or 397.2 months. Therefore, even though paid in a lump sum, Claimant’s net benefit is $88,950.60 (after the Commissioner’s award of $21,978.92 for attorney fees and deduction of attorney fees of $55,381.60 from the total award), which shall be prorated pursuant to 21 V.S.A. §652 and considered to be $223.94 per month beginning on November 10, 2008;
3. Attorney fees totaling $2,392.50 and costs to be submitted.
DATED at Montpelier, Vermont this 25th day of March 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.

William Boyd v. Kennametal Inc. (November 10, 2010)

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William Boyd v. Kennametal Inc. (November 10, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
William Boyd Opinion No. 33-10WC
v. By: Sal Spinosa, Esq.
Hearing Officer
Kennametal, Inc.
For: Valerie Rickert
Acting Commissioner
State File No. S-14574
OPINION AND ORDER
Hearing held in Montpelier, Vermont on July 26, 2010
Record closed on September 1, 2010
APPEARANCES:
Ronald Fox, Esq., for Claimant
Glenn Morgan, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant entitled to permanent total disability benefits as a consequence of his compensable work-related injury?
EXHIBITS:
Joint Exhibit I: Medical and vocational rehabilitation records
Joint Exhibit II: Deposition of Peter Upton, M.D., June 10, 2009
CLAIM:
Permanent total disability benefits pursuant to 21 V.S.A. §644
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
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Claimant’s Work Injury
3. Claimant, who is now 42 years old, worked for Defendant as an industrial electrician. On January 31, 2002 he slipped off a ladder. Initially he experienced pain in the right shoulder region. He treated with Dr. Lichtenstein, a family practitioner, and returned to work a week later.
4. Soon thereafter the pain shifted to his lower back and sacrum region. Claimant subsequently was diagnosed with a disc herniation at L4-5 requiring surgery.
5. Defendant accepted Claimant’s injury as compensable and paid workers’ compensation benefits accordingly.
Claimant’s Surgeries
6. On March 20, 2003 Dr. Lon Howard, an orthopedic surgeon, performed an L4-5 fusion. The surgery was performed posteriorly and included the use of metal hardware secured by screws and a bone graft. Claimant was in good post-operative condition and felt relief for six to eight weeks after his surgery.
7. As his activity level increased, however, so did Claimant’s back pain. He described an unbearable band of pain across his lower back, worse in the morning than at night. Claimant judged his back pain to be more intense after the surgery than it had been before, and getting worse. His pain was heightened by sitting, standing, walking and physical therapy. Lying down, massage, hot baths and the use of a back brace provided some pain relief.
8. In April 2004 Claimant consulted with Drs. Ames and Banco, both orthopedic surgeons, about further treatment. Both recommended a second surgery. According to Dr. Banco, Claimant’s first surgery had resulted in a failed fusion. In addition, the hardware screws had loosened, and therefore the supporting hardware would have to be removed and replaced.
9. Orthopedic surgeon Robert Monsey performed Claimant’s second surgery on May 3, 2004. This surgery involved both an anterior re-fusion at L4-5 and a posterior fusion at L5-S1.
10. Claimant saw Dr. Monsey post-operatively for pain around his incisions. Dr. Monsey found nothing abnormal about Claimant’s complaints and prescribed medication and physical treatment.
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11. On February 1, 2005 Claimant saw Dr. Monsey again, this time complaining of back and leg pain worse than prior to his first surgery. Dr. Monsey determined that the fusion was mending appropriately but that Claimant exhibited ongoing pain, psychosocial issues, narcotic pain-killer dependence and functional disability. He noted that Claimant had been out of work for three years and had a 10% chance of ever returning. He explained to Claimant that it was unlikely that he would ever be pain free and discussed further medical options.
12. On May 26, 2005 Dr. Borrazzo, a general surgeon, confirmed the presence of an eventration1 of Claimant’s abdominal wall at site of his anterior surgical incision, causing a protrusion of intra-abdominal contents. Dr. Borrazzo determined that nerve damage from Claimant’s second surgery caused this condition.
13. Dr. Borrazzo performed surgery to repair this condition on June 1, 2005. The surgery, similar to a hernia repair, was followed by ten months of continual draining from four drainage tracts. On December 13, 2006 Dr. Borrazzo performed a further abdominal surgery to debride the wound and promote healing. He followed this with a similar procedure in 2007, as Claimant’s abdominal wound continued to require further surgical attention.
1 An eventration is an abnormal displacement of part or all of an otherwise intact diaphragm into the chest cavity.
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End Medical Result and Permanency Ratings
14. At Defendant’s request, in June 2005 Claimant underwent an independent medical evaluation with Dr. Upton, a neurosurgeon. Dr. Upton reviewed Claimant’s medical records, conducted a physical examination and made the following observations:
• Dr. Upton confirmed that after two back surgeries Claimant was reporting low back pain that was far more severe than what he had reported prior to his first surgery. Virtually any movement, including walking, exercise or physical therapy, exacerbated the pain. Claimant reported that he was able to help out a little around the house, but felt better when lying down. He reported that at times his back pain would shoot into his abdomen and cause pain spasms.
• Dr. Upton noted that due to Claimant’s severe pain and significant use of narcotic medications, he had been referred to the Pain Center at Dartmouth Hitchcock Medical Center to consider the implantation of a morphine pump. The Center was reluctant to perform the procedure and doubted that use of the device would significantly improve Claimant’s pain.
• Dr. Upton reported that Claimant exhibited markedly limited range of motion in his lumbar spine. Attempts to increase Claimant’s range of lumbar flexion produced pain.
• Dr. Upton reported that Claimant was taking a variety of medications, including large dosages of both methadone and dilaudid for pain relief, an anti-inflammatory and a muscle relaxant. Claimant also was taking Cymbalta for anxiety and depression.
15. Noting that Claimant’s pain had not improved despite two fusion surgeries and the use of “enormous” amounts of narcotic medications, and also that it limited him even from participating in physical therapy, Dr. Upton concluded that Claimant had reached an end medical result.
16. At Defendant’s request Dr. Upton saw Claimant again on March 12, 2008. Dr. Upton reconfirmed that Claimant had reached an end medical result. He observed that despite the fact that Claimant’s second surgery had produced an excellent fusion, his back pain still was not relieved. With reference to the AMA Guides to the Evaluation of Permanent Impairment (5th ed.), Dr. Upton assessed Claimant with a 23% whole person impairment referable to his lumbar spine.
17. At his own referral, in April 2010 Claimant underwent a second permanency evaluation, this time with Dr. Gennaro, an orthopedic surgeon. Dr. Gennaro concurred with Dr. Upton’s assessment of a 23% permanent impairment referable to Claimant’s lumbar spine injury. In addition, however, Dr. Gennaro assessed a 10% whole person impairment referable to Claimant’s abdominal condition, which was a consequence of the complications he had suffered following his second fusion surgery. According to Dr. Gennaro, therefore, the combined whole person impairment causally related to Claimant’s work injury was 31%.
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18. With Dr. Upton’s end medical result opinion as support, Defendant terminated Claimant’s temporary disability benefits effective May 18, 2008 and began advancing permanency benefits instead.
Vocational Rehabilitation Efforts
19. Claimant was referred for a vocational rehabilitation entitlement assessment in July 2008. Ken Yeates, a licensed vocational rehabilitation counselor, was assigned to determine whether he might benefit from vocational rehabilitation services.
20. Claimant has a tenth grade education. He was employed as an industrial electrician at the time of his injury, and in that capacity he was capable of evaluating and fixing complicated electrical problems. He is currently unlicensed for failing to maintain the ongoing educational units required.
21. Claimant possesses entry level computer skills. However, due to his pain levels he has difficulty sitting at a computer without leaning on his right arm and elbow. While leaning in this position he is unable to operate a computer with any efficiency. Claimant’s level of functioning also makes it difficult for him to remain active for more than fifteen minutes. His medications impact his ability to concentrate for significant periods of time.
22. After evaluating Claimant’s current function and transferable skills, Mr. Yeates determined that he is not employable in even a part-time position. In support of this conclusion, Mr. Yeates cited numerous factors. Claimant lacks a high school or technical degree and has neither customer service nor office related experience. He has only entry level computer skills. He cannot stand or sit for more than twenty minutes at a time, and takes high dosages of narcotic pain medications. Taken in combination, these factors render Claimant unable to participate in productive training or competitive employment at this time. According to Mr. Yeates, Claimant is incapable of sustaining even home-based employment. I find this conclusion to be credible in all respects.
23. On the basis of Mr. Yeates’ determination that Claimant was unemployable, his vocational rehabilitation file was closed in March 2009.
Claimant’s Work Capacity
24. But for a short period subsequent to his work injury, Claimant has not worked since January 2002.
25. In January 2010 Claimant underwent a functional capacity examination (FCE). The examination lasted five hours, three of which Claimant used to take breaks, lie down and take his medications. After taking his medications, Claimant exhibited difficulty focusing and maintaining his balance. In the end Claimant was crying and could proceed no further. The testing was terminated.
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26. Based on Claimant’s testing, the evaluator concluded that he does not fit into a work capacity category by current standards and does not have sufficient work capacity to engage in gainful employment. Among the evaluator’s specific observations:
• Claimant does have some sedentary abilities, but lacks the ability to sit, handle or endure sedentary work. He could not sit upright for more than one minute and leaned heavily onto his right arm to unweight his back. Claimant’s significant use of narcotics and their consequent effect on decision-making and memory further limited his ability to function safely.
• Claimant fatigued easily. His use of narcotic medications exacerbated his fatigue and reduced his ability to sustain work to no more than a few hours a day, and not every day. This is incompatible with full time work.
• Claimant lacked the core strength or overall endurance to perform material handling for full time work. He had to lie down after the lifting test.
• Claimant’s abdominal scar tissue, combined with his postural adjustments, caused him to twist his trunk. He stood with his trunk shifted to the right but rotated to the left. This made standing difficult. It also impacted Claimant’s balance, which diminished his ability to perform activities while standing.
• Claimant’s preferred positions were sitting, leaning on his right arm or lying down. He could stoop only with his side bent forward and could support his own weight only by using his hands on a support object.
27. In both his 2005 and 2008 examination reports, Dr. Upton also concluded that Claimant had no foreseeable work capacity. He reaffirmed this opinion in his 2009 deposition. Dr. Upton acknowledged that the extent of the pain and associated disability Claimant reported seemed “pretty excessive.” He remarked that the fact that Claimant continued to complain of a wide distribution of pain despite both an apparently solid fusion and “enormous” dosages of narcotic pain medications “didn’t seem to add up very well.” Nevertheless, Dr. Upton testified that he did not necessarily distrust Claimant’s reports of pain. By its very nature, a medical assessment of pain relies principally on the accuracy of what the patient reports, and in that respect it is unavoidably subjective. With that in mind, Dr. Upton maintained his belief that Claimant was permanently and totally disabled.
28. Dr. Gennaro likewise determined that Claimant was permanently incapable of gainful employment.
29. Dr. Lichtenstein, Claimant’s family practitioner, also believed Claimant to be permanently and totally disabled. He reported that Claimant’s life is consumed by pain, that he has only limited ability to exercise and no energy for rehabilitation. Dr. Lichtenstein described Claimant as exhibiting chronic but stable depression and a defeated attitude.
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Claimant’s Current Condition
30. Both Claimant and his wife testified at the formal hearing in this matter as to Claimant’s current symptoms and functional limitations. Their testimony was consistent and credible throughout.
31. Claimant is no longer the active outdoorsman or the household handyman that he once was. Now he either seeks his children’s assistance or proceeds slowly, if at all. Where he once exhibited strength within the home, he is now emotional and prone to crying.
32. Claimant now sleeps fitfully and for long periods. He often awakens feeling like he needs a nap. His memory is poor, his personal hygiene has diminished and he avoids social settings. While he continues to four-wheel, his son often drives and does so carefully and slowly. Claimant’s degree of back pain will determine whether, and for what period of time, he can perform this activity.
33. Claimant used his swimming pool rarely this summer. He only floats and with the aid of a buoying device.
34. Claimant can stand for no more than ten minutes and can sit for hours if positioned in his recliner. He has difficulty walking, often uses a cane and struggles on stairs. When traveling in a car he needs to stop after twenty to forty minutes. He now does little of the driving. He can mow his lawn but does so slowly.
35. Claimant continues to take numerous medications though he is unsure what they are or their dosage. Dr. Lichtenstein, who manages his medications, has reduced his methadone dosage, but increased the dosage of other pain medications due to an increase in shooting pains. Thus, in addition to most of the medications listed in Finding of Fact No. 14 above, Claimant also takes gabapentin for seizures and pain. He also uses medical marijuana and ketamine cream for pain.
36. Claimant continues to draw fluid from his abdominal wound.
37. Claimant described his average day. Shortly after arising he takes his medications and sits in his recliner. The medications “kick in” in the early afternoon. He spends approximately a half an hour daily tending to his outdoor and indoor gardens. He lets his dog out and in. Claimant spends most of his day sitting in his recliner. He performs no heavy work. He is able to manage alone at home when his wife is out.
38. Claimant tries to service his own vehicles, as he did prior to his injury. Occasionally he will use a creeper to get underneath his vehicles, but for the most part he supervises the work of others. Claimant estimates that he works on vehicles for a couple of hours a month.
39. Claimant described his day-to-day pain as “horrific.” It continues to be in his lower spine/pelvic region. He is never pain free. He experiences tight, cramping pain that only his medications can relieve.
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40. During his testimony Claimant leaned noticeably on his right elbow, frequently grimaced in apparent pain and displayed confusion or a lack of memory in response to some questions.
41. Claimant admitted that he had testified before a legislative committee investigating workers’ compensation cases. His testimony did not involve his current claim.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
3. The dispute here centers on whether Claimant’s January 2002 work injury has rendered him permanently and totally disabled. Claimant points to all of the medical evidence, which presents largely uniform support for his claim. Claimant finds additional support for his claim in the 2009 vocational rehabilitation workup and the 2010 functional capacity examination, both of which determined that he was unable to sustain gainful employment.
4. Defendant counters with evidence that Claimant is able to perform a variety of household, recreational and maintenance functions that it contends are inconsistent with a claim of permanent total disability. Defendant also asserts that Claimant’s claim relies almost exclusively on his subjective reports of pain, which it argues are not credible.
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5. Under Vermont’s workers’ compensation statute, a claimant is entitled to permanent total disability benefits if he or she suffers one of the injuries enumerated in §644(a), such as total blindness or quadriplegia. In addition, §644(b) provides:
The enumeration in subsection (a) of this section is not exclusive, and, in order to determine disability under this section, the commissioner shall consider other specific characteristics of the claimant, including the claimant’s age, experience, training, education and mental capacity.
6. The workers’ compensation rules provide further guidance. Rule 11.3100 states:
Permanent Total Disability – Odd Lot Doctrine
A claimant shall be permanently and totally disabled if their work injury causes a physical or mental impairment, or both, the result of which renders them unable to perform regular, gainful work. In evaluating whether or not a claimant is permanently and totally disabled, the claimant’s age, experience, training, education, occupation and mental capacity shall be considered in addition to his or her physical or mental limitations and/or pain. In all claims for permanent total disability under the Odd Lot Doctrine, a Functional Capacities Evaluation (FCE) should be performed to evaluate the claimant’s physical capabilities and a vocational assessment should be conducted and should conclude that the claimant is not reasonably expected to be able to return to regular, gainful employment.
7. A finding of odd-lot permanent total disability is not to be made lightly. Gaudette v. Norton Brothers, Inc., Opinion No. 49-08WC (December 3, 2008). For that reason, and as Rule 11.3100 makes clear, typically there must be evidence to establish first, what the injured worker’s functional capabilities are, and second, that no viable vocational options exist within those capabilities. Id.; Prescott v. Suburban Propane, Opinion No. 42-09WC (November 2, 2009).
8. Here, I conclude that Claimant is permanently and totally disabled as a consequence of his 2002 work injury. Each component of the record in this case supports that conclusion. Defendant’s arguments to the contrary are unconvincing.
9. The functional capacity examination established that Claimant has a low tolerance for standing and sitting, the latter of which is incompatible with even a sedentary work capacity. His heavy reliance on narcotic pain medications and his pain-focused behaviors further preclude any type of work, sedentary or otherwise. Add to that the contorted manner in which Claimant now carries himself and the positional adjustments he requires to reduce his pain and the conclusion that he lacks a work capacity of any sort is as compelling as it is obvious.
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10. The vocational rehabilitation assessment, which was more focused on Claimant’s education, work experience and related aptitudes in the context of his current occupational options, leads to the same conclusion. Rather than promoting alternatives, Claimant’s educational and work experience are limiting factors. What options exist, even at the entry level, require a level of physical means and focus that Claimant’s condition precludes. Thus, the vocational rehabilitation assessment amplifies Claimant’s unsuitability for regular, gainful employment.
11. Both Drs. Gennaro and Lichtenstein confirmed that Claimant is permanently incapable of re-entering the work force. While Dr. Upton questioned the correlation between Claimant’s subjective reports of pain and limited function and his physical condition, nonetheless he consistently maintained that Claimant has no current work capacity and none for the foreseeable future.
12. Defendant urges that Claimant’s ability to perform a variety of household tasks and recreational activities precludes a finding that he is permanently and totally disabled. I conclude that Claimant’s activities are not inconsistent with a finding of permanent total disability. As reflected both in the functional capacity examination and in Mr. Yeate’s vocational rehabilitation assessment, they do not translate into a viable, sustainable work capacity at any level.
13. I conclude that Claimant has sustained his burden of proving that he is permanently and totally disabled as a consequence of his January 2002 work injury.
14. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $4,370.84 and attorney fees totaling $18,313.50. An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded.
15. Claimant’s claim for attorney fees must be reduced. The amendment to Workers’ Compensation Rule 10.0000, which raised the hourly rate at which attorney fees can be assessed to $145.00, became effective on June 15, 2010. Of the total fees charged, 90 hours were incurred prior to that date, and therefore must be charged at the rate previously in effect, or $90.00 per hour. The remaining 36.3 hours were incurred after June 15, 2010 and properly can be charged at the rate of $145.00 per hour. With that adjustment, the total amount allowable is $13,363.50. I find it appropriate to award Claimant attorney fees in that amount.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Permanent total disability benefits commencing on May 18, 2008 in accordance with 21 V.S.A. §645 (with credit for any permanent partial disability benefits paid to date); and
2. Costs totaling $4,370.84 and attorney fees totaling $13,363.50.
DATED at Montpelier, Vermont this 10th day of November 2010.
_______________________
Valerie Rickert
Acting Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Patricia Alexander v. General Electric (February 19, 2010)

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

Patricia Alexander v. General Electric (February 19, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Patricia Alexander Opinion No. 08-10WC
v. By: Jane Dimotsis, Esq.
Sal Spinosa, Esq.
General Electric Hearing Officers
For: Patricia Moulton Powden
Commissioner
State File No. Z-53175
OPINION AND ORDER
Hearing held in Montpelier on September 9 and 11, 2009
Record closed on October 14, 2009
APPEARANCES:
Michael Green, Esq, for Claimant
Glenn Morgan, Esq., for Defendant
ISSUES PRESENTED:
1. Did Claimant develop chronic beryllium disease as a result of working for Defendant?
2. If yes, what is the extent of Claimant’s permanent partial impairment?
3. Is Claimant’s current claim time barred under the provisions of 21 V.S.A. §660(b)?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Curriculum Vitae, Carrie Redlich, M.D.
Claimant’s Exhibit 2: Chronic beryllium disease, article from www.uptodate.com
Claimant’s Exhibit 3: Excerpt from Exhibit 2
Claimant’s Exhibit 4: Excerpt from Exhibit 2
Claimant’s Exhibit 5: BeLPT test results from National Jewish Medical & Research
Center
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Claimant’s Exhibit 6: Letter from Glenn Morgan to Jane Dimotsis, August 19, 2009
Claimant’s Exhibit 7: Letter from Dr. Cecile Rose, August 27, 2009
Claimant’s Exhibit 8: Form 2 and Addendum filed by Martha Driscoll
Claimant’s Exhibit 9: Fax from Martha Driscoll to Michael Green, September 20, 2007
Claimant’s Exhibit 10: Report of Dr. David Rosenburg, March 10, 2008
Claimant’s Exhibit 11: PowerPoint slides of Dr. Redlich’s testimony
Claimant’s Exhibit 12: Managing Health Effects of Beryllium Exposure (2008), article from National Academy of Sciences
Claimant’s Exhibit 13: Preventing Adverse Health Effects from Exposure to Beryllium in
Dental Laboratories, article from U.S. Department of Labor
Claimant’s Exhibit 14: Optimizing BeLPT Criteria for Beryllium Sensitization (2008),
Dr. D. C. Middleton
Defendant’s Exhibit A: Chronic Beryllium Disease and Sensitization at a Beryllium
Processing Facility (2005), Rosenman
Defendant’s Exhibit B: Is Chronic Beryllium Disease Sarcoidosis of Known Etiology?
(2003), Rossman
Defendant’s Exhibit C: Diagnosis of Chronic Beryllium Disease Within Cohorts of
Sarcoidosis Patients (2006), Muller-Quernheim
Defendant’s Exhibit D: Curriculum Vitae, David Rosenburg, M.D.
Defendant’s Exhibit E: Statement of Sarcoidosis (1999), article from American Thoracic
Society
Defendant’s Exhibit F: Dr. Rosenburg, PowerPoint slides regarding BeLPT
Defendant’s Exhibit G: Rocky Flats Beryllium Health Surveillance (1996), Stange
Defendant’s Exhibit H: Sensitization and Chronic Beryllium Disease Among Workers in
Copper-Beryllium Distribution Centers (2006), Stanton
Defendant’s Exhibit I: Chronic Beryllium Disease (August 28, 2009), National Jewish Health website excerpt
Defendant’s Exhibit J: Summary of Claimant’s work history
Defendant’s Exhibit K: Industrial hygiene reports
Defendant’s Exhibit L: Industrial hygiene summary
Defendant’s Exhibit M: United States Department of Labor, www.osha.gov/SLTC/beryllium/otherresources.html
Defendant’s Exhibit N: Beryllium Lymphocyte Proliferation Test FAQS (August 28, 2009), National Jewish Health
Defendant’s Exhibit O: Misdiagnosis of Sarcoidosis in Patients With Chronic Beryllium
Disease (2003), Fireman
Defendant’s Exhibit P: Influence of MHC CLASS II in Susceptibility to Beryllium Sensitization and Chronic Beryllium Disease (2003), Maier
Defendant’s Exhibit Q: Proliferation Response of Bronchoalveolar Lymphocytes to
Beryllium (1988), Rossman
Defendant’s Exhibit R: Curriculum Vitae, Thomas Smith, M.D.
Defendant’s Exhibit S: Consultation note, May 21, 2009, Thomas Smith, M.D.
Defendant’s Exhibit T: Letter from Dr. Smith to Martha Driscoll, June 11, 2009
Defendant’s Exhibit U: Letter from Dr. Smith to Martha Driscoll regarding impairment
rating, June 11, 2009
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CLAIM:
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Medical benefits pursuant to 21 V.S.A. §640
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim. Judicial notice also is taken of the relevant portions of the AMA Guides to the Evaluation of Permanent Impairment, 5th ed. (the “AMA Guides”).
Claimant’s Employment
3. Beginning in 1975, Claimant worked at Defendant’s Rutland, Vermont plants for approximately twenty years.
4. At its Rutland plants Defendant manufactured, among other things, turbine engine blades for the nuclear and aerospace industries. The blades are made from metal alloys which include, because of its unique properties, the metal beryllium. Copper-beryllium alloy is a common metal used for blade production, though not the only one.
5. Although Claimant worked different jobs at Defendant’s plants, her principal job was “bencher.” She used grinding and polishing wheels to remove imperfections and achieve the required blade size and shape. Claimant worked at a benching well, or sink, which had a glass protective shield and a suction apparatus to remove airborne material. Claimant testified that she was covered in “dust” after each workday. Her work station was near that of other benchers who performed the same duties.
6. Although Claimant herself did not work on copper-beryllium alloy blades, for approximately six and a half years she worked near the copper-beryllium benching stations. Defendant’s plant air samplings confirmed the airborne presence of beryllium at low levels. Claimant was never individually tested for beryllium exposure while in Defendant’s employment.
7. Claimant retired in 1996 due to knee problems and has not returned to work. She had no known respiratory problems when she retired.
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Claimant’s Medical Condition
8. After her retirement Claimant experienced shortness of breath. As the problem worsened, she eventually sought medical attention. After a regimen of medications failed to relieve her breathing problems, Claimant underwent a lung biopsy in April 2001. The test revealed a lung tissue condition that supported a diagnosis of sarcoidosis. Sarcoidosis is an inflammatory lung disease of unknown origin characterized by small nodules called granulomas.
9. Until 2007 Claimant’s medical providers continued to treat her for sarcoidosis. These treatments included strong, regular doses of steroid medications. During this time Claimant developed several other serious medical conditions, some of which were causally related to her steroid medications.
10. In 2007 Dr. Mar became Claimant’s treating pulmonologist. Claimant was continuing to experience serious respiratory problems. Based on her own research, she independently contacted the Vermont Department of Health. There she learned that exposure to beryllium could cause the same symptoms as those she was experiencing. In order to explore this diagnosis further, Dr. Mar arranged for Claimant to undergo a beryllium lymphocyte proliferation test (BeLPT). In May 2007 he sent a sample of Claimant’s blood to the National Jewish Medical and Research Center in Denver, Colorado for testing. The results were reported as positive for beryllium.
11. Based on the results of the BeLPT blood test, in May 2007 Dr. Mar changed his diagnosis of Claimant’s lung condition from sarcoidosis to chronic beryllium disease (CBD). At the same time, Dr. Mar sought a second diagnostic opinion from Dr. Davis, a pulmonologist at Fletcher Allen Health Care. Dr. Davis examined Claimant on May 31, 2007 and reviewed both her medical and work history. He confirmed the diagnosis of CBD.
12. On August 22, 2007 Claimant filed a Notice of Injury and Claim for Compensation (Form 5), in which she asserted that her chronic lung disease was causally related to beryllium exposure at work. Defendant’s Form 2 Denial of Benefits was filed on September 20, 2007.
13. Claimant is currently 68 years old. Due to her respiratory limitations she uses a motorized scooter to get around and requires bottled oxygen at all times.
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CBD and Permanent Impairment Ratings
14. Dr. Carrie Redlich is a professor of medicine and acting program director of the Occupational and Environmental Medicine Program at Yale University. Her primary area of expertise is occupational and environmental lung disease. She is a nationally recognized expert on immune mediated lung diseases,1 including CBD. Dr. Redlich has occupied leadership roles in numerous pulmonary disease organizations and also has authored both journal articles and a textbook on the subject. Her work has included the study of low level exposures to beryllium. Dr. Redlich splits her time among teaching, research and clinical practice. She is a reviewer of the pulmonary impairment guidelines of the AMA Guides.
15. Dr. Redlich reviewed Claimant’s medical records and concluded that Claimant had CBD. She found clear evidence of the three key elements required for a CBD diagnosis:
• Exposure to workplace beryllium;
• Lung disease, specifically as evidenced by the granulomas present in Claimant’s April 2001 biopsy; and
• Positive BeLPT findings.
16. Dr. Redlich noted that unlike other more common airborne occupational diseases, an immune mediated disease such as CBD is triggered in susceptible individuals by dosage levels that are difficult to define and well below the standards set by the Occupational Safety and Health Administration. According to Dr. Redlich, even a limited exposure to beryllium can trigger the disease. The onset of symptoms can be delayed for some time after exposure.
17. Dr. Redlich testified that CBD is commonly misdiagnosed as sarcoidosis because the granulomas characteristic of both diseases appear identical. In Claimant’s case, the differential diagnosis was made based on (a) Claimant’s work place exposure to beryllium; and (b) her positive BeLPT results. Adding those two elements to the analysis, Dr. Redlich concluded that CBD was the correct diagnosis. Additionally, Dr. Redlich pointed to Claimant’s poor response to treatment and the absence of other pulmonary or additional organ involvement as support for her CBD diagnosis.
18. Dr. Redlich refuted Defendant’s claim that a second BeLPT was required to confirm a diagnosis of CBD. She conceded that according to the relevant medical literature a second test is appropriate in the context of screening otherwise healthy, asymptomatic workers. In those situations the second test provides the higher level of certainty necessary to justify further, more invasive diagnostic procedures such as lung biopsy. Dr. Redlich differentiated that setting from Claimant’s situation, however. In Claimant’s case, in addition to having had actual exposure to beryllium she already had undergone a biopsy, which clearly showed lung disease, prior to her BeLPT. In that circumstance, a second BeLPT was not necessary.
1 These diseases involve an immune system response to what is typically a very low dosage exposure.
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19. Dr. Redlich consulted the AMA Guides to assess the extent of Claimant’s permanent impairment. Based on her review of Claimant’s lung function, Dr. Redlich assessed a class four, severely impaired, level of impairment. The whole person impairment range for that classification is from 51 to 100%. Dr. Redlich considered Claimant to be at the severe end of the range, and therefore rated her with a 90% whole person impairment.
20. Dr. David Rosenburg is an expert in pulmonary disease and occupational medicine. He has enjoyed numerous fellowships and teaching posts and is currently employed by the Cleveland Clinic. Dr. Rosenburg provides workplace hygiene protocols for numerous companies, has published peer reviewed articles on lung disease and has a clinical practice which includes 90% lung disease patients. Over the years, he has treated many more patients diagnosed with sarcoidosis than CBD.
21. Dr. Rosenburg opined that while it is possible that Claimant has CBD it is more likely that she has sarcoidosis. He agreed with the three diagnostic criteria identified by Dr. Redlich as necessary for a finding of CBD, but disagreed that they have been met sufficiently in Claimant’s case.
22. Dr. Rosenburg testified that without a second BeLPT he cannot be certain that Claimant has CBD. By his own admission, however, the medical literature he cited in support of his contention referenced screenings performed on healthy, asymptomatic worker populations. Further, he cited medical literature critical of National Jewish’s numerical test standards for beryllium sensitivity and described their results as a “low positive.” Dr. Rosenburg testified that sarcoidosis is a diagnosis of exclusion and that he could not exclude CBD.
23. On May 18, 2009, Dr. Smith, head of the Pulmonary Care Department at Albany College, examined Claimant. Based on his examination and a review of the medical records available to him he reported that Claimant’s symptoms were consistent with the criteria for CBD. Dr. Smith expressed no concern at that time over the single positive test for beryllium. Subsequently, however, on June 11, 2009 Dr. Smith altered his opinion. Citing the absence of a second BeLPT, Dr. Smith now concluded that Claimant suffered from sarcoidosis, not CBD. As support for his new opinion Dr. Smith referenced a medical paper that dealt with beryllium screening in a healthy, asymptomatic population. Dr. Smith admitted in his testimony that he was not an expert on CBD. He also admitted that if indeed Claimant had CBD, in his opinion it would be attributable to her work for Defendant.
24. Dr. Smith also evaluated the extent of Claimant’s permanent impairment. In doing so, he continued to assume that Claimant suffered from sarcoidosis rather than CBD. Dr. Smith had difficulty separating Claimant’s other health conditions from his pulmonary assessment. In the end, relying on medical reports provided to him, he assessed a class four pulmonary impairment, the same classification Dr. Redlich used in her impairment rating. Unlike Dr. Redlich, however, Dr. Smith rated Claimant at the lower end of the class four range, with a whole person impairment near 50%. In doing so, Dr. Smith admitted that he did not follow the AMA Guides protocol for rating pulmonary function impairment.
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CONCLUSIONS OF LAW:
CBD or Sarcoidosis?
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. At issue here is whether Claimant has CBD or sarcoidosis. Claimant contends that she contracted CBD as a result of workplace exposure to beryllium over the many years of her employment for Defendant. Defendant argues that Claimant has not proven that she suffers from CBD because she has not undergone the proper diagnostic testing for the disease. Rather, Defendant asserts that Claimant more likely has sarcoidosis, which because of its unknown cause is not compensable. To resolve this issue requires careful review and analysis of conflicting medical evidence.
3. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
4. Applying the above test to the conflicting medical opinions offered in the current claim, I find Dr. Redlich’s testimony to be the more credible and persuasive. Unlike Defendant’s experts, Dr. Redlich has developed a convincing concentration on the subject of beryllium disease, from exposure to diagnosis. Her expertise is particularly suited to the issues in this case.
5. Dr. Redlich identified the three necessary components of a proper CBD diagnosis – workplace exposure, granulomas indicative of lung disease and positive BeLPT findings. As to the first component, Defendant does not deny the existence of beryllium within its plants, both as a component of the metal alloys used to manufacture turbine blades and as an airborne contaminant in and around Claimant’s work stations. Defendant’s attempt to minimize Claimant’s exposure to airborne beryllium does not explain away the ability of very low doses over a short period of time to trigger even a delayed response in those susceptible to it.
6. As to the second component, Claimant’s biopsy showed granulomas consistent with a diagnosis of either sarcoidosis or CBD.
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7. After years of being misdiagnosed, Claimant’s positive blood test for beryllium sensitization finally provided the third and last clue to a correct diagnosis – CBD. Defendant’s insistence on a second BeLPT to confirm the diagnosis is not supported by the medical literature, which focuses on healthy, asymptomatic populations rather than individual patients, like Claimant, who already have exhibited clinical evidence of the disease.
8. I accept as credible Dr. Redlich’s analysis, that under the circumstances of this case a second BeLPT was not necessary. I conclude, therefore, that Claimant has sustained her burden of proving that CBD is the appropriate diagnosis.
Impairment Ratings
9. I also accept Dr. Redlich’s determination as to the extent of Claimant’s permanent impairment. Although both Dr. Redlich and Dr. Smith used the same section of the AMA Guides, Dr. Redlich’s rating was consistent with the required protocol for rating pulmonary impairment. Dr. Smith’s was not. Dr. Redlich’s greater familiarity with the AMA Guides makes her opinion even more credible. In accordance with her rating, therefore, I conclude that Claimant suffered a 90% whole person permanent impairment as a result of her work-related exposure to beryllium and subsequent development of CBD.
Statute of Limitations
10. Last, I find that Defendant’s claim that Claimant’s action is time-barred is without merit. The relevant statute, 21 V.S.A. §660(b), provides that “. . . a claim for occupational disease shall be made within two years of the date the occupational disease is reasonably discoverable and apparent.” Here, Claimant was misdiagnosed for years, during which time she had no reason to question her doctors’ assessment of her condition. Her true condition did not become reasonably discoverable and apparent until May 2007, when Dr. Mar first diagnosed CBD on the basis of Claimant’s positive BeLPT findings. Claimant filed her claim for workers’ compensation benefits within three months thereafter, well within the applicable statute of limitations.
11. Claimant has submitted a request for costs totaling $11,725.05 and attorney fees totaling $12,759.00. An award of costs to a prevailing claimant is mandatory under 21 V.S.A. §678, and therefore these costs are awarded. As for attorney fees, these lie within the Commissioner’s discretion. I find they are appropriate here, and therefore these are awarded as well.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Permanent partial disability benefits in accordance with a 90% whole person impairment with interest in accordance with 21 V.S.A. §664, the commencement of payment yet to be determined by the parties;
2. Medical benefits covering all reasonable and necessary medical services and supplies causally related to treatment of Claimant’s compensable work-related disease; and
3. Costs totaling $11,725.05 and attorney fees totaling $12,759.00.
DATED at Montpelier, Vermont this 19th day of February 2010.
________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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

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

C. F. v. National Life Insurance Co. (November 17, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
C. F. Opinion No. 44-06WC
By: Margaret A. Mangan
v. Hearing Officer
National Life Insurance Co. For: Patricia Moulton Powden
Commissioner
State File No. T-20446
Hearing held in Montpelier on August 22 and 23, 2006
Record closed on September 20, 2006
APPEARANCES:
Steven P. Robinson, Esq. and Jennifer Ciarlo Pacholek, Esq., for the Claimant
Keith J. Kasper, Esq. and David Berman for the Defendant
ISSUES:
1. Is Claimant’s August 19, 2003 fall at home a compensable result of her March 10, 2003 work related injury?
2. If so, what injuries did she suffer as a result of her August 19, 2003 incident?
3. If the August 19, 2003 injuries are compensable, has she reached a medical end result for those injuries? Is she entitled to additional temporary total disability benefits and, if so, for what time periods?
4. If the August 19, 2003 injuries are compensable, what is the extent of the resulting permanent partial impairment?
5. Is Claimant permanently and totally disabled as a result of her work related injury or injuries?
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EXHIBITS:
Joint:
I: Medical records
II: Performance evaluations
III: School Records
Claimant:
1: Defense counsel’s December 13, 2005 letter
2: Claimant’s counsel’s December 27, 2004
Defendant:
A: Private Investigator Videotape
STIPULATION:
1. On March 10, 2003, Claimant was an employee of Defendant within the meaning of the Vermont Employer’s Liability and Workers’ Compensation Act (Act).
2. On March 10, 2003, Defendant was the employer of Claimant within the meaning of the Act.
3. On March 10, 2003, Claimant had one dependent within the meaning of the Act who turned twenty-one years old on November 19, 2004 at which time he was no longer dependent.
4. On March 10, 2003, Claimant had an average weekly wage of $482.31 resulting in an initial compensation rate of $321.54.
5. On March 10, 2003 Claimant suffered a work-related injury.
6. On August 19, 2003, Claimant fell at home. Defendant contests the compensability of this incident and any resulting injuries, but Claimant alleges that the fall was the direct result of her work-related March 10, 2003 injury.
7. On January 5, 2005, Defendant filed a Form 27 terminating Claimant’s indemnity benefits for her accepted work-related right knee injury, based on a determination of medical end result with 4% whole person impairment due to the accepted right knee claim.
8. On August 4, 2005, Claimant was separated from her employment at National Life.
9. To date, Claimant has received all indemnity and medical benefits associated with her right knee claim.
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CLAIM:
Claimant seeks additional medical, temporary total, permanent partial, vocational and permanent total disability benefits as a result of her work-related injury or injuries, and if successful, an award of attorney fees and costs.
OVERVIEW:
It is undisputed that Claimant suffered a work related fall in March of 2003, although the full extent of the injuries from that fall is contested. Six months later, Claimant fell again, but this time at home. Did the second fall result from the earlier, work-related fall? If so, what injuries did Claimant suffer? Is Claimant capable of regular, gainful employment? Several experts have rendered opinions on the sequelae of the falls. Because some of the opinions were obtained years after the two falls, when facts supporting the opinions differ from contemporaneous medical records, the earlier records will control.
FINDINGS OF FACT:
1. During the two-day hearing, Claimant was alert. She testified with no signs of anomia (difficulty finding words) and answered questions clearly and coherently. She exhibited no overt signs of lack of concentration or attention.
2. Before any of the events giving rise to this claim occurred, Claimant had worked running machinery at Rock of Ages for about twenty years and at National Life for about eighteen years.
3. Claimant was a responsible, reliable worker, missing time from work only for an occasional cold.
4. Claimant’s work for National Life was that of a full time set up person. She cleaned trucks, ran errands, checked the cleanliness of restrooms and ensured the proper set up of meetings. Claimant took pride in her work.
5. On March 10, 2003, Claimant fell when she was leaving work. She stubbed her toe and fell forward, landing on hands, knees and hitting her face.
6. At a doctor’s visit on April 29, 2003, Claimant reported to her primary care physician, Dr. Kristopher Jensen, that she had fallen three weeks earlier, injuring her right knee and that she had what the doctor described as “short lived loss of consciousness” at the time of the fall. Dr. Jensen noted no “obvious instability” when Claimant was walking. He also suggested that the persistent pain may have been due to her being on her feet most of the day at work.
7. In June 2003, Claimant telephoned Dr. Jensen’s office, reporting that she still had pain and intermittent swelling in her right knee.
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8. In mid June 2003, Claimant saw Dr. Stafford who noted increase in her knee pain after moving a lot of furniture at work.
9. On July 8, 2003, Claimant was seen again for knee pain and stiffness, which she reported was worse when she was working. On examination, the knee was tender but had “near full range of motion.”
10. On July 31, 2003, Claimant was seen by Charles Butterick, Physician Assistant at Green Mountain Orthopaedic Surgery, who noted a complaint of persistent knee pain. Mr. Butterick recommended physical therapy.
11. At physical therapy Claimant demonstrated weakness in her right leg. A program was set up with goals of increasing the strength and flexion in her right leg and decreasing the pain.
12. In June and June of 2003, Claimant had two instances when her right knee gave out, although she did not fall either time. The first was in the cafeteria in the National Life Building when she caught herself on the salad bar as the knee gave way. The second time was while she was cleaning a rest room, when she again caught herself and prevented a fall. Claimant recalled both instances in some detail at hearing.
13. On August 19, 2003, Claimant fell down her stairs at home. She then went to the emergency department at Copley Hospital where her complaints of left shoulder and back pain were noted. At that time, there was no evidence of head trauma.
14. Claimant fractured her left wrist in the fall at home, a diagnosis made the day of the fall. The fracture required surgery that Dr. Landvater performed on August 25, 2003. Sometime later, it was learned that she also fractured her left lower leg, the fibula.
15. On August 25, 2003, Dr. Landvater operated on Claimant’s fractured left wrist.
16. Also on August 25, 2003, the day of the left wrist surgery, Claimant saw Dr. Jensen who noted that Claimant broke her wrist in the fall and hit her head, although she had no loss of consciousness.
17. An October 21, 2003 physical therapy note documented Claimant’s description of having lost her balance when she fell down the steps at home.
18. In addition to surgery on the wrist, Claimant received medical care and physical therapy for her left wrist, leg and shoulder.
19. In November 2003, Dr. Landvater noted that Claimant was not yet to resume work.
20. In December 2003, Dr. Stephanie Landvater noted that Claimant was to return for treatment if she had continued “catching and buckling” in her left knee.
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21. On January 7, 2004, Dr. Landvater wrote that Claimant could only work four hours per day because of her work related right knee problem. Dr. Landvater reiterated that opinion on January 27th when she diagnosed a meniscal tear in Claimant’s right knee of a year’s duration.
22. In January 2004, Dr. Jensen also saw the Claimant, noting that she was alert and oriented, but making no mention of mental deficits.
23. Dr. Williams noted on a prescription pad dated January 19, 2004 that Claimant had work related fasciitis. He may have been unaware that Claimant had only been working half time for two weeks and not at all for several months before that.
24. On February 26, 2004, Claimant was in a motor vehicle accident (MVA). When she was examined a few days later, it was noted that she had a headache and some dizziness, although dizziness predated the MVA. It was also noted that she had an upper back strain.
25. By April 2004, Claimant’s headaches had resolved and she was back to work half time performing the same work she had been doing before the MVA.
26. On May 5, 2004, Dr. Landvater operated on Claimant’s right knee for what was determined to have been a work related meniscal tear from the fall in March 2003.
27. A July 16, 2004 Physical therapy note recorded Claimant’s comment that “I get dizzy since I started coming here.”
28. Dr. Landvater released Claimant to work at modified duty from August 4, 2004 to September 2, 2004, four hours a day.
29. On August 17, 2004, Claimant reported to a physical therapist that she was working four hours a day, limping a lot at work and “they don’t like it.”
30. On August 30, 2004, a therapist noted that Claimant’s pain behaviors were hindering her progress. She “declined” to perform some recommended activities. And she reported limping and being sore at work after moving some things. Yet, she also reported walking two hours at a fair the previous Sunday.
31. In September 2004, Claimant spent one day at work on the building inspection and inventory.
32. Claimant worked until August 2005 when her employment at National Life ended. During the time Claimant worked after her injury, she did less physical work, but was assigned to tasks that required more computer work. She was terminated because of her inability to perform physical functions necessary for her job, not because of any mental disabilities.
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33. Dr. Landvater placed Claimant at medical end result on November 2, 2004 with 4% whole person impairment for the injury to her right knee from the March 2003 fall at work.
34. At work, Claimant did not show any signs of problems with memory or concentration, even when she was on light duty part-time work in August of 2003.
35. Claimant had satisfactory performance evaluations at work from June 2004 through March 2005.
36. A private investigator videotape shows Claimant walking without a cane, even when it was snowing. Although slow while walking, Claimant was able to hold items in her arms and maintain her balance. She did not use a cane at the hearing, although she limped when walking.
37. One of Claimant’s activities is bingo, which she plays with eighteen cards.
Experts
38. Dr. Victor Gennaro is an orthopedic surgeon who evaluated this case for the Claimant. Based on his examination and history that Claimant’s knee was painful as she descended the stairs in August 2003, Dr. Gennaro opined that the original work related injury led to that fall. He based that opinion on the fact that she had an untreated meniscal tear in that knee at the time of the fall, a diagnosis well supported by Dr. Landvater’s records and surgical findings. However, Dr. Gennaro was not able to link the fasciitis to Claimant’s work.
39. Dr. Gennaro opined that Claimant is unable to return to gainful employment because of her cognitive difficulties, deconditioning and painful knees.
40. In March of 2006, Dr. Gennaro opined, and I find, that Claimant had not yet reached medical end result for her left shoulder and left knee, injuries she sustained when she fell down the stairs at home in August of 2003.
41. Dr. John Johansson, medical director of Vermont Center for Occupational Rehabilitation, performed an IME of the Claimant in 2004. At that time, she was working full eight hours days, with breaks as needed. Claimant provided a history to Dr. Johansson without any signs of anomia or memory problems. When he saw her again in 2005, when Claimant had been out of work with foot problems, he opined that she could return to work with good footwear.
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Functional Capacity Evaluations
42. Louise Lynch performed a functional capacity evaluation on Claimant in January 2006. Ms. Lynch understood that Claimant used a cane when she walked outside, a finding inconsistent with the videotape. After testing, Ms. Lynch concluded that Claimant had a part-time sedentary work capacity. She opined, based on Claimant’s physical limitations and her observations, that Claimant is not employable in the competitive work place.
43. Leslie Bell performed a functional capacity evaluation of the Claimant in April 2006. During that evaluation, Claimant self limited in 25% of the tasks, behavior that “influenced the outcome of the test.” Ms. Bell determined that Claimant had a sedentary work capacity for an eight-hour day based on that evaluation. Further, she opined that Claimant could navigate stairs only rarely, such as for entering a building, but should not have regular stare climbing throughout the day.
Vocational Rehabilitation Opinions
44. George Fotinopoulos, Vocational Rehabilitation (VR) Counselor, initially determined that Claimant was entitled to vocational rehabilitation services. By agreement of the parties, an extension was granted for the submission of a rehabilitation plan. Claimant now alleges that the carrier refused to pay for VR services. The carrier alleges that Mr. Fotinopoulos never followed up after the extension was granted. Regardless, Claimant never received VR services.
45. John May, Vocational Rehabilitation Counselor, performed a forensic vocational assessment in this case. He based his opinions on a private investigator videotape, functional capacity evaluations, Claimant’s vocational history, the medical records and his VR expertise. He concluded that Claimant would benefit from vocational rehabilitation services that would “enhance her employability.” He predicted that with such services, Claimant will return to gainful employment.
Expert Opinions
Head injury
46. Highly disputed is whether Claimant suffered a head injury in the fall down the stairs, and if so, whether such an injury, combined with other injuries, disables her. In support of her claim is the opinion from Dr. Solomon, based on neuropsychological examinations. Dr. Solomon is the director and founder of the Memory Clinic. He opined that Claimant meets the criteria for a traumatic brain injury (TBI) for both of her work related falls. That opinion is based on a comparison in what he determined was her pre injury IQ, school performance, and current testing. Based on cognitive deficits, he assessed her neuropsychological impairments at 25% whole person.
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47. Dr. Solomon’s opinion was based in part on an inaccurate history Claimant and her cousin gave him. For example, they described retrograde and posttraumatic amnesia that is recorded nowhere in the records. They also described a precise mechanism of the fall —falling backwards and hitting her head multiple times—that is described to Dr. Solomon for the first time in the several years since the accident.
48. Dr. Peyser, also a neuropsychologist with expertise working with patients who have had brain injuries, evaluated the Claimant for the defense. Based on the records and her expertise, Dr. Peyser found no record of posttraumatic amnesia, which is relevant to the issue of head injury. Retrograde amnesia is not relevant to the inquiry, in her opinion. Dr. Peyser, too, tested Claimant, finding no residual cognitive deficits from the falls. Claimant described cognitive losses to Dr. Peyser, yet those losses are not recorded in the records until September 2005. Claimant described difficulty finding words, yet did not demonstrate that difficulty during interview. Based on testing, Dr. Peyser attributed low or borderline results to low effort. Dr, Peyser concluded that, with the exception of Claimant’s self-reports, “there is no evidence …that Ms. Fisher suffered a head injury with significant cognitive deficits to interfere with her function on the job or in daily life.”
Attorney fees and costs
49. Claimant submitted evidence that her attorneys worked 170.3 hours on this claim and paralegals 5.8 hours. She incurred $6,629.78 in necessary costs, including $900 for Dr. Solomon’s record review and $1,000 for Dr. Gennaro’s two-hour preparation and one hour of deposition testimony.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1962). This Claimant must establish by sufficient credible evidence the character and extent of the injury, as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984).
2. Where the claimant’s injury is obscure and the layperson could have no well-grounded opinion as to its nature or extent, expert testimony is the sole means of laying a foundation for an award for both compensability issues as well as the extent of the award sought. Lapan v. Berno’s, Inc., 137 Vt. 393 (1979).
Causation of Second fall
3. Every natural consequence of a work related injury is also compensable. See Fleury v. Legion Ins., Opinion No. 43-02WC (2002) (citing 1 Larson’s Workers’ Compensation Law. § 10.00).
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4. Three factors convince me that it is more probable than not that the work related injury led to the fall at home. First, Claimant testified convincingly that her knee had given way twice before the fall at home. Second, at the time of the fall she had an untreated torn meniscus. Third, an orthopedic expert familiar with the signs and symptoms of a torn meniscus, Dr. Gennaro, attributed the fall to the untreated tear.
5. As a result of the second fall, Claimant injured her head, left wrist, shoulder, leg and her back.
6. Any head injury she may have sustained has since resolved without residual deficits, a conclusion well supported by Dr. Peyser’s opinion. Claimant’s work performance after that fall and her embellished history undercut the opinion proffered by Dr. Solomon to the contrary. Therefore, Claimant is not entitled to permanent partial disability benefits for a traumatic brain injury.
7. To prevail on her claim for permanent total disability (PTD), Claimant must prove that a work related injury or injuries caused impairments that render her unable to sustain regular gainful employment. Her age, experience, training, education, occupation and mental capacity are all factors relevant to a finding of PTD. 21 V.S.A. § 644(b). WC Rule 11.3100. One who is permanently and totally disabled must have no reasonable prospect of finding regular employment.” § 645.
8. When one is unable to return to work for which she has had previous training or experience, the worker is entitled to vocational rehabilitation services. 21 V.S.A. § 641(a).
9. Claimant has failed to prove that she is permanently and totally disabled. Although she may not have had the most successful academic record as a child, Claimant has proven herself a competent, affable and dedicated worker for her adult life. It is unfortunate that employment with National Life did not work out for her. It is also unfortunate that vocational rehabilitation services were not provided. However, she is capable of participating in vocational rehabilitation.
10. Therefore, Claimant is entitled to vocational rehabilitation benefits. She is also entitled to temporary total disability retroactive to their discontinuance until she reaches medical end result for the physical injuries incurred in the work related fall. Interest on those benefits must be calculated from the date those benefits were due until paid. 21 V.S.A. § 664.
11. Pursuant to 21 V.S.A. § 678(a) and WC Rule 10.000, a prevailing Claimant is entitled to a mandatory award of necessary costs and discretionary award of reasonable attorney fees when she prevails. Claimant submitted evidence that her attorneys worked 170.3 hours on this claim and paralegals 5.8 hours. She incurred $6,629.78 in necessary costs.
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12. The fees requested are awarded at $90 .00 per hour for attorney time under WC Rule 10.1210 and $60.00 per hour for paralegal time. C. C. v. Eveready Battery Co, Opinion No. 38-05 (2005). Although Claimant has not prevailed on the permanent total disability claim, she has proven that the second fall is compensable, a highly contested claim. She has prevailed on her claim for additional temporary total disability benefits. The hours her attorney worked to achieve this success were reasonable.
13. The costs associated with the unnecessary aspects of the claim, including Dr. Solomon’s fees, must be subtracted from the total cost request. In other respects, the costs were necessary to the successful aspects of the claim.
Summary
14. In sum, Claimant’s August 19, 2003 fall at home was a compensable result of her March 10, 2003 work related injury. As a result of that fall, Claimant suffered a head injury that has resolved as well as shoulder and leg injuries that have not yet reached medical end result. She is entitled to temporary total disability benefits until she reaches medical end result or successfully returns to work. 21 V.S.A. § 642; 643a. Claimant is not permanently and totally disabled as a result of her work related injury or injuries.
ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law, this claim for permanent total disability benefits is DENIED. However, Defendant is ORDERED to:
• Provide vocational rehabilitation benefits to Claimant;
• Pay TTD retroactive to the discontinuance with interest accruing from the date payment would have been made had the second fall been accepted until paid;
• Pay attorney fees and costs:
• Otherwise adjust the claim for the second fall, including payment of permanent partial disability benefits when Claimant reaches medical end result.
Dated at Montpelier, Vermont this 17th day of November 2006
________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

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

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

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

A. M. v. Newmont Slate Co. (January 4, 2007)

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

A. M. v. Newmont Slate Co. (January 4, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
A. M. Opinion No. 59-06WC
By: Margaret A. Mangan
v. Hearing Officer
Newmont Slate Co. For: Patricia Moulton Powden
Commissioner
State File No. U-09157
Hearing held in Montpelier on September 26, 27 and 28, 2006
Record closed on December 4, 2006
APPEARANCES:
Steven J. Howard, Esq., for the Claimant
David R. McLean, Esq., for the Defendant
ISSUES:
1. Whether Mr. McFarren is permanently and totally disabled as a result of the November 5, 2003 injury.
2. Whether Mr. McFarren has committed fraud such that he is not entitled to any further workers’ compensation benefits.
EXHIBITS:
Joint: Miscellaneous correspondence
Claimant:
A. Whitehall Health Center Records
B. Physical Therapy Records
C. Vermont Orthopaedic Clinic records
D. Rutland Regional Medical Center records
E. Vermont Neurosurgery Associates records
F. Dr. Kirbach’s FCE Report
G. CNA letter March 19, 2004
H. Photographs (1-3)
I. Report of Ken Sutton March 31, 2005
J. Paul Langevin’s Report and attachments June 15, 2005
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Defendant
1. Dr. McLellan IME Report
2. Dr. McLellan correspondence
3. John May’s Vocational Assessment
4. Vocational Rehabitation Closure Report
5. Surveillance Video and report October 3, 2005
6. Paul Langevin’s notes
7. Supervisory Knowledge Test
8. Dr. Vargas deposition transcript
9. Correspondence Howard to Langevin May 31, 2005
10. Vargas to Howard letter December 13, 2004
11. New York State Disability Examination Report September 27,2004
12. Documents from Kirbach FCE
13. VR Progress report
14. Entitlement Assesment
15. Report #1 January 27, 2004
16. Report #2 February 19, 2004
FINDINGS OF FACT:
1. At all times relevant to this action, Claimant was an employee and Newmont Slate his employer within the meaning of the Employer’s Liability and Workers’ Compensation Act (Act).
2. CNA Insurance, the carrier, was the workers’ compensation insurer for Newmont Slate at all times relevant to this action.
3. Claimant is 57 years old. He has worked in the quarry industry his entire adult life, doing hard work as a laborer and slate trimmer, work that suited him with his physical strength, limited education and below average intellectual abilities.
4. On November 5, 2003, Claimant injured his lower back in the course of his employment with Defendant.
5. Since the date of injury, except for a brief return to work, Claimant has not worked. His physical activities are limited to household chores and walking short distances. Otherwise, he sits and watches television.
Medical treatment
6. Dr. Arvin Aranda, Claimant’s primary care physician, diagnosed low back strain after the injury in November of 2003. He prescribed Vicodin, a week out of work and physical therapy.
7. By January 2004 Claimant was referred to the Vermont Orthopaedic Clinic and an MRI was performed. A disc protrusion and bulges were revealed from L3 to S-1.
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8. Next, Claimant was treated with epidural steroid injections and more physical therapy. Because he failed to receive pain relief, Claimant was referred to a neurosurgeon, Dr. Joseph Corbett. However, Dr. Corbett determined that Claimant was not a surgical candidate.
9. Claimant remained symptomatic.
10. In November 2004 Dr. Vargas placed Claimant at medical end result with a 7% whole person impairment, based on range of motion deficits.
Vocational Rehabilitation Services
11. In January 2004 Claimant was referred to Patricia Carr of Concentra Integrated Services who determined that Claimant was entitled to VR services.
12. VR services were discontinued in June 2004 based on a determination by Claimant that he was permanently and totally disabled under the odd lot doctrine.
Functional Capacity
13. Claimant was released to work with the restriction that he not lift more than ten pounds, have no prolonged sitting or standing, and no bending or twisting at the waist. Claimant tried to return to his old job with those restrictions, but worked less than a full workday.
14. Dr. Corbett expressed doubt that Claimant would ever be able to return to work.
15. Dr. Vargas opined that Claimant would not be able to perform any heavy work.
16. A formal FCE with a J-Tech system led to the conclusion that Claimant could lift 18 pounds at waist level and 13 pounds at shoulder and overhead, but that he was not able to carry weights over significant distances. Based on the FCE, the examiner, Dr. Arnold Kirbach, determined that Claimant had no functional capacity conducive to employment. He later explained further that Claimant would need to change positions frequently, would be unable to drive long distances or ride for more than 30 minutes without having back pain.
17. Dr. Robert McLellan then examined claimant at the carrier’s request. Dr. McLellan determined that pain behaviors were not consistent or reliable. On examination, he noted that Claimant’s range of motion was limited by pain. Dr. McLellan first determined that Claimant had a part-time, sedentary capacity.
18. In October 2005, Claimant helped his brother hang lights on the outside of his home, an activity that was captured on videotape. Based on an investigator’s report, Dr. McLellan modified his opinion, giving Claimant a light to moderate level work capacity.
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19. The videotape, work of a private investigator, shows Claimant lifting a flag, stringing lights around the house, bending to pick up objects, carrying yard debris, and lifting a fiberglass and aluminum ladder. None of the objects lifted were heavy. The tape did not show what Claimant was doing when he took breaks.
Vocational Opinions
20. Paul Langevin and Ken Sutton support this claim for permanent total disability benefits based on their evaluations. Mr. Sutton performed the vocational assessment. He determined that Claimant had a sixth grade math level, fifth grade level for spelling and ninth grade level for reading. He showed an interest, but little aptitude, for technical work. Mr. Sutton determined that Claimant’s temperament was not well suited for an educational setting. In sum, Mr. Sutton determined that Claimant was “vocationally limited to unskilled manual labor,” and that there are substantial barriers to his ability to return to work.
21. Mr. Langevin conducted a forensic vocational rehabilitation evaluation for the Claimant. In conducting his assessment, Mr. Langevin did not consider part-time work as regular gainful employment. In fact, Mr. Langevin did not address part-time employment in any regard in his assessment.
22. Mr. Langevin agreed that the work injury tracking forms from Vermont Orthopedic Clinic indicated that Mr. McFarren was not totally disabled but rather that he was not able at that time to return to his former occupation.
23. Mr. Langevin conceded that the likelihood of the Claimant returning to regular gainful employment if he did obtain his GED is as yet unresolved. It is not something that Mr. Langevin assessed or analyzed in his forensic report.
24. John May conducted an independent forensic vocational evaluation for the employer. Mr. May has extensive experience conducting forensic vocational rehabilitation evaluations and is certified by the American Board of Vocational Experts. Mr. May had available to him the reports prepared by Mr. Langevin and Mr. Sutton, records from Ms. Carr, and the Claimant’s medical records. Mr. May did not meet with the Claimant individually, however he felt that the reports of the three other vocational rehabilitation counselors was sufficient for him to develop his opinions.
25. Based upon Mr. May’s review of the vocational rehabilitation records, he opined that rehabilitation services had been seriously underutilized and further that the Claimant voluntarily withdrew from the vocational rehabilitation services such that the Claimant never fully engaged the process such that it can be reasonably concluded he is permanently and totally disabled from all regular gainful employment.
26. Even if Dr. Kirbach’s FCE report was a valid indicator of the Claimant’s overall work capacity, Mr. May felt that there were options available to return the Claimant to regular gainful employment.
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27. Mr. May opined that the abilities demonstrated by Mr. McFarren in the surveillance video would give him at least a light duty work capacity.
28. Further, Mr. May concluded that the Claimant’s age, experience and work history would be beneficial to him in an attempt to find regular gainful employment. With respect to his education, Mr. May testified that vocational rehabilitation exists for the very purpose of assisting people in overcoming such issues. However, given the surveillance video it appeared to Mr. May that there would be employment opportunities at his current education level.
CONCLUSIONS OF LAW:
Permanent and Total Disability
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1962).
2. Claimant alleges he is permanently totally disabled pursuant to 21 V.S.A. § 644 (b), the odd lot doctrine, defined as following in WC Rule 11.3100:
A claimant shall be permanently and totally disabled if their work injury causes a physical or mental impairment, or both, the result of which renders them unable to perform regular, gainful work. In evaluating whether or not a claimant is permanently and totally disabled, the claimant’s age, experience, training, education, occupation and mental capacity shall be considered in addition to his or her physical or mental limitations and/or pain. In all claims for permanent total disability under the Odd Lot Doctrine, a Functional Capacity Evaluation (FCE) should be performed to evaluate claimant’s physical capabilities and a vocational assessment should be conducted and should conclude that the claimant is not reasonably expected to be able to return to regular, gainful employment. A claimant shall not be permanently totally disabled if he or she is able to successfully perform regular, gainful work. Regular, gainful work shall refer to regular employment in any well-known branch of the labor market. Regular, gainful work shall not apply to work that is so limited in quality, dependability or quantity that a reasonably stable market for such work does not exist.
3. Claimant must have “no reasonable prospect for finding regular employment.” 21 V.S.A. §645. Regular and gainful work means work that is not casual or sporadic, work that is not charitable, where one earns wages. See, Rider v. Orange East Supervisory Union, et. al. Op No. 14-03 (2003). Claimant has a long history of reliable work performance. While there is conflicting testimony on his mental and social abilities, his ability to communicate, interact with others, and learn new skills, as demonstrated before this hearing officer and in his long employment, demonstrates that he could greatly benefit from vocational rehabilitation services. To date, the Claimant has not used vocational rehabilitation at all in an attempt to return to suitable employment. Without such an effort, permanent total disability benefits will not be awarded.
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4. Furthermore, the medical evidence support the defense position that he is capable of much more than that reflected in the FCE report. Section 644 does not require that one have a full time work capacity to be capable of regular gainful employment. In sum, Claimant has not proven permanent total disability.
Defense of fraud
5. Finally, Defendant alleges that Claimant misrepresented his actual physical capacity to health care provider to obtain workers’ compensation benefits.
6. The Act vests discretion in the Commissioner to require forfeiture of “all or a portion” of workers’ compensation benefits if an employee “wilfully makes a false statement or representation, for the purpose of obtaining any benefit or payment under the provisions of this chapter…” 21 V.S.A. § 708(a).
7. The defense argues “Claimant has repeatedly misrepresented his condition to his healthcare providers, the vocational rehabilitation specialists hired to pursue his claim for permanent total disability benefits, the employer’s independent medical examiner and this hearing officer.” It contends that the Claimant is not entitled to any further worker’s compensation benefits, including temporary and permanent impairment benefits and medical benefits.
8. The allegation of fraud is based on the assumption that Claimant is not in the pain he says he has. I cannot agree. With the subjectivity of pain, one’s belief that he is unable to perform certain actions, while not necessarily true, is not necessarily a false statement. The videotape provides information that helps the defense defeat this permanent total claim. But standing alone, with the limited actions seen on the tape, I do not find that Claimant willfully misrepresented his condition to obtain benefits.
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ORDER:
Therefore, based on foregoing findings of fact and conclusions of law:
• The Claim for Permanent Total Disability benefits is DENIED;
• The defense of fraud is also DENIED.
Dated at Montpelier, Vermont this 4th day of January 2007.
________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

R. C. v. Consolidated Memorials, Inc. (January 2, 2007)

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

R. C. v. Consolidated Memorials, Inc. (January 2, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
R. C. Opinion No. 54-06WC
By: Margaret A. Mangan
v. Hearing Officer
Consolidated Memorials, Inc. For: Patricia Moulton Powden
Commissioner
State File No. W-03620
Hearing held in Montpelier on September 12, 2006
Record closed on October 17, 2006
APPEARANCES:
Heidi S. Groff Esq., for the Claimant
Joseph M. Lorman Esq., for the Defendant
ISSUES:
1. Did the Claimant sustain an April 2004 work injury that caused an infection, which led to the amputation of both legs above the ankles, resulting in permanent total disability?
2. Is the Claimant entitled to thirteen weeks of temporary total disability benefits?
3. If entitled to a workers’ compensation award, may the Claimant receive a lump sum payment of benefits?
EXHIBITS:
Joint Exhibit No. I: Medical Records on CD
Claimant’s 1: C.V. of Ernest Atlas, M.D.
Defendant’s A: C.V. of Philip Carling, M.D.
FINDINGS OF FACT:
1. The Claimant was an employee within the meaning of the Vermont Workers’ Compensation Act (Act) for all relevant periods.
2. The Defendant was an employer within the meaning of the Act for all relevant time periods.
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3. By April 2004, the Claimant was working roughly sixty hours per week as the General Manager of Consolidated Memorials.
4. As General Manager, the Claimant chipped granite with a chisel and handset, used a saw, drove trucks, placed orders for materials, and performed other similar tasks.
5. The Claimant wore gloves to perform these tasks only when it was cold.
6. The Claimant always had cuts on his hands and arms from working with sharp granite.
7. On April 5, 2004, the Claimant cut and scraped his hands and arms while chipping granite with a chisel and handset. Some of these injuries bled. The Claimant was familiar with the first aid kit and used antibiotic ointment and bandages.
8. On April 9, 2004, the Claimant was performing his duties as General Manager. While at work, the Claimant suddenly became nauseated and began vomiting.
9. Later that day, the Claimant’s wife came home to find the Claimant lying on the couch, shivering and wrapped in blankets. The Claimant was vomiting with chest pain and diarrhea.
10. That evening, the Claimant’s was treated at the Central Vermont Hospital’s Emergency room, where he was diagnosed with influenza and pulled chest muscles. Upon release, the Claimant was given medication and was instructed to return if his symptoms worsened.
11. The Claimant’s symptoms continued throughout the night and into the following morning.
12. On April 10, 2004, the Claimant continued to experience nausea, vomiting, diarrhea, and chest pain. Additionally, the abrasions on the Claimant’s hands and arms began to feel very itchy. The Claimant requested that his wife scratch these abrasions.
13. Upon scratching the Claimant’s hands and arms, the Claimant’s wife noticed that a cut on the Claimant’s right pinky finger had opened and was exuding puss. She treated this wound with peroxide, triple antibiotic ointment, and a band-aid. She also noticed other scratches and abrasions on the Claimant’s hands and arms.
14. At approximately 10 PM on April 10, 2004, the Claimant was admitted to the Central Vermont Hospital because of his worrisome and persistent symptoms.
15. In the early morning hours on April 11, 2004 the Claimant’s vital signs continued dropping. As a result, he was admitted to the Intensive Care Unit and given intravenous fluids.
16. The April 11, 2004 medical records show that the Claimant had multiple sores on his hands from work related trauma. These records also note that one of the sores “had a
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pustule that was I&D’d by the wife yesterday.” The records then state that the sores appeared to be healing with no active discharge.
17. A stool sample taken that day at the Central Vermont Hospital tested positive for a few colonies of Group A Streptococcus.
18. Later that morning, the Claimant’s condition continued to worsen until he was in a state of septic shock. At this time he was transported by helicopter to Dartmouth-Hitchcock Medical Center (DMHC).
19. The Claimant became comatose as a result of his severe illness.
20. Also on April 11, 2004, a DMHC CT scan found that the Claimant’s terminal ileum, cecum, and ascending colon were moderately thick-walled. The differential diagnosis of this condition included “typhilitis, Crohn’s disease, lymphoma, infectious etiology such as Giardia; ischemia less likely without supporting clinical evidence such as acidemia.”
21. On April 12, 2004, a paronychia, infection in the tissue surrounding the nail bed, on the Claimant’s right thumb tested positive for Group A Streptococcus.
22. By April 13, 2004, the Group A Streptococcus was found in the Claimant’s bloodstream and urine.
23. DHMC repeatedly tested the Claimant’s stool for the presence of white blood cells. These tests were all negative.
24. The doctors at DHMC found inflamed and necrotic tissue along the Claimant’s left chest wall.
25. As a result of complications from the septic shock, the Claimant’s lower extremities became gangrenous. This condition led to bilateral, below the knee amputations of the Claimant’s legs.
26. Beginning on April 12, 2004, the Claimant was out of work for a total of thirteen weeks as a result of this experience.
27. On July 12, 2004, the Claimant returned to work as a General Manager at Consolidated Memorials.
28. The Claimant is requesting TTD compensation for the recovery period from April 12, 2004 through July 11, 2004.
29. The Claimant is requesting attorney fees and costs. Claimant’s Counsel has a 25% Fee Agreement with the Claimant and an approved Attorney Lien. The Claimant has included an itemized list of litigation costs totaling $5,762.54.
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Medical Testimony
Ernest Atlas, M.D.
30. Dr. Atlas is an expert in infectious diseases and has been practicing for over thirty years. He regularly consults in infectious disease cases and has personally treated over a dozen cases involving Group A Streptococcus.
31. After reviewing the Claimant’s medical records, the Claimant’s wife’s deposition testimony, and interviewing the Claimant’s wife, Dr. Atlas opined that the Group A Streptococcus entered the Claimant’s body via the work related cuts and abrasions.
32. From there, Dr. Atlas believes that the bacteria spread through the Claimant’s bloodstream to the deep tissue of the left chest wall, where it produced a necrotizing fasciitis and septic shock. This condition caused blood clotting in the small vessels of the Claimant’s legs and gangrene. The septic shock also resulted in decreased blood flow and the need for vasoconstrictor medications. As a result of these factors, below the knee amputations of the Claimant’s legs were required.
33. Dr. Atlas explained that a superficial scratch or abrasion is likely to heal quickly once pus is exuded, even if this was the initial source of the Group A Streptococcus infection.
34. Dr. Atlas stated that the vast majority of Group A Streptococcus infections originate from breaks in the skin. He also stated that once this infection enters the bloodstream, the bacteria can circulate throughout the body.
35. While not impossible, in over thirty years of infectious disease practice Dr. Atlas had never seen, read about, or heard of Group A Streptococcus entering the body through the bowel.
36. Dr. Atlas opined that if this type of infection were to begin in the bowel then the stool would have had heavy growth of Group A Streptococcus and a high white blood cell count.
Philip C. Carling, M.D.
37. Dr. Carling has specialized in infectious disease medicine for over thirty years. However, he does not have first hand experience treating patients with Group A Streptococcus resulting in necrotizing fasciitis.
38. After reviewing the Claimant’s complete medical records, witness depositions, and medical reports, Dr. Carling opined that the work related scratches and abrasions were not the most likely source of the Group A Streptococcus.
39. Rather, Dr. Carling believed that the primary infection developed in the Claimant’s terminal ileum and ascending colon. This infection led to overwhelming streptococcal sepsis, organ failure, and the need for a bilateral leg amputation.
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40. Dr. Carling believed that the presence of a “few” colonies of Group A Strep showed that the bowel was the primary site of the infection.
41. Dr. Carling opined that the Claimant’s right thumb tested positive for Group A Streptococcus because the thumb came in contact with infected stool.
42. Dr. Carling agreed that gastrointestinal symptoms can be a result of the sepsis, no matter where the source of the infection is.
43. Dr. Carling could not recall any examples of cases, or any literature where Group A Streptococcus entered the body via the bowel.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1962). The claimant must establish by sufficient credible evidence the character and extent of the injury and disability as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984).
2. To qualify for workers’ compensation benefits, the personal injury must arise out of and in the course of employment. See 21 V.S.A. § 618 (a)(1).
3. In Vermont, a worker who is injured at work may collect temporary disability benefits depending upon his actual capacity to work during the period that he is healing, until such time as he or she reaches maximum medical improvement. Hepburn v. Concrete Professionals, Inc./Traveler’s Insurance Co., Opinion No. 16-03WC (2003).; 21 V.S.A § 642.
4. A Claimant is entitled to temporary total disability benefits under 21 V.S.A. § 642, while either: (1) in the healing period and not yet at a maximum medical improvement, Orvis v. Hutchins, 123 Vt. 18 (1962), or (2) unable as a result of the injury either to resume the former occupation or to procure remunerative employment at a different occupation suited to the impaired capacity. Roller v. Warren, 98 Vt. 514 (1925); Votra v. Mack Molding, Inc. Opinion No. 44-02WC (2002).
5. Under 21 V.S.A. § 644(a)(2), a Claimant is entitled to at least 330 weeks of permanent total disability if the work related injury causes the loss of both feet at or above the ankle.
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6. There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the inference from the facts proved must be the more probable hypothesis. Burton Holden & Martin Lumber Co., 112 Vt. 17 1941. Where the causal connection between an accident and an injury is obscure, and a layperson would have no well-grounded opinion as to causation, expert medical testimony is necessary. J.G. v. Eden Park Nursing Home, Opinion No. 52-05WC (2005) (citing Lapan v. Berno’s Inc., 137 Vt. 393 (1979)).
7. When qualified medical expert opinions are in conflict, this Department has traditionally examined the following criteria: 1) the length of time the physician has provided care to the claimant; 2) the physician’s qualifications, including the degree of professional training and experience; 3) the objective support for the opinion; and 4) the comprehensiveness of the respective examinations, including whether the expert had all the relevant records. J.C. v. Richburg Builders. Opinion No. 37-06WC (2006). (citing Miller v. Cornwall Orchards, Opinion No. 20-97WC (1997); Gardner v. Grand Union, Opinion No. 24-97WC (1997)).
8. The medical experts in this case were both highly qualified infectious disease experts. Neither physician provided treatment to the Claimant. Rather, both doctors relied on the Claimant’s medical records, depositions, and their own extensive training and experience when rendering their expert medical opinions. As a result, the fact that Dr. Atlas has personal experience in treating patients with similar Group A Streptococcal infections lends greater weight to his opinion.
9. Dr. Atlas testified that Group A Streptococcal bacteria most often enters the body via a break in the skin. The Claimant had multiple work related cuts and abrasions on his arms and hands at the onset of his illness. The Claimant’s medical records document signs of infection on two of these wounds, one testing positive for the infectious bacterium.
10. By contrast, neither expert could recall any case they had ever worked on, read about, or even heard of where the bowel was the point of origin for a Group A Strep infection. Furthermore, while a CT scan showed moderate thickening of the bowel wall, none of the DMHC physicians connected this finding with the Claimant’s sepsis or took further action.
11. Furthermore, Dr. Atlas stated that if the bowel were the primary infection site then the Claimant’s stool would have been teeming with white blood cells and bacterial colonies. Instead, white blood cells were absent each time the Claimant’s stool was tested. Rather than finding a heavy concentration of bacterial colonies, the stool contained only a few colonies that were likely deposited via the Claimant’s bloodstream.
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12. Hence, the April 2004 work related injuries sustained by the Claimant caused the above infection and complications leading to a bilateral leg amputation. This is a scheduled injury under 21 V.S.A. § 644(a)(2); therefore, the Claimant is entitled to at least 330 weeks of permanent total disability.
13. Furthermore, from April 12, 2004 through July 11, 2004, the Claimant was recovering from complications resulting from his work related injury, unable to work and had not yet reached medical end result. As such, the Claimant is also entitled to TTD benefits for this thirteen-week period.
14. Based on 21 V.S.A. § 678(a) and Rule 10, Claimant is awarded Attorney fees of 20% of the total award or $9,000, whichever is less.
Lump Sum Payment
15. In 2000, the legislature amended 21 V.S.A. § 652(b) to permit a Claimant to request an award payment in one lump sum. Sanz v. Douglas Collins Const., ¶ 6, 2006 Vt. 102. The Commissioner will grant this request if it is in the best interest of the Claimant or his family. Id.
16. The Department considers the following factors when determining whether a lump sum payment is in the best interest of a claimant. The claimant and/or the claimant’s household receives a regular source of income aside from any workers’ compensation benefit, the lump sum payment is intended to hasten or improve claimant’s prospects of returning to gainful employment or the lump sum payment is intended to hasten or improve claimant’s recovery or rehabilitation; the claimant presents other evidence that the lump sum award is in their best interests. Patch v. H.P. Cummings Const., Opinion No. 49-02WC (2002); Rule 19.5000.
17. A lump sum payment will not be awarded if: the award was based upon a hearing decision for which an appeal has been filed and the employer or insurer objects to the payment of the lump sum; or the claimant is best served by receipt of periodic income benefits; or the payment is intended to pay everyday living expenses; or the lump sum payment is intended to pay past debts. Id.
18. In the present case, this Claimant has returned to work, earning regular income outside of any workers’ compensation award. Therefore, the Claimant need not rely on the periodic payment of benefits for everyday expenses. As such, the Department recognizes that a lump sum award is in the best interest of this Claimant.
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ORDER:
THEREFORE, based on the above Findings of Fact and Conclusions of Law, the Claimant’s claim is compensible and the Defendant is ORDERED to pay:
1. Related Medical Benefits;
2. TTD benefits from April 12, 2004 through July 11, 2004;
3. A lump sum payment of PTD, pursuant to 21 V.S.A. § 644(a)(2), for at least 330 weeks;
4. Statutory interest from the date the ordered benefits should have been paid had this case been accepted, pursuant to 21 V.S.A. §664;
5. Attorney fees of 20% of the total award or $9,000, whichever is less.
Dated at Montpelier, Vermont this ____ day of December 2006.
___________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

A. C. v. The Golub Corporation (January 23, 2007)

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

A. C. v. The Golub Corporation (January 23, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
A. C. Opinion No. 03-07WC
By: Margaret A. Mangan
v. Hearing Officer
The Golub Corporation For: Patricia Moulton Powden
Commissioner
State File No. R-13259
Hearing held in Montpelier on December 5, 6 and 7, 2006
Record closed on December 29, 2006
APPEARANCES:
Dennis O. Shillen, Esq., for the Claimant
Keith J. Kasper, Esq., and David Berman, Esq., for the Defendant
ISSUES:
Is Claimant permanently and totally disabled as a result of her work-related injury or injuries?
Is a hot tub a compensable medical expense pursuant to the Vermont Workers’ Compensation Act and the Department’s Rules?
EXHIBITS:
Joint I: Medical Records
Claimant’s 1: Chapter 7 from AMA Guides re: Independent Medical Examination Claimant’s 2: DSM IV PTSD
FINDINGS OF FACT:
1. Claimant is a 45 years old intelligent woman who completed 11 ½ years of school. She worked her adult life in the meat business, first in a family business and later at Price Chopper.
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2. On November 8, 2000, Claimant injured her back while working as a meat cutter at Price Chopper, a job she had for eight years. She had emergency surgery on November 16, 2000 and later numerous other surgical and medical interventions for herniated discs and cauda equina syndrome. The compensability of hospitalizations and acupuncture treatment was the subject of a 2004 hearing decision in the Claimant’s favor. Opinion No. 34-04WC.
3. Claimant’s current claim for permanent total disability benefits is based on a combination of physical and psychological problems.
4. Claimant’s current treatment includes acupuncture twice a week and medical massage two or three days a week as well as a host of medications.
Physical Condition
5. Joseph Corbett, M.D. is a licensed medical physician specializing in neurosurgery and practicing in Rutland. He first treated Claimant immediately following her work-related injury in November of 2000. Her initial complaints related to Claimant’s lower back. An MRI revealed a disc herniation at L4-5 with compression of nerve roots on the left side and centrally.
6. One problem that resulted from her injury was cauda equina syndrome, caused by compression of nerves in the lower spine. Symptoms of cauda equina syndrome Claimant has had are numbness in the perineum; bowel and bladder problems, and foot drop.
7. Despite Claimant’s insistence that cauda equina persists, I am not convinced, based on recent medical records and opinions that she has no more than partial perineal numbness as a residual effect.
8. Claimant alleges that her psychological condition is disabling, yet she exhibited phenomenal attention to detail in her testimony and in the responsibilities inherent in her everyday life.
9. Dr. Bucksbaum is board certified in physical medicine and rehabilitation, and certified as an independent medical examiner. He became acquainted with Claimant in March of 2002 for an evaluation of her back pain. Dr. Bucksbaum came to the treat Claimant at the suggestion of Ms. Curran.
10. Mark Bucksbaum, M.D., a treating physician, expects and recommends that Claimant will have the most recently recommended back surgery, a procedure that Claimant understandably has refused to have, given the numerous procedures she has had.
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11. Dr. Bucksbaum opined that Claimant was at medical end result as to her physical condition, and that he felt she reached that point in 2004. Dr. Bucksbaum also opined that Claimant will have a future surgery. He has encouraged Claimant to have a fusion surgery in Boston with an “elite team” of doctors, and that such a surgery could stabilize the region in her back. If Claimant does not elect to have the fusion surgery, Dr. Bucksbaum opines that Claimant would be susceptible to an incident which would lead to an emergency situation, and that in that type of situation the surgical team might not be as experienced. Dr. Banco, who is part of the team that Dr. Bucksbaum encourages Claimant to go to for the fusion surgery, has opined that the surgery would improve Claimant’s functioning and allow her to return to work.
12. Based on Claimant’s current condition, Dr. Bucksbaum determined that she has a 53% whole person impairment for her physical problems, without considering the psychological sequelae.
13. Dr. Bucksbaum found that Claimant’s foot drop has improved since 2004, which is when he stated that Claimant reached medical end result for her physical condition.
14. Dr. Bucksbaum determined that Claimant is unable to return to reliable, uninterrupted, vocationally relevant work. He based that opinion on Claimant’s chronic pain, bowel and bladder problems, need for narcotics, carpal tunnel syndrome, loss of concentration, safety concerns, and diminished persistence and patience.
15. Dr. William Boucher’s primary area of specialty is occupational medicine, and he is board certified. He evaluated Claimant on two occasions, in 2004 and 2006.
16. In 2006, Dr. Boucher considered Claimant to have a part-time sedentary work capacity. He stated that this meant she was capable of working four hours per day during a five-day week.
17. Dr. Boucher also stated that Claimant’s depression, which he considers to be her primary psychological problem, was only partially treated and that Claimant was not at medical end result regarding her psychological condition. Dr. Grubman concurred with Dr. Boucher for more aggressive treatment for Claimant’s depression. With such treatment, Dr. Boucher opined that Claimant’s functional abilities could also improve, as the depression plays a large role on those abilities.
18. Dr. Boucher questioned the results of the functional capacity evaluations because of Claimant’s depression and her tendency to self-limit. She likely never gave full effort.
19. Dr. Boucher opined that Claimant’s cauda equina had resolved and that he did not feel Claimant had any clinical findings consistent with ongoing cauda equina at this point. As to Claimant’s bladder incontinence, Dr. Boucher stated that she may have some stress incontinence, and that Claimant’s bowel problem was more likely constipation from her numerous medications rather than bowel incontinence from cauda equina syndrome.
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Claimant’s Psychological Condition
20. Sandy Lasky, MSW, diplomat of the American Psychotherapy Association, is a licensed clinical social worker and certified in clinical social work. She has provided supportive counseling to Claimant since May of 2001 for anxiety and depression. Claimant has seen Ms Lasky weekly for five years.
21. Ms. Lansky determined that Claimant has a low tolerance for any kind for physical or mental activity.
22. Ms. Lasky diagnosed Claimant with post-traumatic stress disorder based on Claimant’s symptoms, including shortness of breath, chest pain, sweating, dizziness, difficulty breathing, because these indicated a general sense of panic.
23. Ms. Lasky does not conduct her own psychological testing, but refers such testing out to other professionals. In this case, she relied on testing done by Dr. Mann and Dr. Grubman. Ms. Lasky’s diagnosis was rejected by Dr. Grubman, an expert with a Masters Degree in Pharmacology from the University of Michigan and a PhD from the University of Vermont. Dr. Grubman did his own testing on Claimant, and ruled out post-traumatic stress disorder for several reasons.
24. To have PTSD, Claimant would have had to witness, experience, or be confronted with actual death or injury to herself or others, and that Claimant must have experienced intense fear or horror during the event. This claimant did not have such an experience.
25. Claimant has not missed many appointments over her five years of treatment with Ms. Lasky. Claimant follows through on suggestions, understands and participates in her treatment. Despite these noted abilities of Claimant, Ms. Lasky’s opinion is that Claimant does not have the ability to return to work solely from a psychological perspective, based primarily on her inability to concentrate.
26. Dr. James Grubman specializes in clinical and behavioral medicine relating to treatment of people with a variety of medical and health disorders, including chronic pain management and disability. He has worked in the field of neuropsychology, involving work with people with brain injuries, dementia, and other developmental and acquired brain disorders. He also focuses on pain management.
27. Dr. Grubman evaluated Claimant on two occasions and issued three reports in this case. Dr. Grubman administered the Minnesota Multiphasic Personality Inventory II (MMPI II) test as well as the Millon Behavioral Medicine Diagnostic (MBMD) test. Tests look at Claimant’s personality and emotional functioning. When Dr. Grubman began showing Claimant a variety of the tests he wanted her to do, she balked at the process because she disagreed with the relevance of the testing.
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28. At the time Dr. Grubman evaluated her, Claimant was physically able to sit and do the testing that took approximately three hours. She was able to understand his questions and respond appropriately during the interview portion. Claimant worked consistently on the testing, and declined several offers for breaks and water. Claimant reported to Dr. Grubman that her pain was manageable and that nothing about the testing was problematic or dangerous to her.
29. Claimant showed tremendous somatization on the clinical scales in the MMPI testing, which still indicated that the profile was valid. As far as diagnostic criteria, Dr. Grubman focused on Claimant’s psychological diagnoses. She qualified for diagnoses of major depression, major depressive disorder, pain disorder with psychological and medical factors, and for a diagnosis of dependence on narcotics.
30. Dr. Grubman ruled out the diagnosis of post-traumatic stress disorder, a conclusion I accept.
31. Dr. Grubman found that Claimant had personality disorder features in a general mixed or other category, and primarily histrionic features as well. Based on his testing, Dr. Grubman opined that Claimant has a variety of difficulties in relation to her personality and how she approaches problems that she has. These conditions predated her work injury. He based this opinion on the information from her behavior and assessment in the chronic pain program she was in with Dr. Mann in 2001.
32. Dr. Grubman’s diagnosis of histrionic features relates to internal mental processes, not overt behaviors. It means that one is not accepting responsibility, but is looking to external factors to fix things. Such a diagnosis does not necessarily lead to melodramatic or hysterical behavior in a person, qualities that many lay persons may equate with the term. Further, Dr. Grubman noted that Claimant exhibited symptom magnification on testing.
33. Based on Claimant’s progress to date, Dr. Grubman concluded that Claimant needed a therapy with a different approach than what Claimant has been receiving. He recommended tapering Ms. Lasky’s treatment and advised that Claimant should treat with a clinician with expertise in the features that to date have been recalcitrant to treatment.
34. Claimant is not at medical end result with regard to her psychological condition. According to credible expert testimony, Claimant’s psychological condition has not reached a substantial plateau, and further improvement could be expected with more aggressive treatment.
35. Dr. Grubman concluded that he could not establish a connection between Claimant’ work injury and her psychological issues. This was based on her personality disorder features, her prior history of depression, which can have a set of recurrences, and a significant overlay of Claimant’s narcotic dependence. Dr. Grubman opined that none of Claimant’s disorders were of sufficient severity that they would preclude her from having at least part-time employment.
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36. Dr. Grubman suggested a dual diagnosis chronic pain program, where experts could work with Claimant to look at her general medical treatment regimen, including a consideration of her medications, and could potentially work with her using behavioral techniques to reduce the sedation medications. Dr. Grubman testified that Ms. Lasky was not effectively working with Claimant in this manner.
37. The convincing evidence is that Claimant can concentrate her protestations to the contrary notwithstanding.
38. Ms. Lasky defined success of her treatment in this case as Claimant’s not using the hospital emergency room as often as she would have without the counseling. More definable improvement in Claimant’s condition would have to be established before I can find that she reached medical end result for her psychological condition.
39. Dr. Bucksbaum does not believe that Claimant had reached medical end result for her psychological condition as of March of 2004.
40. Dr. Grubman opined that Claimant’s condition could improve with better psychological treatment, and questioned Ms. Lasky’s treatment. Thus, based on the testimony at the formal hearing, Claimant is not at medical end result for her psychological condition.
41. Dr. Boucher disagreed with Ms. Lasky’s diagnosis of post-traumatic stress disorder. He stated that Claimant has never mentioned nightmares involving her injury, or any flashbacks. Dr. Bucksbaum, Claimant’s own treating professional, also did not diagnose Claimant with post-traumatic stress disorder.
42. A finding that she is permanently and totally disabled is inappropriate where there are still significant opportunities to improve Claimant’s condition.
Vocational Rehabilitation
43. Greg LeRoy is a rehabilitation counselor, and provided a vocational rehabilitation assessment for Claimant. Mr. LeRoy acknowledged that where appropriate based on a person’s condition, a self-employment plan is a viable option. However, Mr. LeRoy did not consider or pursue this avenue for Claimant. In fact, he determined that no further VR services are warranted in this case because of Claimant’s disability.
44. Contrarily, Ms. Fran Plaisted, a certified vocational rehabilitation counselor, supports further vocational testing. Based on evidence of Claimant’s cognitive abilities, she determined that Ms. Lasky’s attempt to prevent such testing based on Claimant’s inability to concentrate is illogical.
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45. Mr. LeRoy relied on other medical experts as to Claimant’s physical and psychological capabilities. He focused, as a vocational rehabilitation counselor, on a Claimant’s temperament. Thus, he stated that if there is evidence someone does not have the temperament to do a job, he must determine whether a person can still do the job.
46. Ms. Plaisted encourages further vocational programs for Claimant in an attempt to get her a GED and computer training courses.
47. Mr. LeRoy met with Claimant once. Claimant was able to complete the requisite paperwork and to stay focused during the interview.
48. Mr. LeRoy completed a transferable skills analysis, breaking down Claimant’s work history into traits involved in doing her work. He stated that he attempted to transfer the skills Claimant obtained as a meat cutter to other jobs. He also stated that Claimant would need additional training to return to other types of work beyond unskilled jobs.
49. Dr. Bucksbaum had noted carpal tunnel syndrome in his records. However, the first notation of carpal tunnel syndrome as a limiting factor regarding Claimant’s vocational rehabilitation efforts was made after Ms. Plaisted encouraged Claimant to pursue computer classes. Even assuming the validity of Dr. Bucksbaum’s reliance on carpal tunnel syndrome as a limiting factor, he conceded that there are options to work around the condition and still work on a computer, such as a voice recognition program.
50. Mr. LeRoy considered the possibility of Claimant looking into training for computer skills, but rejected that direction after reviewing records that suggested Claimant has carpal tunnel syndrome (CTS). Mr. LeRoy stated that based on the reports of Dr. Bucksbaum and Ms. Lasky, he is not in favor of Claimant pursuing such computer training.
51. Indeed the medical records are devoid of any mention of CTS until after the suggestion of computer training by Ms. Plaisted.
52. Tammy Parker works as a vocational rehabilitation counselor, and does entitlement assessments to determine if people are eligible for services and to help them get back to work.
53. Ms. Parker testified that in 2003 she had been working on setting up Claimant in a business involving internet sales of antiques, an area of interest for Claimant. Such a position would have required Claimant to use a computer. Ms. Parker did not recall any complaints by Claimant as to her physical abilities to use a computer at the time, nor could she recall any complaints as to her cognitive abilities. At the time she was considering computer work for Claimant. Ms Parker did not have an FCE, and did not feel that it was necessary.
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54. Ms. Parker closed vocational rehabilitation on July 26, 2004, and that she entered the code “07 – Disability Too Severe.” See Vocational Rehabilitation Discontinuance Report, dated 7/26/04. Ms. Parker conceded that at the time of the closure, she was not concluding that Claimant was permanently and totally disabled, and that she did not want to close the door permanently on Claimant. She based the closure on medical reports available at that time.
55. When Ms. Parker met with Claimant, they generally met out in public. Claimant arrived alone and was able to get to the meetings without a problem.
56. Dr. Corbett defers to other experts with regard to a claimant’s ability to return to work. He is not a vocational expert. However, in 2002, he opined that Claimant had a work capacity for a sedentary position in response to questioning proposed by Ms. Parker.
57. Karen Curran is a telephonic case manager who was assigned to facilitate Claimant’s rehabilitation process through contact with Claimant, her vocational rehabilitation counselors, and her doctors.
58. Ms. Curran opined that Claimant could not maintain gainful employment based on her mental and physical restrictions. However, she acknowledged that in her deposition she had testified that she could not offer an opinion as to whether Claimant was permanently and totally disabled. Ms. Curran acknowledged that she had not seen Claimant between May of 2006, the time of her deposition, and the formal hearing, and that nothing had occurred to change her opinion as to the ultimate issue of whether Claimant was permanently and totally disabled.
59. Ms. Curran has not seen the Claimant in years; she has merely served as the telephonic case manager. Through this work, Ms. Curran believes that Claimant has understood treatment recommendations and has coordinated her care by herself. She also stated that Claimant drives to her own medical appointments most of the time, and that includes several appointments every week.
60. A January 23, 2004 functional capacity evaluation (FCE) by Ginni Reeves concluded that Claimant might be able to work four hours a day at a sedentary level. In 2006, she concluded that Claimant did not have a part time work capacity because she could not sit long enough to keep a sedentary job.
61. Ms. Plaisted met with Claimant in October of 2005. Her desire to continue vocational rehabilitation would focus on home-based self-employment as one option.
62. After Claimant had decided not to undergo the fusion surgery with Dr. Banco, Ms. Plaisted developed an Individual Written Rehabilitation Plan (IWRP) because Claimant had not obtained a GED or high school diploma, and that this was essential for Claimant to obtain if she were to return to work.
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63. Once she had received an FCE indicating that Claimant had a less than sedentary work capacity, she drafted another IWRP looking into options for Claimant as a buyer, or other types of home-based employment.
64. Ms. Plaisted has not closed out vocational rehabilitation for Claimant. She would like to follow up with Dr. Bucksbaum to look into accommodations, particularly with regard to typing. While Dr. Bucksbaum was quick to simply dismiss the keyboarding options such as voice activation, Ms. Plaisted would like to fully explore the options.
65. Ms. Plaisted considered the alleged bowel and bladder problems in stating that home-based employment would provide Claimant with the flexibility that she needs. Ms. Plaisted testified that she disagrees with Mr. LeRoy’s criticisms of the potential for home-based employment, and that there are options available to be researched and considered.
66. This demonstrates Ms. Plaisted’s work as a certified vocational rehabilitation counselor to thoroughly consider all of the options for returning a person to work, including a proper consideration of the Claimant’s abilities.
67. Further vocational rehabilitation efforts would benefit Claimant if they do not result in a job. Ms. Plaisted explained her role to work with disabled individuals to help them maximize their potential and to provide them with interests and activities to lead as fulfilling a life as possible.
68. Ms. Plaisted could not give an opinion as to whether Claimant can secure gainful employment at this time. Her reasoning was that she has not worked enough with Claimant nor pursued several options. Ms. Plaisted is not simply ready to dismiss several options that exist for Claimant in order to conclude on an incomplete record that Claimant can not obtain this type of employment.
69. Dr. Corbett defers to other experts with regard to a claimant’s ability to return to work. He is not a vocational expert. However, in 2002, he opined that Claimant had a work capacity for a sedentary position in response to questioning proposed by Ms. Parker.
Hot tub
70. With regard to the hot tub issue, Dr. Bucksbaum stated that an indoor tub, or at least a tub within an enclosure, would be preferable for Claimant. The burden of proof is on Claimant to establish the reasonableness of the installation of the hot tub. 21 V.S.A. § 640(a).
71. Dr. Boucher opined that a hot tub could have a temporary psychological benefit, but that it would not affect Claimant’s physical condition one way or the other. He opined that it would not improve Claimant’s baseline pain or functioning, and would be of no value as a medical treatment. Rather, the most effective treatment, according to Dr. Boucher, would be more aggressive treatment of Claimant’s depression.
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72. Claimant determined that a pool or hot tub in a public place is not an option for her because of her bowel and bladder issues.
73. The unlikelihood that a hot tub would provide more that temporary relief together with the psychological testing in this case and Department precedent, lead me to conclude that Claimant has not met her burden of proving the reasonableness of the treatment.
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); Goodwin v. Fairbanks, Morse & Co., 123 Vt. 161, 166 (1962).
2. There must be created in the mind of the trier of fact something more than 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).
3. Where the claimant’s injury is obscure, and the layman could have no well grounded opinion as to its nature or extent, expert testimony is the sole means of laying a foundation for an award for both compensability issues as well as the extent of the award sought. Lapan v. Berno’s, Inc., 137 Vt. 393 (1979).
4. Expert medical testimony is required to make the causal connection between employment, an injury and the resulting benefits sought. Martin v. Woodridge, Op. No. 11-97WC (1997); Cushing v. Just Good Builders, Op. No. 68-96WC (1996). A party who bears the burden of proof cannot meet that burden without providing such evidence, and possibility, suspicion or surmise are insufficient to carry that burden. Id.
Permanent Total Disability
5. Claimant bears the burden of proof in showing that she is permanently and totally disabled from any and all regular gainful employment. See Ratta-Roberts v. Benchmark Assisted Living, Op. No. 46-05WC (2005).
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6. Claimant seeks permanent total disability benefits pursuant to 21 V.S.A. § 644(b) which was amended in 1999 and became effective July 1, 2000. Claimant’s work-related injury occurred on November 8, 2000. The amendment codifies the Odd-Lot Doctrine, which is stated in Workers’ Compensation Rule 11.3100:
• A claimant shall be permanently and totally disabled if their work injury causes a physical or mental impairment, or both, the result of which renders them unable to perform regular, gainful work. In evaluating whether or not a claimant is permanently and totally disabled, the claimant’s age, experience, training, education, occupation and mental capacity shall be considered in addition to his or her physical or mental limitations and/or pain. In all claims for permanent total disability under the Odd Lot Doctrine, a Functional Capacity Evaluation (FCE) should be performed to evaluate claimant’s physical capabilities and a vocational assessment should be conducted and should conclude that the claimant is not reasonably expected to be able to return to regular, gainful employment.
• A claimant shall not be permanently totally disabled if he or she is able to successfully perform regular, gainful work. Regular, gainful work shall refer to regular employment in any well-known branch of the labor market. Regular, gainful work shall not apply to work that is so limited in quality, dependability or quantity that a reasonably stable market for such work does not exist.
7. The standard for succeeding in a permanent total disability claim is further articulated in 21 V.S.A. § 645(a), which states that one must have “no reasonable prospect of finding regular employment.” Regular employment means work that is not casual and sporadic, whereby the hiring is not charitable and the person earns wages. Rider v. Orange East Supervisory Union, et. al. Opinion No. 14-03WC (2003).
8. Much of the testimony in support of this claim was based on the belief that Claimant could not longer cut meat, work she was doing at the time of her work related injury. However, her inability to return to her prior type of employment is irrelevant to the issue of whether she is permanently and totally disabled. Instead, the relevant inquiry is whether Claimant’s physical and mental impairments foreclose her from being gainfully employed in any type of occupation.
9. It is Claimant’s burden to prove that she is incapable of any and all regular gainful employment. The test is quite simple; the injured employee must have no reasonable prospect of obtaining regular, gainful employment. See Fleury v. Kessel/Duff Constr. Co., 148 Vt. 415 (1987).
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10. Dr. Boucher and Dr. Grubman opined that Claimant does have a work capacity. Dr. Boucher stated that he felt Claimant was capable of working four hours per day during a five-day week. Even assuming Claimant could not return to work on a full-time basis, her lack of full-time work capacity is not determinative of permanent total disability. See Arnold v. Central Vermont Hospital, Op. No. 20-06WC (2006) (“Section 644 does not require that one have a full time work capacity to be capable of regular gainful employment.”).
11. There are contradictory expert opinions as to whether Claimant has a work capacity, particularly concerning her psychological issues. Ms. Lasky opined that Claimant does not have a work capacity for regular gainful employment. However, Ms. Lasky’s opinion loses persuasiveness when considering that her diagnosis of post-traumatic stress disorder is inconsistent with the medical record and has not been corroborated by any other expert opinion. Further, Dr. Grubman stated explicitly that the factors considered by Ms. Lasky in diagnosing post-traumatic stress disorder, including shortness of breath and chest pain, are insufficient for such a diagnosis. Dr. Grubman is highly qualified to render opinions as to Claimant’s psychological conditions, and demonstrated a clear and thorough analysis based on his examination and review of the medical records. See Geiger v. Hawk Mountain Inn, Op. No. 37-03WC (2003) (discussing factors considered by Department in evaluating and choosing between conflicting medical opinions).
12. Claimant also cannot be considered to be at PTD, because she is not yet at medical end result. In order for a condition to be considered permanent, one must be at medical end result. In order to qualify for permanent total disability, a Claimant’s condition must be permanent. In order for the medical condition to be permanent, the Claimant must be at medical end result. Therefore, in order to satisfy the determination of permanent total disability, one must be at medical end result. Therefore, Claimant cannot satisfy the criteria of permanent total disability in this matter as she has not achieved medical end result.
Medical End Result
13. Medical end result means the point at which one has reached a “substantial plateau in the medical recovery process, such that significant further improvement is not expected, regardless of treatment.” WC Rule 2.1200.
14. Claimant has alleged that she is permanently and totally disabled based on her psychological and physical injuries and conditions. The evidence demonstrates that Claimant is not at medical end result for either her psychological condition or her physical condition, thereby barring this PTD claim.
15. Dr. Boucher and Dr. Grubman both opined that Claimant was not at medical end result with regard to her psychological condition. Depression, her primary psychological problem, has only been partially treated. More aggressive treatment will likely improve her depression and her functional abilities.
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16. Dr. Bucksbaum opined that Claimant was at medical end result with regard to her physical condition, an opinion that is supported by the record in this case and Department precedent. See Bertrand v. McKernon Group, Opinion No. 20-03WC (2003), even though Claimant may have the recommended fusion surgery in the future.
17. Based on Dr. Banco’s opinion, should Claimant opt for the surgery, her functioning should improve even further. More aggressive treatment for Claimant’s depression might also provide beneficial effects to Claimant’s functional abilities as a whole.
Vocational Rehabilitation
18. Vocational rehabilitation benefits are available when a work injury prevents an employee from performing work for which she had previous training and experience. See Wentworth v. Crawford and Company, 174 Vt. 118 (2002). The purpose of such benefits is “to restore the employee to suitable employment.” Id. at 354, citing 21 V.S.A. § 641(b). The statute does not “impose a duty on the employer or its insurer to develop a rehabilitation plan for [an injured employee],” but, rather, it “contemplates that the parties will cooperate in the development and implementation of the plan.” Wroten v. Lamphere, 147 Vt. 606, 612 (1987).
19. Claimant cannot establish that she is totally disabled for gainful employment, particularly where vocational rehabilitation has not been exhausted.
20. Ms. Plaisted is a certified vocational rehabilitation counselor who drafted an IWRP which planned to work toward Claimant’s obtaining a GED or high school diploma. Ms. Plaisted also encouraged a pursuit of home-based employment options, including the use of computers as was initially developed by Ms. Parker. Ms. Parker had testified that at the time she was developing her IWRP for home-based employment for Claimant, that Claimant did not have any complaints as to either her physical or cognitive abilities.
21. Ms. Plaisted’s pursuit of further vocational rehabilitation was quashed by the suggestion Claimant had carpal tunnel syndrome that limited her vocational rehabilitation after Ms. Plaisted had suggested computer work. Ms. Plaisted seeks to consider certain accommodations, particularly with regard to typing, including voice-activation, which to date have been rejected.
22. Ms. Plaisted opined that vocational rehabilitation efforts should not be closed. She advocates the pursuit of accommodations based on Claimant’s condition and full vocational testing. Ms. Plaisted also considered Claimant’s alleged bowel and bladder problems in considering options for home-based employment. Mr. LeRoy simply criticized the potential for home-based employment rather than pursuing a plan to fully explore certain options.
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Hot Tub
23. Palliative care is compensable under the Act even after a claimant has reached medical end result if it is reasonable and necessary and causally related to the work-related injury. 21 V.S.A. § 640(a); Coburn v. Frank Dodge & Sons, 165 Vt. 529, 532 (1996); Whetstone Log Homes, Opinion No.: 70-96WC (1986).
24. “In determining what is reasonable under § 640(a), the decisive factor is not what the claimant desires or what she believes to be the most helpful. Rather, it is what is shown by competent expert evidence to be reasonable to relieve the claimant’s back symptoms and maintain her functional abilities.” Quinn v. Emery Worldwide, Opinion No. 29-00WC (2000).
25. Claimant seeks, and Defendant denies, a hot tub for her home to ease the discomfort from her work related injury. Claimant rejects as impractical the suggestion that she use a hot tub in a public place because of her bowel problems.
26. The Department has denied coverage for hot tub therapy based on the opinion of a doctor who performed an IME on a claimant and stated that the relaxation of the muscle from a hot tub could only provide symptomatic relief, and would not treat Claimant’s underlying conditions. See Pickering v. Brattleboro Memorial Hospital, Opinion No. 12-96WC (1986) (hot tub no better than a bath).
27. In this case, Dr. Boucher opined that the use of a hot tub would only provide a short-term beneficial effect, mostly psychological, and that it would not provide any long-term physical beneficial effects.
28. Such a request with the minimal, if any relief, and probability that her home would have to be modified to accommodate the hot tub is not a reasonable treatment under § 640(a).
29. Furthermore, the problem she graphically described at hearing (constipation) would create no risk of contamination of a hot tub shared by others. Although she insists on the need for the hot tub, the evidence does not support her position that this will relieve her symptoms except for the briefest of periods. Nor is there convincing evidence that it will help her maintain her functional abilities.
Conclusion
30. The facts and objective evidence of this case clearly demonstrate that Claimant is not permanently and totally disabled as a result of her work-related injury. Claimant is not at medical end result for her psychological condition and improvement in her physical symptoms is likely if her depression is successfully treated. There exist opportunities for more aggressive and better psychological treatment that could benefit Claimant psychologically as well as her physical functioning.
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31. The evidence and testimony establish that the installation of a hot tub in Claimant’s home would not serve to improve Claimant’s condition, the Claimant has not established that the installation would even be plausible, and any accommodations required to install the hot tub on Claimant’s home would not be covered pursuant to the prevailing statute at the time of her work-related injury.
32. Finally, it has been established that vocational rehabilitation has not been fully pursued, and that other options exist for Claimant to work toward a return to work. These options should be fully explored and should not be summarily dismissed.
33. Finally, contrary to Dr. Grubman’s opinion, I find that Claimant’s psychological condition is causally related to the work related injury that set in motion a cascade of events. It is Black letter law that aggravation or acceleration of a preexisting condition is compensable. Marsigli Estate v. Granite City Sales, 124. Vt. 95, 103 (1964).
ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law, this claim for permanent total disability and the hot tub is DENIED.
Dated at Montpelier, Vermont this 23rd day of January 2007.
________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

Craig Hankins v. Fred’s Plumbing & Heating (April 5, 2010)

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

Craig Hankins v. Fred’s Plumbing & Heating (April 5, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Craig Hankins Opinion No. 13-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Fred’s Plumbing & Heating
For: Patricia Moulton Powden
Commissioner
State File No. X-04015
OPINION AND ORDER
Hearing held in Montpelier, Vermont on November 6, 2009
Record closed on December 10, 2009
APPEARANCES:
Steven Robinson, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUES PRESENTED:
1. Has Claimant reached an end medical result for his compensable work-related injury?
2. If yes, is Claimant entitled to permanent total disability benefits?
3. If not, is Claimant entitled to additional temporary total disability benefits?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Vocational rehabilitation records
Claimant’s Exhibit 1: Deposition of Robert McLellan, M.D., October 27, 2009
Claimant’s Exhibit 2: Curriculum vitae, Robert McLellan, M.D.
Claimant’s Exhibit 3: Claimant’s Form 8, January 18, 2007
Defendant’s Exhibit A: Various surveillance reports with accompanying DVDs
CLAIM:
Permanent total disability benefits pursuant to 21 V.S.A. §644
Alternatively, temporary total disability benefits pursuant to 21 V.S.A. §642
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Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
Claimant’s Work Injury
3. Claimant worked for Defendant as a propane delivery truck driver. On January 23, 2006 he slipped and fell on the ice while making a delivery. Claimant fell to the ground with a twisting motion and landed hard on his back. He immediately felt pain in his lower back, with pain and numbness radiating down his right leg.
4. Claimant’s medical records reveal at least two prior instances of low back pain, one in the fall of 2003 and another one in early 2004. In both cases, Claimant complained of severe unrelenting back pain and demonstrated pain behaviors that appeared to be over-exaggerated. Also in both cases Claimant required very high dosages of narcotic pain medications to control his symptoms, apparently because he has a very high opioid metabolism rate.
5. As a result of the January 2006 fall, Claimant suffered a right-sided L5-S1 disc herniation. Consistent with his prior episodes of low back pain, Claimant complained of severe, relentless pain, exacerbated by even light activity and alleviated only briefly by extremely high dosages of narcotic analgesics. Conservative attempts to manage his symptoms, including physical therapy, epidural steroid injections and facet blocks, all failed.
6. In December 2006 Claimant underwent surgery, a right-sided L5-S1 microdiscectomy performed by Dr. Tranmer. Post-operatively he continued to experience severe lumbar radiculopathy and debilitating pain. Diagnostic studies revealed a recurrent disc herniation. In August 2007 Claimant underwent a second surgical procedure at the same level. Once again, his symptoms continued virtually unabated.
Current Symptoms and Treatment Recommendations
7. Claimant’s symptoms today are for the most part unchanged. He experiences severe low back pain, with pain and numbness radiating down his right leg and into his right foot. Often he suffers painful muscle spasms as well. He sleeps poorly at night and takes sporadic cat-naps during the day to catch up. He needs help washing his back and cannot tie his own shoes. Claimant testified that on a good day, he can walk short distances, run errands in his truck (which is equipped with a seat he finds comfortable), drive a riding lawn mower, push a grocery cart and carry a bag of groceries. On a bad day, he can do little more than sit and read.
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8. None of the doctors who have treated or examined Claimant since his second surgery can find a specific anatomical cause for the severe symptoms he continues to experience. Virtually every doctor has commented on the extreme pain behaviors Claimant exhibits on examination. They have described Claimant at various times as “writhing in pain,” moaning audibly, grimacing, crying and presenting “in pain extremis.”1 Most if not all also have expressed concern about Claimant’s ongoing use of narcotic pain medications, which he continues to take in very high dosages, though none have found any evidence that he is misusing the drugs in any way.
9. Currently Claimant continues to treat with Dr. McLellan, the chief of occupational medicine at Dartmouth Hitchcock Medical Center. Dr. McLellan is board certified in occupational medicine and experienced in pain management. Dr. McLellan first evaluated Claimant in April 2006, at the referral of Dr. Haas, Claimant’s treating physician at the time. Dr. McLellan again evaluated Claimant in February 2009, and has been monitoring his care since then.
10. In Dr. McLellan’s opinion Claimant now suffers from post-laminectomy syndrome, which essentially refers to a patient for whom surgery has failed to alleviate ongoing back and leg pain. Dr. McLellan acknowledges that spine imaging studies have not revealed a specific “pinch” point or other anatomic basis for Claimant’s lower extremity pain. For this reason, and also because Claimant already has failed two previous disc surgeries, Dr. McLellan does not consider him to be an appropriate candidate for additional surgery. This is consistent with the opinions of other consulting physicians as well.
11. Dr. McLellan also does not consider Claimant to be an appropriate candidate for a functional restoration program. Such a program encourages patients to develop appropriate coping strategies so that they are able to focus less on their pain and more on increasing their functional abilities. Psychological counseling and cognitive behavioral therapy are key components of functional restoration.
12. According to Dr. McLellan, unless the patient welcomes the concept and is interested in pursuing this type of approach, functional restoration is unlikely to be successful. Unfortunately, by all reports Claimant lacks insight as to the extent to which his symptoms might be driven at least in part by psychological factors. He appears stubbornly resistant, therefore, to the possibility that psychologically-based treatment might help alleviate his pain experience and thereby improve his functioning.
1 Claimant demonstrated some of these pain behaviors during the formal hearing. He frequently grimaced, sighed, changed his position while seated, stood up, leaned on his chair and moved about the room.
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13. This resistance was particularly evident in the context of the comprehensive pain evaluation Claimant underwent, at Dr. McLellan’s referral, with Dr. Fanciullo, a Dartmouth Hitchcock pain specialist. In his June 11, 2009 office note, Dr. Fanciullo described the visit in some detail:
I asked him early on about whether or not he had seen a mental health practitioner or a psychologist or psychiatrist. He responded that he does not like it when people talk to him about psychiatry. He spent almost the entire visit convincing me that he had pain and trying to convince me that he had requisite psychological skills to determine that he does not need to see a psychologist when it was so obvious that he does need to see a psychologist. . . . I explained to him on multiple occasions that this has been going on for over three years now and he really has to try to get over it, and he has not been able to get over it by himself and he needs some help to try to help him get over it.
. . .
Plan: We spent a long time together today . . . with me explaining to him that I would not be able to care for him unless he saw a psychiatrist. He insisted over and over that this problem was not in his head.
. . .
I have spent, as I mentioned, a great deal of time with him today talking about coping skills, the fact that it is likely that even if the opioids work, they will only reduce his pain by 30% and that he needs to learn how to cope with the pain and have . . . value [in] his life despite the fact that he has the pain and that he must eliminate the dramatic and abnormal pain behaviors that he exhibits so prominently. I think he disagrees with everything about the plan . . .
14. There is no indication in the medical records that Claimant ever pursued the psychiatric treatment upon which Dr. Fanciullo had insisted. At this point, given his low level of functioning and extreme pain focus, Dr. McLellan no longer considers him to be an appropriate candidate for functional restoration. Dr. McLellan testified that assuming Claimant’s attitude towards such an approach remains unchanged, in his opinion Claimant is at end medical result for his January 2006 injury.
15. Defendant presented evidence from three independent medical evaluators to the effect not only that Claimant is at end medical result, but also that he reached that point some time ago. Dr. Gennaro conducted an independent medical evaluation on April 3, 2008 and later determined that Claimant had reached an end medical result as of August 11, 2008. Dr. Ensalada performed a medical records review and, based on Dr. Gennaro’s earlier exam, determined that Claimant had reached an end medical result “no later than” April 3, 2008. Last, Dr. Kirkpatrick conducted an independent medical evaluation in October 2009 and concluded that Claimant likely had achieved end medical result in early 2009.
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16. In reaching their conclusions as to end medical result, both Dr. Gennaro and Dr. Kirkpatrick agreed that Claimant’s ongoing symptoms were either caused or aggravated by his January 2006 work injury. Notably, however, Dr. Ensalada came to view Claimant’s presentation differently.2 In Dr. Ensalada’s opinion, Claimant suffers from both somatoform pain disorder and an opioid abuse disorder. Dr. Ensalada believes that it is those two conditions, and not the January 2006 work injury, that account for Claimant’s persistent reports of severe pain and total incapacity.
17. Somatoform pain disorder refers to a mental or behavioral condition characterized by subjective complaints that far exceed any objectively determined evidence of physical pathology. It is a recognized behavioral disorder according to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). Patients who suffer from this condition unconsciously exaggerate their physical symptoms for psychological purposes.
18. Dr. Ensalada pointed to Claimant’s prior episodes of low back pain (referred to in Finding of Fact No. 4 above) as evidence of his “propensity to somaticize.” He noted that in both 2003 and 2004 Claimant’s treating physicians had commented on Claimant’s exaggerated pain behaviors and heavy use of narcotic pain medications. With that in mind, Dr. Ensalada concluded that at the time of Claimant’s January 2006 work injury both his somatoform pain disorder and his opioid abuse disorder were “active and pre-existing,” and that the 2006 event had neither caused nor aggravated nor accelerated those conditions in any way.
19. Dr. Ensalada acknowledged that he is not a licensed psychologist or psychiatrist and that he arrived at his diagnosis without personally having examined or interviewed Claimant. He also acknowledged that he previously had reviewed the medical records relating to Claimant’s prior episodes of low back pain in the context of his 2007 records review, but did not attribute Claimant’s symptoms to a psychological condition rather than a physical one at the time.
Claimant’s Work Capacity
20. Claimant has not worked since his January 2006 accident. In July 2009 he underwent a functional capacities evaluation. Based on that testing, the evaluator concluded that Claimant did not have sufficient work capacity to seek gainful employment. In reaching that conclusion, the evaluator noted that Claimant had self-limited on certain tests due to pain, such that his actual physical strength might have been somewhat greater than what he demonstrated. Even apart from Claimant’s strength testing, however, the evaluator determined that Claimant’s low tolerance for sitting, standing or weighted lifting precluded even sedentary work.
2 Initially, following an October 2007 medical records review Dr. Ensalada determined that the relationship between Claimant’s January 2006 work injury and the subsequent development of his radicular symptoms was “one of aggravation.” At Defendant’s request, Dr. Ensalada took a “second look” at Claimant’s medical records in May 2009, and in the course of that review reached his current opinion as to causation.
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21. Dr. McLellan concurs in this assessment of Claimant’s work capacity. In his opinion, Claimant is permanently and totally disabled. Dr. McLellan testified that the thought of Claimant being employable is incompatible with his presentation on exam – his pain-focused behaviors, his inability to stand straight and his described low level of functioning.
22. Defendant’s medical experts disagree. Drs. Gennaro, Ensalada and Kirkpatrick all opined that Claimant has a sedentary work capacity. In reaching this conclusion, both Dr. Gennaro and Dr. Ensalada discounted the results of the July 2009 functional capacities evaluation. In their opinion, an FCE measures only what a patient feels capable of doing on a particular day, and the results may be skewed by his or her fear of pain or reinjury. Consequently, while such testing may be helpful in terms of identifying a patient’s functional capacity, it is not necessarily definitive.
Vocational Rehabilitation
23. At Defendant’s referral, in August 2006 Claimant met with John May, a certified vocational rehabilitation counselor, to begin the process of determining whether Claimant was entitled to vocational rehabilitation services. At the meeting, Mr. May obtained information from Claimant as to his educational background and prior work experience. At the conclusion of the meeting Mr. May asked Claimant to review, sign and send back a medical release form so that Mr. May could review Claimant’s medical records.
24. Despite repeated subsequent requests, Claimant refused either to sign the medical release form or to provide a written explanation for his refusal to do so. Ultimately, Mr. May determined that Claimant was not interested in pursuing vocational rehabilitation services and closed his file.
25. Mr. May testified that had Claimant indicated his willingness to continue with the entitlement process, the next step would have been to identify a suitable vocational goal. In order to do so, Mr. May testified, he might have sought a more formal assessment of Claimant’s functional abilities, aptitudes and skills. In addition, he might have investigated various training options, adaptive equipment and assistive technologies that conceivably could help expand Claimant’s vocational options. Last, Mr. May testified that he might have reviewed Claimant’s medical treatment options to see how pursuing one or another would impact his vocational abilities. Without having done any of these things, Mr. May testified that he was unable either to identify an appropriate vocational goal or to develop a suitable return to work plan.
26. Claimant testified that he only vaguely recalled his interactions with Mr. May. He stated that he was in great pain at the time of Mr. May’s initial visit and that subsequently, during the time when Mr. May would have been sending his follow-up letters, he was recovering from his second surgery. Thereafter, in early 2007 Claimant sought to change vocational rehabilitation providers from Mr. May to another counselor who had been recommended to him. However, because he used the wrong form to do so the Department never acted on his request, and Claimant never pursued the matter himself.
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27. At the request of Claimant’s attorney, Greg LeRoy, a certified vocational rehabilitation counselor, met with Claimant to evaluate his ability to benefit from vocational rehabilitation services and return to gainful employment. Mr. LeRoy also reviewed Claimant’s medical records.
28. In Mr. LeRoy’s opinion, Claimant’s chronic pain, his use of narcotic pain medications, his poor coping skills and his psychologically driven pain behaviors preclude him from sustaining competitive employment, either with or without vocational rehabilitation services. In reaching this conclusion, Mr. LeRoy relied heavily on the results of the July 2009 functional capacities evaluation, which determined that Claimant lacked even a sedentary work capacity, and also on Dr. McLellan’s determination that Claimant had reached an end medical result and was permanently and totally disabled.
29. According to Mr. LeRoy, vocational rehabilitation services are appropriate only in cases in which the injured worker either has a viable work capacity or reasonably is expected to regain some with further treatment. Vocational rehabilitation services alone cannot create a work capacity. Thus, Mr. LeRoy testified, given that Claimant has reached an end medical result without having regained any work capacity, there is no basis for providing vocational rehabilitation services.
Surveillance
30. Defendant introduced evidence of eighteen non-consecutive days of surveillance conducted over a period of fourteen months, from August 2008 through October 2009. In addition to the investigators’ written reports, Defendant introduced approximately five hours of video documentation. The videos show Claimant performing such activities as mowing his lawn with a riding mower, driving to and from various locations, walking, standing, bending at the waist, pushing a shopping cart, and using a broom to clear snow from his truck.
31. The videos do not depict any clear instances of the type of marked pain behaviors Claimant’s doctors often noted. Notably, there is no audio component to the videos, so it is impossible to discern whether Claimant might have been expressing pain at any time while he was being monitored. Nevertheless, he is not observed to be visibly writhing in pain, grimacing or crying, for example. There are a few occasions during which it appears Claimant might be favoring his right leg slightly while walking, and one occasion during which it appears he might be leaning on a shopping cart for support, but even these instances are not so clearly depicted as to be conclusive. In all, at least during the five hours during which filming occurred, the videos appear to show Claimant attending to his daily activities in little, if any, apparent distress.
32. When asked to comment on the surveillance, Dr. Gennaro testified that he only reviewed a few minutes of the videos and that he saw nothing that was inconsistent with the July 2009 functional capacities evaluation. Dr. Ensalada testified that he watched all of the videos, and that Claimant’s behavior appeared very different from what had been documented in the medical records he had reviewed.
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33. Dr. McLellan did not watch the videos. Upon hearing a description of the types of activities depicted, he acknowledged that they seemed at odds with Claimant’s typical presentation during most of his office visits. Dr. McLellan also acknowledged, however, that he would expect Claimant to have both “good” and “bad” days, and that he would encourage him to be as active as possible every day.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
3. The dispute here centers on whether Claimant’s January 2006 work injury has rendered him permanently and totally disabled. Claimant points to three pieces of evidence in support of his claim – first, the July 2009 functional capacities evaluation, which determined that he lacked even a sedentary work capacity; second, Dr. McLellan’s opinion that he is permanently and totally disabled; and third, Mr. LeRoy’s conclusion that he is not an appropriate candidate for vocational rehabilitation services.
4. Against this evidence, Defendant counters with the opinions of Drs. Gennaro, Ensalada and Kirkpatrick, all of whom determined that Claimant has a sedentary work capacity. Beyond that, Defendant argues that Claimant failed to engage properly with the vocational rehabilitation services that Mr. May offered him in 2007, and that it is premature to consider him permanently unemployable until he does so. Third, Defendant points to Dr. Ensalada’s diagnosis of somatoform pain disorder rather than the January 2006 work injury as the cause of Claimant’s current symptoms. Last, Defendant asserts that the surveillance reports and videos document Claimant engaging in activities that are inconsistent with his subjective complaints of pain and previously demonstrated pain behaviors.
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Permanent Total Disability
5. Under Vermont’s workers’ compensation statute, a claimant is entitled to permanent total disability benefits if he or she suffers one of the injuries enumerated in §644(a), such as total blindness or quadriplegia. In addition, §644(b) provides:
The enumeration in subsection (a) of this section is not exclusive, and, in order to determine disability under this section, the commissioner shall consider other specific characteristics of the claimant, including the claimant’s age, experience, training, education and mental capacity.
6. The workers’ compensation rules provide further guidance. Rule 11.3100 states:
Permanent Total Disability – Odd Lot Doctrine
A claimant shall be permanently and totally disabled if their work injury causes a physical or mental impairment, or both, the result of which renders them unable to perform regular, gainful work. In evaluating whether or not a claimant is permanently and totally disabled, the claimant’s age, experience, training, education, occupation and mental capacity shall be considered in addition to his or her physical or mental limitations and/or pain. In all claims for permanent total disability under the Odd Lot Doctrine, a Functional Capacities Evaluation (FCE) should be performed to evaluate the claimant’s physical capabilities and a vocational assessment should be conducted and should conclude that the claimant is not reasonably expected to be able to return to regular, gainful employment.
7. A finding of odd-lot permanent total disability is not to be made lightly. Gaudette v. Norton Brothers, Inc., Opinion No. 49-08WC (December 3, 2008). For that reason, and as Rule 11.3100 makes clear, typically there must be evidence to establish first, what the injured worker’s functional capabilities are, and second, that no viable vocational options exist within those capabilities. Id.; Prescott v. Suburban Propane, Opinion No. 42-09WC (November 2, 2009).
8. Here, I accept the results of the July 2009 functional capacities evaluation, together with Dr. McLellan’s opinion, as the most credible evidence of Claimant’s functional capabilities. Based on that evidence, I find that Claimant’s low tolerance for sitting or standing, his heavy reliance on narcotic pain medications and his pain-focused behaviors preclude even a sedentary work capacity. While it may be true, as Drs. Gennaro and Ensalada attested, that a functional capacities evaluation measures only what a patient feels able to do on a particular day, Defendant provided no objective evidence that Claimant probably would have tested better on a different day.3 Without such evidentiary support, Defendant’s expert opinions are unpersuasive.
3 Of note, neither Dr. Gennaro nor Dr. Ensalada could point to any specific activities captured on the surveillance videos that were inconsistent with the results of Claimant’s functional capacities evaluation.
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9. I agree with Claimant’s vocational expert, furthermore, that vocational rehabilitation has no place in a case where, as here, the injured worker lacks the functional capacity to support even sedentary work. As Mr. LeRoy cogently explained, vocational rehabilitation services alone cannot create a work capacity where one does not otherwise exist.
10. Last, I find credible Dr. McLellan’s assertion that Claimant is unlikely to benefit from further treatment, including functional restoration, and that therefore his disability is now permanent. Were Claimant a different person, one less focused on his pain and more open to the interplay between the mind and the body, he might be receptive to a psychologically based treatment approach. Unfortunately, however, Dr. McLellan appropriately acknowledged that he is not. Indeed, not even Defendant’s medical experts have recommended further treatment along these lines.
11. Having concluded that a functional restoration program is not a viable treatment option, I accept as most credible Dr. Gennaro’s determination that Claimant reached an end medical result for his January 2006 work injury on August 11, 2008.
Somatoform Pain Disorder
12. I conclude, therefore, that Claimant has met his burden of proving that he is permanently and totally disabled. To establish his right to benefits, however, Claimant also must show that his disability was either caused or aggravated by his January 2006 work injury. Defendant points to Dr. Ensalada’s expert opinion as evidence that it was not.
13. Dr. Ensalada testified that the best explanation for Claimant’s current symptoms and disability is somatoform pain disorder. According to him, this diagnosis is more a characteristic of Claimant’s psychological makeup, not a consequence of his January 2006 work injury.
14. I find Dr. Ensalada’s analysis unconvincing. First, although I acknowledge his impressive credentials, Dr. Ensalada is not a trained or licensed mental health professional. I question the propriety of accepting his diagnosis of a psychologically-based behavioral disorder without the benefit of more formal psychological testing and evaluation.
15. In addition, I find troubling the fact that Dr. Ensalada did not even interview Claimant himself, but rather based his diagnosis solely on his review of the medical records. Diagnosing a psychological condition is not the same as reviewing x-rays or MRI scans. To do so based only on second-hand reports noted in a cold medical record seems unreliable and unscientific.
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16. Last, it is not clear to me from Dr. Ensalada’s testimony exactly what the basis for his diagnosis was. Certainly many doctors commented on Claimant’s pain-focused behaviors and propensity to magnify his symptoms. But presumably not every instance of symptom magnification merits a diagnosis of somatoform pain disorder. To the contrary, presumably this is where further psychological testing typically is called upon to provide the additional information necessary either to support or to refute a diagnosis of somatoform pain disorder. See, e.g., Karabegovich v. Monahan SFI, Opinion No. 37-09WC (September 29, 2009).
17. For all of these reasons, I find Dr. Ensalada’s analysis unpersuasive. I accept instead Dr. McLellan’s determination, with which both Dr. Gennaro and Dr. Kirkpatrick concurred, that Claimant’s current symptoms and disability were either caused or aggravated by his January 2006 work injury.
Surveillance
18. As a final defense, Defendant asserts that the surveillance reports and videos document activities that are at odds with Claimant’s subjective complaints and dramatic pain behaviors, so much so as to call his credibility into question and undermine any finding of permanent total disability. I disagree. The videos do no more than depict Claimant engaging in activities that he admitted he was able to undertake on a “good” day, such as using a riding lawn mower, driving in his truck and running errands. They do not show what he is able to do – or not – on a “bad” day. They are extremely limited in scope – just five hours of video spread out over a period of fourteen months – and have no audio component. I do not find in them sufficient evidence either to undermine Claimant’s own testimony or to negate the conclusions of his medical and vocational experts.
19. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $5,017.56 and attorney fees totaling $15,327.00. An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded.
20. As for attorney fees, Claimant’s request includes not only the fees incurred pursuing the current matter to formal hearing, but also fees incurred in 2007 and 2008 relating to issues that ultimately were resolved short of formal hearing. According to Workers’ Compensation Rule 10.1300, such fees are recoverable only in limited instances, under circumstances that do not apply here. I find that the total amount of fees incurred pursuing issues unrelated to the current hearing was $3,942.00; these fees are not recoverable. As to the remainder, which total $11,385.00, these lie within the Commissioner’s discretion. I find they are appropriate here, and therefore these fees are awarded.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Permanent total disability benefits commencing on August 11, 2008;
2. Interest on the above amounts calculated in accordance with 21 V.S.A. §664;
3. Costs totaling $5,017.56 and attorney fees totaling $11,385.00.
DATED at Montpelier, Vermont this 5th day of April 2010.
_______________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Dolores Drew v. Northeast Kingdom Human Services (August 31, 2011)

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

Dolores Drew v. Northeast Kingdom Human Services (August 31, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Dolores Drew Opinion No. 23-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Northeast Kingdom
Human Services For: Anne M. Noonan
Commissioner
State File No. U-1564
OPINION AND ORDER
Hearing held in Montpelier, Vermont on March 21, 2011
Record closed on May 12, 2011
APPEARANCES:
Steven Robinson, Esq., for Claimant
Eric Johnson, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant permanently and totally disabled as a result of her May 1, 2003 work-related injury?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Deposition of Charles Alexander, January 28, 2011
CLAIM:
Permanent total disability benefits pursuant to 21 V.S.A. §645
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim. Judicial notice also is taken of the Commissioner’s prior Opinion and Order in this claim, D.D. v. Northeast Kingdom Human Services, Opinion No. 47-06WC (January 9, 2007).
Claimant’s Vocational and Medical History
3. Claimant is a high school graduate. Her employment experience is almost exclusively in the personal care field. She has worked as a nurse’s aide, in both nursing home and private duty settings. Aside from this hands-on experience, Claimant has had no other vocational training or advanced educational coursework.
4. Claimant’s prior medical history is significant for morbid obesity, peripheral edema in her lower extremities and anxiety and depression. She also has a history of low back pain following a fall at work in 1994. Claimant was disabled from working for a time after that injury, but later returned to full-time employment. Aside from some brief episodes of low back pain subsequently, neither this nor any of Claimant’s other pre-existing conditions was disabling prior to May 1, 2003.
Claimant’s May 2003 Work Injury and Subsequent Medical Course
5. Claimant began working for Defendant as a day services provider in 1998. Her duties included providing daily assistance to the mentally challenged residents of a group home. Claimant helped them with personal care and other daily living activities and also accompanied them on trips within the community.
6. On May 1, 2003 Claimant was helping a co-worker to retrieve some supplies for the night shift. As she was descending a flight of stairs her foot slipped. Claimant slid down the stairs on her backside, landing at the bottom with her right knee tucked up under her left leg.
7. Defendant accepted Claimant’s injuries, which it initially characterized as a right knee strain and low back contusion, as compensable and began paying workers’ compensation benefits accordingly.
8. For her right knee injury Claimant treated with Dr. Gagnon. Dr. Gagnon diagnosed a knee contusion, which he treated conservatively. Claimant reached an end medical result for this injury on April 14, 2004 and was rated with a 3 percent whole person permanent impairment. Aside from some limitation as to climbing stairs, Claimant’s right knee injury does not otherwise restrict her ability to work.
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9. For her lower back injury Claimant has treated principally with her primary care provider, Susan Taney, a nurse practitioner. From the beginning, her symptoms have consisted of an aching, burning pain across her lower back, with some muscle spasm but no clear radicular component. She sleeps fitfully and can neither sit nor stand for extended periods of time without having to change position. Her tolerance for walking is extremely limited. Claimant also suffers from depression, at least in part causally related to her chronic pain and physical limitations. She spends most of her day napping, performing very light housework, watching TV and engaging in craft projects.
10. Diagnostic imaging studies have revealed some degenerative disc changes in Claimant’s lumbar spine, but no definitive herniations. For that reason, treatment has focused on conservative rather than surgical measures. Neither physical therapy nor injections has provided any long-term symptom relief. For years now, Claimant has relied on narcotic pain medications as her primary means of managing her symptoms. These have been appropriately prescribed and never abused.
11. In July 2004 Claimant began a multi-disciplinary functional restoration program at the Work Enhancement Rehabilitation Center (WERC) in Williston. Programs such as this combine physical therapy, occupational therapy, pain management and psychological counseling in a structured in-patient setting. The goal is to assist patients to develop both the physical capacity and the coping skills necessary to achieve clearly delineated functional goals, be they work-related, domestic or recreational. Claimant had successfully completed the WERC program following her previous low back injury in 1994. Given both her prior success and her current functional limitations, Dr. Cody, who evaluated her for entry into the three-week intensive program, concluded that she was a “perfect candidate.”
12. Unfortunately, this time Claimant was unable to complete the WERC program. Shortly after starting it her grandfather was killed in a motor vehicle accident. In addition, while engaged in program activities she experienced an episode of dizziness, which her primary care provider, Ms. Taney, felt warranted further diagnostic work-up before continuing. For these reasons, Claimant left the program after only four days.
13. In September 2004 Claimant was diagnosed with a pituitary tumor, and later with complex migraine headaches. These conditions were successfully treated, and by early 2005 Ms. Taney was once again strongly advocating for Claimant to resume an in-patient functional restoration program.
14. At Defendant’s request, in May 2005 Claimant underwent an independent medical examination with Dr. Gennaro. Dr. Gennaro determined that Claimant likely had sustained a low back strain as a result of her work injury, but that her ongoing symptoms were no longer attributable to that event. Instead, Dr. Gennaro pointed to Claimant’s morbid obesity and severe deconditioning as the principal impediments to her recovery.
15. As for functional restoration, Dr. Gennaro concluded that such a program was neither necessitated by Claimant’s work injury nor likely to change her circumstances, and therefore he would not recommend it. Rather, Dr. Gennaro identified extreme weight loss as the most efficacious way to improve Claimant’s condition in the long run.
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16. Dr. Gennaro concluded that Claimant had reached an end medical result for her work injury and rated her with a 5% whole person permanent impairment. With this opinion as support, in August 2005 Defendant discontinued Claimant’s temporary total disability benefits. It also refused to pay for Claimant to resume participation in a functional restoration program.
17. Claimant appealed Defendant’s discontinuance. In support of her position she produced evidence from Ms. Taney and other medical providers indicating that she likely would derive great benefit from a functional restoration program, as it would improve her chances of successfully returning to work.
18. Based on the evidence adduced at formal hearing, the Commissioner rejected Dr. Gennaro’s end medical result determination, and instead ordered Defendant both to reinstate temporary disability benefits and to fund Claimant’s renewed participation in a functional restoration program. D.D. v. Northeast Kingdom Human Services, Opinion No. 47-06WC (January 9, 2007). As to the latter issue, the Commissioner stated:
[T]he Defendant’s assertion that the Claimant will not benefit from a functional restoration program because of her weight is untenable. “An employer takes each employee as is and is responsible under workers’ compensation for an injury which disables one person and not another.” Stoddard v. Northeast Rebuilders, Opinion No. 28-04WC (2004) (citing Morrill v. Bianchi, 107 Vt. 80 (1935)). Before the work injury, the Claimant was fully capable of performing her job as a full time service provider and healthcare attendant at her current weight. Aside from obesity and deconditioning, the Defendant offers no other physical impediment that might bar the Claimant from benefiting from a work hardening program. As such, a functional restoration program designed to increase the Claimant’s conditioning and help her cope with her low back pain is an entirely reasonable and necessary treatment.
Id., Conclusion of Law No. 10.
19. Claimant did not re-enter the WERC program following the Commissioner’s decision. Instead, she worked with Ben McCormack, a physical therapist who had treated her previously, to fashion a similar program closer to home. Mr. McCormack was able to provide a supervised therapeutic exercise regimen, as well as functional testing and training in body mechanics, positional tolerances and proper lifting techniques. There were no psychological or behavioral components to his program, however, nor was treatment provided in an in-patient setting. For these reasons, I find that the services Claimant received through Mr. McCormack were not truly equivalent to the type of functional restoration program that WERC had offered.
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20. Claimant began Mr. McCormack’s program in late February 2007. Unfortunately, in early April she developed plantar fasciitis and had to discontinue treatment until that condition resolved. Claimant returned to Mr. McCormack for a single visit in late August 2007, but for reasons that are unclear from the record did not re-engage in therapy thereafter.1
21. At Defendant’s request, in May 2007 Claimant underwent an independent medical examination with Dr. McLellan, an occupational medicine specialist. Dr. McLellan determined that Claimant had reached an end medical result for her work-related back injury and that any further treatment she required was necessitated by her obesity and associated deconditioning. In this respect, Dr. McLellan’s opinions were essentially the same as those Dr. Gennaro earlier had expressed, which the Commissioner specifically had rejected in her January 2007 Opinion and Order. Nevertheless, the Department subsequently approved Defendant’s discontinuance of temporary total disability benefits effective August 17, 2007 on the grounds that Claimant had reached an end medical result.
22. Aside from narcotic pain medications, since discontinuing Mr. McCormack’s program Claimant has not undergone any additional treatment directed specifically at her chronic low back pain. She remains severely deconditioned, particularly from a cardiovascular perspective. She is even more morbidly obese than she was prior to her work injury, having gained approximately 100 pounds since 2003. Her venous insufficiency and resulting peripheral edema have worsened as well.
23. Claimant has experienced two or three acute exacerbations of her low back pain since her initial injury in 2003. One such exacerbation occurred in October 2005, when she rolled over in bed. Another occurred after attending her grandson’s football game. I find from the credible medical evidence that these and other minor exacerbations caused only temporary increases in Claimant’s pain, following which she returned to her baseline. None of these incidents account for her current and ongoing symptoms.
1 The parties stipulated that the only issue regarding functional restoration that was to be addressed at the current hearing was whether such a program constitutes reasonable, necessary and causally related treatment for Claimant’s work injury. By stipulation, no evidence was introduced as to whether Claimant refused to participate in a functional restoration program after 2007 and/or whether Defendant refused to pay for her to do so.
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Medical Opinions as to Functional Restoration
24. The medical evidence is conflicting as to whether Claimant still might benefit from participation in a structured functional restoration program. Specifically:
• Ms. Taney continues to believe that a structured in-patient functional restoration program likely will improve Claimant’s condition both physically and psychologically, though perhaps not to the point necessary to enable her to return to gainful employment.
• Based both on his initial 2005 evaluation and on subsequent examinations conducted in 2006 and 2011, Dr. Gennaro continues to believe that the primary cause of Claimant’s disability, and the chief impediment to her recovery, is her morbid obesity. Although he acknowledges that weight loss and aerobic conditioning would be very beneficial in terms of improving Claimant’s level of function, given her obesity-related health issues he does not believe that she is an appropriate candidate for a WERC-type functional restoration program.
25. There is an alternative to the WERC program, one that is less physically intensive and more psychologically based, at least to start. This program, run through the Occupational Disability Management Center (ODMC) in Rutland, offers interdisciplinary treatments such as behavioral counseling, pain management education and gentle movement-oriented therapies. The goal is to reframe a patient’s disability perception, reduce the fear of re-injury and use exercise activity to stimulate natural pain-relieving endorphins. This type of program differs from the more traditional work-hardening model employed at WERC by its ability to accommodate patients who are perhaps less healthy and more burdened by psychosocial issues.
26. Upon reviewing Claimant’s medical records, Dr. Mann, the licensed psychologist/doctorate who both owns and manages the ODMC program, has concluded that she is a good candidate, and that her participation likely will increase her level of functioning and improve her overall health. Even Dr. Gennaro conceded that Claimant likely would fare better in a more behaviorally-based program such as ODMC’s than she would in a WERC-type program.
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Medical Opinions as to Claimant’s Functional Capacity and Ability to Work
27. Claimant has not worked since her May 2003 accident. The medical opinions as to her functional capacity and ability to work have varied over time:
• In June 2005 the results of a functional capacity evaluation indicated that Claimant was capable of working three hours per day in a light capacity, and likely more in a sedentary capacity provided she was allowed positional changes;
• In July 2005 Ms. Taney released Claimant to part-time (five hours per day) light capacity work, with restrictions against lifting and prolonged driving;
• Following his May 2007 independent medical examination, Dr. McLellan concluded that considering only Claimant’s work-related low back injury she was capable of sedentary work, but the combination of her non-work-related conditions (obesity, peripheral edema, plantar fasciitis, complex migraines and depression) rendered her totally disabled;
• A repeat functional capacity evaluation in November 2007 determined that Claimant was capable of sustaining sedentary level work for an eight-hour day, again provided that she was allowed to change positions frequently;
• In May 2008 Ms. Taney released Claimant to part-time (four hours per day, three days per week) work, gradually increasing her hours to tolerance and with restrictions against heavy lifting and prolonged standing or sitting;
• A third functional capacity evaluation in May 2010 determined that Claimant had a part-time (four hours per day, five days per week) sedentary work capacity, and was limited from doing more primarily because of her poor cardiovascular conditioning and endurance level;
• Consistent with his January 2011 independent medical examination, Dr. Gennaro testified at the formal hearing that Claimant currently has a part-time (20 hours per week) sedentary work capacity;
• Ms. Taney testified at hearing that she no longer believes that Claimant can sustain even part-time sedentary employment on a regular basis.
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Vocational Rehabilitation Efforts
28. Claimant initially was found entitled to vocational rehabilitation services in 2005. She worked with Defendant’s assigned vocational rehabilitation counselor, Melanie Hamilton, to develop a suitable return to work plan. The goal was to find employment in the personal care field, for example as a care attendant or companion, within the parameters of Ms. Taney’s July 2005 work release.
29. In September 2005 Claimant was hired to work as a night-duty personal care attendant for an elderly woman. Unfortunately, on the day she was to start she suffered a severe bout of edema in her legs. As a result, Ms. Taney disabled her from working for at least a month. By the time Claimant recovered, the job was no longer available.
30. In January 2006 Claimant decided to change vocational rehabilitation counselors. Her new counselor, George Fotinopoulos, proposed a plan to return Claimant to work as an elderly companion. However, due to what Mr. Fotinopoulos characterized as a “lack of cooperation” from Defendant, the Department or the parties’ attorneys, this plan was neither endorsed nor approved.
31. In February 2008 Claimant began working with yet another vocational rehabilitation counselor, William O’Neill. Mr. O’Neill’s return to work plan had as its goal work as a human services paraprofessional. Given Claimant’s extended period of time out of work, Mr. O’Neill suggested that she consider volunteer as well as paid opportunities within that field.
32. To that end, in December 2008 Claimant began volunteering as a companion to a friend of hers who was in the advancing stages of ALS. Although the friend lived just four trailers down – a distance of only five or six hundred feet – Claimant was unable to manage the walk, and instead had to drive. Once there, she helped the friend to eat, drink and take medications, watched TV with her and occasionally ran brief errands. Claimant did not prepare meals, assist with toileting or engage in any other more strenuous activities.
33. Claimant’s friend died in May 2009. At that point Mr. O’Neill anticipated that Claimant would devote her efforts to transitioning from volunteer work to paid employment, but this did not occur. Instead, Claimant voiced concern that she was not physically capable of performing full-time work. In August 2009 she requested that vocational rehabilitation services be suspended while she sought Defendant’s approval for an updated functional capacity evaluation.
34. As noted above, see Finding of Fact No. 27, the May 2010 functional capacity evaluation determined that Claimant was capable of working at only a part-time sedentary level. With this limited capacity, Mr. O’Neill concluded that vocational rehabilitation services were unlikely to restore her to employment that would approximate her pre-injury wages. For that reason, he closed his file.
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35. Mr. O’Neill testified at hearing that despite having closed Claimant’s file he still believes that vocational rehabilitation services would assist her to return to work. Claimant has a pleasing personality and is a very caring individual, both traits that make her a good match for work in her chosen field. I find this testimony to be credible.
36. Claimant has been receiving social security disability benefits since 2006. In the eight years since her May 2003 work injury she has formally applied for only fifteen jobs. Although I find credible Claimant’s stated desire to return to work, I also find that in at least some respects – for example, her ability to sit, stand or walk for more than the briefest period of time – she perceives herself to be more disabled than is actually established by her measured limitations.
Expert Vocational Rehabilitation Opinions
37. Each party presented its own expert testimony as to whether Claimant has any reasonable prospect of finding and sustaining regular employment, either with or without vocational rehabilitation assistance. Testifying on Claimant’s behalf, Greg LeRoy concluded that she does not. Testifying for Defendant, John May concluded that she does. Both Mr. LeRoy and Mr. May are certified vocational rehabilitation counselors who are well qualified to provide opinions as to Claimant’s vocational prospects.
(a) Mr. LeRoy
38. The starting point for Mr. LeRoy’s opinion was his assumption that Claimant is unlikely to achieve any further improvement in her work capacity beyond the part-time sedentary level indicated by her 2010 functional capacity evaluation. Given Claimant’s narrow work history, her lack of advanced formal training and her limited physical capabilities, Mr. LeRoy concluded that the selection of jobs for which she might still qualify – as a personal care attendant, for example, but with no hands-on care, cooking or housecleaning required – was very limited. The competition for job vacancies in Claimant’s area would be keen, furthermore, and in Mr. LeRoy’s opinion she would not compare favorably to other applicants. For these reasons, in Mr. LeRoy’s opinion Claimant likely is unemployable.
39. Mr. LeRoy acknowledged that the primary means of changing Claimant’s vocational prognosis and restoring her to gainful employment would be to improve her level of functioning. He conceded that the question whether a multidisciplinary functional restoration program might help her achieve this result was a medical one, and therefore beyond his area of expertise.
40. Mr. LeRoy also conceded that past efforts at vocational rehabilitation never proceeded beyond encouraging Claimant to seek jobs that matched her current skill level and educational background. In that sense, the more advanced steps in the vocational rehabilitation hierarchy – new skill training and/or education, for example – still have not been exhausted.
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41. Last, Mr. LeRoy expressed some frustration with the fact that according to his interpretation of Vermont law Claimant might not be entitled to further vocational rehabilitation services, because her part-time sedentary work capacity is unlikely to lead to employment that will approximate her pre-injury wages. His own professional preference would be to allow her continued access to vocational rehabilitation assistance in the hopes of capitalizing on whatever work capacity she has.
(b) Mr. May
42. In Mr. May’s opinion, it is as yet premature to conclude that Claimant has no reasonable prospect of gainful employment and is therefore permanently and totally disabled. He cited numerous vocational rehabilitation resources that likely would increase Claimant’s employability, such as proactive assistance with job search activities, new skill training, job modification and home employment options.
43. Mr. May acknowledged that there are numerous hurdles to Claimant’s successful return to regular gainful work, including her chronic pain, her obesity and other co-morbid medical conditions and her overall deconditioning. In his opinion, Claimant’s vocational prospects would be significantly enhanced were she to participate successfully in a multidisciplinary functional restoration program. Even without such a program, however, in Mr. May’s experience claimants who return to work on a graduated schedule often demonstrate improved endurance, conditioning and function over time. Were Claimant to return to work initially at a part-time sedentary job, she likely would be able to increase her hours over time. I find this testimony to be credible.
44. Mr. May conducted a cursory labor market survey, from which he concluded that jobs consistent with Claimant’s abilities likely exist in her labor market area. According to his limited research, the patient companion field is a high growth occupation, and not all of these jobs require walking or lifting beyond Claimant’s current limitations.
CONCLUSIONS OF LAW:
1. Claimant seeks permanent total disability benefits. She alleges that the combination of her compensable work injury, her pre-existing and co-morbid medical conditions and her functional restrictions so limit her vocational options as to render her incapable of sustaining regular, gainful work.
2. Defendant asserts in response that both medical treatment and vocational rehabilitation options exist that, if successfully pursued, will decrease Claimant’s functional restrictions and enhance her ability to find and sustain suitable employment. It is premature, therefore, to declare her permanently and totally disabled.
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3. Under Vermont’s workers’ compensation statute, a claimant is entitled to permanent total disability benefits if he or she suffers one of the injuries enumerated in §644(a), such as total blindness or quadriplegia. In addition, §644(b) provides:
The enumeration in subsection (a) of this section is not exclusive, and, in order to determine disability under this section, the commissioner shall consider other specific characteristics of the claimant, including the claimant’s age, experience, training, education and mental capacity.
4. The workers’ compensation rules provide further guidance. Rule 11.3100 states:
Permanent Total Disability – Odd Lot Doctrine
A claimant shall be permanently and totally disabled if their work injury causes a physical or mental impairment, or both, the result of which renders them unable to perform regular, gainful work. In evaluating whether or not a claimant is permanently and totally disabled, the claimant’s age, experience, training, education, occupation and mental capacity shall be considered in addition to his or her physical or mental limitations and/or pain. In all claims for permanent total disability under the Odd Lot Doctrine, a Functional Capacity Evaluation (FCE) should be performed to evaluate the claimant’s physical capabilities and a vocational assessment should be conducted and should conclude that the claimant is not reasonably expected to be able to return to regular, gainful employment.
A claimant shall not be permanently totally disabled if he or she is able to successfully perform regular, gainful work. Regular, gainful work shall refer to regular employment in any well-known branch of the labor market. Regular, gainful work shall not apply to work that is so limited in quality, dependability or quantity that a reasonably stable market for such work does not exist.
5. As the name suggests, there are two separate prongs to the permanent total disability determination. First, the disability under consideration must be permanent, as opposed to temporary. Second, it must be total, as opposed to partial.
6. Conflicting medical evidence was offered as to the permanent nature of Claimant’s disability, specifically whether her condition is likely to improve should she agree to participate in an ODMC-type functional restoration program. I conclude that it is.
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7. As ODMC’s owner/manager, Dr. Mann’s testimony as to Claimant’s suitability for that program is somewhat tainted by his financial interest in having her as a client. Even Defendant’s expert acknowledged, however, that with its heightened focus on removing behavioral and psychological barriers to increased function, a program such as ODMC’s is better suited to treating a person with Claimant’s current limitations than a more physically-based program would be. And Claimant’s primary care provider, Ms. Taney, who has followed her progress for many years and is intimately familiar with her many medical issues, also believes that Claimant likely will realize functional gains through a multidisciplinary treatment approach. There is, of course, no guarantee of success, but on the basis of these medical opinions I conclude that there is sufficient justification at least to attempt it should Claimant be willing to do so.
8. As for the second prong of the permanent total disability determination, the May 2010 functional capacity evaluation rated Claimant with a part-time sedentary work capacity. I conclude that that is a more accurate estimate of her current physical capabilities than Ms. Taney’s summary testimony to the contrary. The question still remains, however, whether that work capacity, when considered in conjunction with Claimant’s transferable skills, education and other odd lot factors, translates into viable vocational options for regular, gainful employment.
9. I am persuaded by Mr. May’s testimony on this issue that it is as yet premature to conclude that Claimant is permanently unemployable, even at her current work capacity. Vocational rehabilitation resources exist that, if properly explored, still might lead to suitable gainful employment.
10. Vermont’s vocational rehabilitation rules specifically delineate the hierarchy of options that a counselor should consider in devising an appropriate return to work plan, from job development to new skill training to advanced education to self-employment. Workers’ Compensation Rule 55.2000. Certainly in some cases it may be self-evident that pursuing the more advanced vocational options is likely to be fruitless, see, e.g., Prescott v. Suburban Propane, Opinion No. 42-09WC (November 2, 2009), but I do not consider that to be the case here. Here, Mr. LeRoy acknowledged that the vocational assistance Claimant received never proceeded beyond job development, but gave no justification at all for why other options were not considered.
11. I conclude that Claimant has not sustained her burden of proving that she has no reasonable prospect of finding and sustaining regular, gainful employment. She is not entitled to permanent total disability benefits, therefore.
12. Having concluded that Claimant is neither permanently nor totally disabled, it remains to consider whether she is entitled to additional temporary total disability and/or vocational rehabilitation benefits.
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13. In the earlier decision involving this claim, the Commissioner determined that a functional restoration program offered at least the prospect of further improvement in the medical recovery process, which is sufficient under our rules to negate a finding of end medical result. Workers’ Compensation Rule 2.1200; D.D. v. Northeast Kingdom Human Services, Opinion No. 47-06WC (January 9, 2007); see also, Cochran v. Northeast Kingdom Human Services, Opinion No. 31-09WC (August 12, 2009). Should Claimant choose to participate in either the ODMC or a similar in-patient program, she will be entitled to temporary total disability benefits at least as of the date such treatment begins.
14. I cannot determine from the evidence before me whether Claimant also might be entitled to temporary total disability benefits from the time when these were discontinued in August 2007 forward. Her entitlement to such benefits may depend at least in part on whether her failure to pursue functional restoration was because she was not interested in doing so or because Defendant refused to pay. The parties having stipulated not to address this issue at hearing, I cannot yet decide it.
15. Last, I conclude that Claimant is entitled to additional vocational rehabilitation services geared towards accomplishing the goal of returning her to regular, gainful work. I agree with Mr. LeRoy that the purpose of vocational rehabilitation assistance should be to capitalize on whatever work capacity Claimant has. The fact that even with such assistance she still may not find employment that approaches 100% of her pre-injury wages does not disqualify her. Consistent with the spirit of Vermont’s vocational rehabilitation program, so long as the “closest reasonably attainable wage to 100%” still qualifies as regular, gainful employment, services ought to continue. Workers’ Compensation Rule 51.2700.
16. Claimant seeks an award of costs totaling $10,959.98 and attorney fees totaling $34,491.50.2 Ordinarily, a claimant is entitled to an award of only those costs that relate directly to the claims upon which he or she has prevailed. Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003), citing Brown v. Whiting, Opinion No. 7-97WC (June 13, 1997).
17. Here, Claimant failed to prevail on her claim for permanent total disability benefits, but she did succeed in establishing her right to additional temporary total, medical and vocational rehabilitation benefits. Considering her costs in this light, Mr. LeRoy’s fees must be disallowed, as their purpose was primarily to establish her unsuccessful claim. Subtracting these from the total, Claimant is awarded costs of $2,394.92.
2 Claimant’s fee request is based on a billing rate of $90.00 per hour for work performed prior to June 15, 2010. Work performed after that date is based on a rate of $145.00 per hour, in accordance with amended Workers’ Compensation Rule 10.1210. See Erickson v. Kennedy Brothers, Inc., Opinion No. 36A-10WC (March 25, 2011).
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18. 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. The dollar value of Claimant’s recovery here is substantially less than what she would have received had she prevailed on her permanent total disability claim, but there is value nonetheless in the temporary disability, medical and vocational rehabilitation benefits she has been awarded. Under these circumstances I find it appropriate to award Claimant 30 percent of her claimed fees, or $10,347.45.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Medical benefits in conjunction with Claimant’s participation in an ODMC or similar in-patient functional restoration program, pursuant to 21 V.S.A. §640;
2. Temporary total disability benefits for the period of time during which Claimant is enrolled in such a program, pursuant to 21 V.S.A. §642;
3. Vocational rehabilitation benefits pursuant to 21 V.S.A. §641;
4. Costs totaling $2,394.92 and attorney fees totaling $10,347.45.
DATED at Montpelier, Vermont this 31st day of August 2011.
______________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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