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Pamela (Barrett) Simmons v. Landmark College Inc. (February 28, 2013)

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Pamela (Barrett) Simmons v. Landmark College Inc. (February 28, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Pamela (Barrett) Simmons Opinion No. 07-13WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Landmark College, Inc.
For: Anne M. Noonan
Commissioner
State File No. W-59833
OPINION AND ORDER
Hearing held in Montpelier, Vermont on March 1, 2012
Record closed on January 7, 2013
APPEARANCES:
Thomas Bixby, Esq., for Claimant
Bonnie Shappy, Esq., for Defendant
ISSUE PRESENTED:
Did Claimant’s May 2011 cervical surgery constitute reasonable medical treatment for her compensable March 2005 work injury?
EXHIBITS:
Joint Exhibit I: Medical Records
Claimant’s Exhibit 1: First Report of Injury
Claimant’s Exhibit 2: Agreement for Permanent Partial Disability Compensation (Form 22)
Claimant’s Exhibit 3: Ergonomic Work Site Evaluation, February 11, 2008
Claimant’s Exhibit 7: Letter from Attorney Bixby to Claimant, August 18, 2011
Claimant’s Exhibit 8: Summary of invoices from Attorney Bixby, July 31, 2011
Claimant’s Exhibit 9: Handwritten notes taken by Dr. Wieneke
Claimant’s Exhibit 10: Dr. Magnadottir deposition, September 14, 2012
Defendant’s Exhibit A: Curriculum vitae, Dr. Wieneke
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CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Medical benefits pursuant to 21 V.S.A. §640(a)
Vocational rehabilitation benefits pursuant to 21 V.S.A. §641
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
RULING ON POST-HEARING MOTIONS:
Motion to Strike Dr. Wieneke’s Post-Hearing Report
Because Claimant’s expert witness, Dr. Magnadottir, was not available to testify at the formal hearing, Defendant agreed to present its own expert witness, Dr. Wieneke, out of turn, with the proviso that he be allowed an opportunity to comment on Dr. Magnadottir’s testimony once her deposition was proffered post-hearing. Claimant asserts that the written report in which he did so merely restated his hearing testimony and therefore should be stricken as irrelevant. I disagree. The report contained opinion evidence germane to Dr. Magnadottir’s testimony. Claimant’s Motion to Strike is DENIED.
Motion for Directed Verdict
Claimant filed a motion for directed verdict on the issue of causal relationship. A motion for directed verdict was a form of pleading under both the civil and criminal rules of procedure. It has since been abolished and replaced, in the civil context with a Motion for Judgment as a Matter of Law, V.R.C.P. 50(a), and in the criminal context with a Motion for Judgment of Acquittal, V.R.Cr.P. 29. The purpose of such motions is to remove a case from consideration by a jury in situations where judgment for the moving party is required as a matter of law. Where there is no jury, as is the case in administrative proceedings such as this one, a post-hearing motion for judgment serves no purpose. Claimant’s Motion for Directed Verdict is therefore DENIED.
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 as well as the Commissioner’s prior decision in this claim, Barrett-Simmons v. Landmark College, Inc., Opinion No. 35-10WC (November 16, 2010). In addition, judicial notice is taken of the December 9, 2010 vocational rehabilitation report prepared by Claimant’s vocational rehabilitation counselor, Jay Spiegel.
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Claimant’s Work Injury and Prior Medical History
3. Claimant worked for Defendant as a housekeeper. On March 18, 2005 she slipped and fell on a wet floor. Claimant injured her neck and right shoulder in the fall. Defendant accepted this injury as compensable and paid workers’ compensation benefits accordingly.
4. Over the course of the next three years Claimant underwent three surgeries, including fusions at two cervical spine levels. Unfortunately, all of these surgeries failed. Her symptoms, which include pain, muscle spasms and limited range of motion in her neck and right shoulder, have persisted.
5. Following her third surgery, in February 2009 Claimant’s treating neurosurgeon, Dr. Magnadottir, determined that she had reached an end medical result. The Department later approved the parties’ proposed Agreement for Permanent Partial Disability Compensation (Form 22), by the terms of which Claimant received compensation for a 23.5 percent whole person permanent impairment referable to her cervical spine. The compensable injury was described in the Agreement as “right shoulder/upper back, C4-7.”
Claimant’s Fourth Cervical Surgery
6. In February 2011 Claimant returned to Dr. Magnadottir for another neurosurgical consult. She reported that over the course of the prior year her neck pain had been constant and her right shoulder pain had worsened. In addition, her symptoms now involved her right hand. Claimant described dropping things, making messes and burning her right hand while cooking. She had not suffered any new injuries, falls or motor vehicle accidents to account for these new and/or worsening symptoms.
7. Dr. Magnadottir’s physical examination revealed that Claimant exhibited symmetric motor function (except for some give-way weakness in the right deltoid) and symmetric reflexes and sensation, but a substantial amount of myofascial pain1 and tenderness bilaterally in the trapezoids and rhomboids. A review of Claimant’s cervical spine and right shoulder MRI at this office visit showed tendonitis and significant narrowing of the C5 foramen.
8. Dr. Magnadottir discussed Claimant’s potential treatment options with her. These included exercises, physical therapy and surgery. Claimant took some time to decide, and ultimately chose to pursue surgery. Once her decision was made, Dr. Magnadottir described Claimant as being “very strong” in her desire to proceed in this manner. I find that Claimant elected surgical treatment with full knowledge and understanding that it would not alleviate her major complaint of persistent myofascial right shoulder pain.
1 Myofascial pain is muscular pain that is very non-specific and difficult to diagnose. It is a non-radicular pain that does not follow a nerve root pattern. The affected muscle often has “trigger points,” that is, hyper-irritable spots and associated palpable nodules in skeletal muscle.
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9. In May 2011, Claimant underwent the fourth surgery, a procedure to decompress the C5 nerve root. As expected, the surgery did not alleviate the persistent myofascial pain in her right shoulder. The symptoms in her right hand have abated, though it is unclear why. Medically, there is no reason why nerve compression at the C5 level would have resulted in the symptoms Claimant reported, and therefore no reason why surgical decompression would have caused them to resolve.
Expert Medical Opinions
(a) Dr. Magnadottir
10. Dr. Magnadottir testified by deposition. She is a board certified neurosurgeon. She performed Claimant’s third cervical surgery in 2009, and her fourth surgery (the subject of the pending compensability dispute) in May 2011. In formulating her opinion as to the reasonableness of the latter surgery, Dr. Magnadottir did not review Claimant’s entire medical history, but rather relied on her knowledge of Claimant’s condition since she began treating her.
11. In Dr. Magnadottir’s opinion, Claimant’s May 2011 surgery was causally related to her compensable work injury. Claimant suffered from disc disease at the C5, C6 and C7 levels, and had undergone cervical fusion at the C5-6 level. According to the accepted medical literature, disc disease in one joint significantly contributes to the development of disc disease in adjacent joints as well.
12. As to the medical necessity of a fourth surgery, Dr. Magnadottir relied primarily on the fact that Claimant’s recent MRI showed her C5 foramen to be significantly narrowed. With this finding in mind, Dr. Magnadottir anticipated that repeat surgery at that level might relieve at least some of Claimant’s pain. However, Dr. Magnadottir did not refer Claimant for electrodiagnostic studies in order to determine whether there were objective signs of nerve damage at C5. Nor did she recommend that Claimant undergo diagnostic epidural injections in the C5 root, to see if she would experience any relief from pain at this root level. Dr. Magnadottir reasoned that even if there was relief, it would be short lived.
13. Dr. Magnadottir acknowledged that the May 2011 surgery would not address the persistent myofascial pain in Claimant’s right shoulder. She also acknowledged that Claimant’s pain complaints were all subjective in nature. Last, Dr. Magnadottir acknowledged that damage to the C5 nerve root would not in any way manifest itself in the type of hand symptoms Claimant was reporting. I find that these facts significantly undermine Dr. Magnadottir’s opinion that Claimant’s May 2011 surgery constituted reasonable and necessary medical treatment.
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(b) Dr. Wieneke
14. At Defendant’s request Dr. Wieneke, a board certified orthopedic surgeon, performed an independent medical examination of Claimant for the purpose of determining whether a fourth surgery would have constituted reasonable treatment for her 2005 work injury. Dr. Wieneke had evaluated Claimant previously and therefore was familiar with her medical history.2 Before performing his most recent examination, Dr. Wieneke also reviewed all of Claimant’s past and current medical records.
15. In Dr. Wieneke’s opinion, Claimant’s fourth surgery did not constitute reasonable and necessary medical treatment. He based this opinion on the following:
• Prior to 2011, all of Claimant’s EMG studies were negative, indicating no C5 nerve root damage that would warrant surgery;
• There was no current electrodiagnostic evidence of radiculopathy to confirm Claimant’s current complaints of pain;
• Claimant’s give-way weakness in her right deltoid was a Waddell sign, which suggested a psychological component to her pain complaints;
• The C5 nerve root distribution does not manifest itself in the hand, and therefore damage or compression at that level would not explain Claimant’s most recent symptoms; and
• Claimant had already undergone three major cervical surgeries with virtually no improvement and little likelihood of success with a fourth surgery.
16. I find Dr. Wieneke’s review and knowledge of Claimant’s medical condition extensive and his opinions well supported by objective evidence.
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 Dr. Wieneke evaluated Claimant’s case on four different occasions. He performed independent medical examinations of Claimant in 2006, 2009 and October 2011. He performed a records review in May 2011.
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2. At issue here is whether Claimant’s May 2011 surgery is compensable. Vermont’s workers’ compensation statute obligates an employer to pay only for those medical treatments that are determined to be both “reasonable” and causally related to the compensable injury. 21 V.S.A. §640(a); MacAskill v. Kelly Services, Opinion No. 04-09WC (January 30, 2009). The commissioner has discretion to determine what constitutes “reasonable” medical treatment given the particular circumstances of each case. Id. A treatment can be unreasonable either because it is not medically necessary or because it is not related to the compensable injury. Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January 20, 2011).
3. Here, the condition for which Claimant sought surgery in 2011 involved significant narrowing of her C5 foramen and persistent right shoulder pain. Both of these conditions were well within the terms of the approved Form 22 agreement pursuant to which Defendant paid permanency benefits in 2009. Claimant did not suffer any other injuries subsequently, such as a motor vehicle accident or new slip and fall incident, that might account for her ongoing and/or worsening symptoms. Considering all of the credible evidence, I conclude that the neck and right shoulder pain for which she sought additional treatment in 2011 was causally related to her accepted work injuries.
4. Having concluded that Claimant’s need for ongoing treatment is causally related to her compensable work injuries, I next consider whether the treatment at issue was medically necessary. This determination is based on evidence establishing the likelihood that it would improve the patient’s condition, either by relieving symptoms and/or by maintaining or increasing functional abilities. Cahill v. Benchmark Assisted Living, Opinion No. 13-12WC (April 27, 2012); Quinn v. Emery Worldwide, Opinion No. 29-00WC (September 11, 2000).
5. Conflicting medical testimony was offered as to the reasonableness of Claimant’s fourth cervical surgery. 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).
6. Here, based primarily on the second and third factors, I conclude that Dr. Wieneke’s opinion was more persuasive than Dr. Magnadottir’s. Dr. Wieneke had the advantage of reviewing Claimant’s entire medical history. More important, his opinions were clear, thorough and corroborated by objective evidence. Given that (1) the C5 nerve root distribution does not manifest itself in the hand; (2) no objective tests were performed to identify the C5 level as the pain generator for Claimant’s complaints; and (3) surgery clearly would not relieve the myofascial pain in Claimant’s shoulder, Dr. Wieneke credibly concluded that surgery was not a reasonable treatment option for the symptoms of which she complained. The fact that Claimant already had undergone three failed surgeries with no significant pain relief was a strong contraindication as well.
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7. In contrast, given both Claimant’s medical history and the nature of her ongoing complaints, Dr. Magnadottir failed to explain adequately why a fourth surgery was justified.
8. I conclude that Claimant has failed to sustain her burden of proving that her May 2011 cervical surgery constituted reasonable medical treatment, such that Defendant should be obligated to pay for it. Therefore, her claim for workers’ compensation benefits must fail.
9. As Claimant has failed to prevail on her claim for benefits, she is not entitled to an award of costs or attorney fees.
ORDER:
Based on the foregoing Findings of Fact and Conclusions of Law, Claimant’s claim for workers’ compensation benefits referable to her May 2011 cervical surgery is hereby DENIED.
DATED at Montpelier, Vermont this 28th day of February 2013.
________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Retez Johnson v. Oly Equinox Holding Company (August 5, 2010)

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Retez Johnson v. Oly Equinox Holding Company (August 5, 2010)

STATE OF VERMONT
DEPARTMENT OF LABOR

Retez Johnson Opinion No. 25-10WC

v. By: Phyllis Phillips, Esq.
Hearing Officer
Oly Equinox Holding Company
For: Valerie Rickert
Acting Commissioner

State File No. W-52247

OPINION AND ORDER

Hearing held in Montpelier, Vermont on February 5, 2010
Record closed on May 14, 2010

APPEARANCES:

Amy Palmer-Ellis, Esq., for Claimant
Corina Schaffner-Fegard, Esq., for Defendant

ISSUE PRESENTED:

Is Claimant entitled to a spinal cord stimulator trial as reasonable and necessary medical treatment for his September 5, 2004 work-related injury?

EXHIBITS:

Joint Exhibit I: Medical records

Claimant’s Exhibit 1: Preservation deposition of Dr. Al-Botros, February 2, 2010

Defendant’s Exhibit A: Curriculum vitae, Leon Ensalada, M.D., M.P.H.
Defendant’s Exhibit B: Dr. Ensalada diagram
Defendant’s Exhibit C: Preservation deposition of Dr. Drukteinis, February 25, 2010

CLAIM:

Medical benefits pursuant to 21 V.S.A. §640
Costs and attorney fees pursuant to 21 V.S.A. §678

FINDINGS OF FACT:

1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.

2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.

3. Claimant worked for Defendant as a sous chef at the Equinox Resort. On September 5, 2004 he was injured when a 300-pound warming cart toppled out of a catering truck and struck him in the area of his right hip, upper thigh and groin.

Claimant’s Prior Medical and Psychological History

4. Prior to his employment for Defendant, Claimant had both a varied work history and a fairly extensive history of work-related injuries as well. The most significant of these occurred in July 1997, when he was working on a Mississippi River cruise ship, the Delta Queen. According to the contemporaneous medical records, Claimant fell approximately 6 to 8 feet from the boat to the water, striking his head on the way down. Bystanders reported that he was pulled from the water within one minute, and remained alert throughout.

5. Initially Claimant was diagnosed with a post-concussive headache syndrome as a result of the Delta Queen incident. Later, in August and September 1997 he underwent an evaluation by Dr. Whatley, a clinical neuropsychologist, who diagnosed post-traumatic stress disorder as well.

6. Dr. Whatley administered a number of psychological tests in the course of his 1997 evaluation, including the Minnesota Multiphasic Personality Inventory-2 (MMPI-2). Notably, Dr. Whatley observed that individuals with MMPI-2 personality profiles similar to Claimant’s “often react to stress by developing physical symptoms,” and “demonstrate an extreme concern over their bodily functions.” Dr. Whatley concluded that Claimant was suffering from severe emotional distress and likely would need long-term individual psychotherapy.

7. Notwithstanding Dr. Whatley’s recommendations, Claimant appears not to have sought treatment for any emotional or psychological symptoms until June 1999, nearly two years later. At that point, he complained to Dr. Smalley, the neurologist who had treated him in the months following his 1997 injury, of insomnia, headaches, anxiety, depression, panic attacks and memory loss. Claimant also reported nighttime “spells,” but EEG monitoring revealed these to be pseudo seizures attributable to behavioral and emotional issues rather than to any abnormal brain activity. Dr. Smalley prescribed various psychotropic medications, including Xanax, Zoloft and Seroquel, to address Claimant’s symptoms, and referred him again to Dr. Whatley for further psychiatric treatment.

8. Claimant underwent individual psychotherapy with Dr. Whatley from November 1999 through March 2000, and with another psychiatrist, Dr. Dancer, from August 2000 until January 2001.

Claimant’s Medical Course following the September 5, 2004 Work Injury

9. Claimant initially treated at the Southwestern Vermont Medical Center Emergency Department following his September 5, 2004 work injury. He complained of severe right hip pain and was diagnosed with a hip contusion. Extensive imaging studies were negative for any fractures. Clinical examination did not reveal any signs of trauma around Claimant’s abdomen, genitals or peroneal region.

10. By October 2004, however, Claimant had begun to complain of worsening groin pain, radiating to his testicles, penis and upper thigh. The etiology of these symptoms has remained unclear. Most diagnoses have focused on a neuropathic source, likely related to ilioinguinal nerve damage that occurred as a result of the September 2004 work injury.

11. Claimant has undergone an extensive course of treatment for his symptoms, including physical therapy, epidural steroid injections, nerve blocks, acupuncture, inguinal hernia surgery and behavioral medicine counseling, all to no avail. At this point, his pain has become chronic. Claimant has been prescribed large dosages of Neurontin to treat his nerve pain, as well as various narcotic medications for pain management, but still routinely quantifies his pain as a 9 on a 10-point analog pain scale. He has not worked since the injury. He walks with a cane and testified that his life is stressful and painful.

12. In June 2007 the Department approved the parties’ Form 14 Settlement Agreement. This resolved Claimant’s claim for indemnity benefits on a full and final basis, but left open his entitlement to further medical and/or vocational rehabilitation benefits causally related to the September 2004 work injury.

Treatment Recommendation for Spinal Cord Stimulator

13. During the summer of 2007 Claimant and his wife moved to Oklahoma so that they could be closer to family and friends. Once there, Claimant began treating with Dr. Alhaj, a board-certified pain management specialist.

14. Among Dr. Alhaj’s initial treatment recommendations was that Claimant be considered for a spinal cord stimulator trial. A spinal cord stimulator is a surgically implanted electronic device that blocks the transmission of painful sensations from a peripheral nerve to the brain by transmitting a tingling sensation up the spinal cord instead.

15. Prior to implantation of a spinal cord stimulator, candidates first must undergo a psychological evaluation to determine if any psychological or emotional factors exist that might reduce the device’s efficacy. At Dr. Alhaj’s referral, Claimant underwent the required psychological evaluation with Dr. Hawkins, a clinical psychologist, in September 2007. Dr. Hawkins administered both the MMPI-2 and a pain inventory test. Based on this testing, he concluded that while Claimant exhibited clinical levels of anxiety and depression, these were “within normal limits for pain patients.” In Dr. Hawkins’ opinion, therefore, these findings did not disqualify Claimant from consideration for a spinal cord stimulator.

16. Dr. Hawkins did not provide the raw test data from which his conclusions were drawn, nor did he describe Claimant’s test results in any detail. There is no indication, furthermore, that he was aware of Claimant’s past medical or psychiatric history, particularly his diagnosis and treatment for post-traumatic stress disorder in the years following the 1997 Delta Queen incident.

Expert Medical Opinions in Opposition to Spinal Cord Stimulator

17. At Defendant’s request, both Dr. Ensalada and Dr. Drukteinis conducted medical records reviews and rendered opinions as to whether Claimant is an appropriate candidate for a spinal cord stimulator. Dr. Ensalada is board certified in anesthesiology and pain management and has substantial experience with a range of interventional treatments for chronic pain, including spinal cord stimulators. Dr. Drukteinis is board certified in psychiatry and neurology. Neither doctor personally evaluated Claimant prior to rendering their opinions, but both did review his complete medical file dating back to 1988.

18. In Dr. Ensalada’s opinion, Claimant is not an appropriate candidate for a spinal cord stimulator trial. In support of this opinion, Dr. Ensalada enumerated both scientific and individual factors that he feels effectively disqualify Claimant from consideration.

19. According to Dr. Ensalada, there is as yet no scientific basis for concluding that a spinal cord stimulator is a safe and effective treatment for the symptoms from which Claimant suffers. The device has been well-studied primarily in conjunction with two conditions – failed back surgery syndrome and complex regional pain syndrome – but there is no evidence to support its use for treatment of genitourinary or groin pain. Given the anatomy of the spinal cord, the stimulator works well for patients who have nerve root pain radiating to a single extremity, be it an arm or a leg. In Dr. Ensalada’s opinion, however, it would be very difficult to implant the device’s electrodes in such a way as to obtain coverage in the trunk, groin or pelvic area.

20. Beyond that concern, from his review of the medical records Dr. Ensalada concluded that individual factors related to Claimant’s psychological and behavioral makeup also made him an inappropriate candidate for a spinal cord stimulator. Dr. Ensalada noted what he believed to be evidence of Claimant’s long-standing tendency to exaggerate his response to physical injuries. He characterized this tendency as a somatoform disorder – a mental or behavior disorder in which a person unconsciously uses physical symptoms for psychological purposes.1 In Dr. Ensalada’s opinion, treatment with a spinal cord stimulator is specifically contraindicated in patients with that psychological profile.

21. Based on his own review of the medical records, Dr. Drukteinis also concluded that Claimant was not a suitable spinal cord stimulator candidate. In his opinion, Claimant’s treatment records suggested a strong psychosomatic component to his symptoms. In addition, the psychological tests that Dr. Whatley had administered following Claimant’s 1997 injury showed both a “significant psychological disturbance” and a “troubling personality makeup.” According to Dr. Drukteinis, this information warranted “extreme caution” for any invasive treatment, including a spinal cord stimulator.

22. In Dr. Drukteinis’ opinion, a longitudinal history of the patient is crucial to understanding how best to treat a pain disorder. For that reason, he specifically discounted Dr. Hawkins’ report in favor of a spinal cord stimulator trial. Because Dr. Hawkins apparently was not aware of Claimant’s extensive prior medical and psychological history, Dr. Drukteinis found his assessment incomplete and his conclusions unsustainable.

23. Claimant presented evidence from his current treating psychiatrist, Dr. Al-Botros, who testified that in his opinion Claimant does not suffer from somatoform disorder and that his current psychological state is “quite stable.” Dr. Al-Botros acknowledged, however, that his only role in Claimant’s current treatment is to prescribe and monitor his medication regimen. He does not provide psychotherapy. Dr. Al-Botros also acknowledged that he has not reviewed Claimant’s prior medical records and was not aware of any previous injuries or psychological treatment. Dr. Al-Botros was not identified as an expert on the specific question whether Claimant was an appropriate candidate for a spinal cord stimulator, and therefore did not express any opinion on that issue.

1 Somatoform disorder is not malingering. Malingering involves the voluntary manipulation of physical symptoms for external gain. With somatoform disorder, the manipulation is unconscious, involuntary and internally motivated.

CONCLUSIONS OF LAW:

1. At issue in this claim is whether Defendant should be obligated to pay for Claimant’s proposed spinal cord stimulator trial. Vermont’s workers’ compensation statute obligates an employer to pay only for those medical treatments that are determined to be both “reasonable” and causally related to the injured worker’s compensable injury. 21 V.S.A. §640(a). The Commissioner has discretion to determine what constitutes “reasonable” medical treatment given the particular circumstances of each case. The claimant bears the burden of proof on this issue. MacAskill v. Kelly Services, Opinion No. 04-09WC (January 30, 2009); P.M. v. Bennington Convalescent Center, Opinion No. 55-06WC (January 2, 2007).

2. Here, Claimant relies on the opinions of his treating physician, Dr. Alhaj, and Dr. Alhaj’s consulting psychologist, Dr. Hawkins, in support of his assertion that a spinal cord stimulator is an appropriate treatment option for him to pursue. Defendant relies on the opinions of its expert medical witnesses, Dr. Ensalada and Dr. Drukteinis, to establish that Claimant is not an appropriate candidate for the device.

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 (Sept. 17, 2003).

4. I find Dr. Ensalada’s and Dr. Drukteinis’ opinions to be the most credible here. Dr. Ensalada clearly described both the scientific and the individual factors that, taken together, disqualify Claimant as an appropriate spinal cord stimulator candidate. Dr. Drukteinis concurred, and pinpointed specific elements in Claimant’s psychological history to corroborate his opinion. Although neither doctor personally examined or evaluated Claimant, I find that their conclusions are well-supported nonetheless.

5. In contrast, the summary nature of both Dr. Alhaj’s and Dr. Hawkins’ conclusions makes it difficult for me to understand the basis for their opinions. The fact that neither undertook any comprehensive review of Claimant’s previous medical and psychological history prior to stating their positions further undermines their credibility. I do not doubt that they have their patient’s best interests at heart. Nevertheless, I cannot impose upon Defendant the obligation to pay for an invasive medical procedure that, based on the evidence before me, appears unlikely to succeed.

6. I conclude, therefore, that Claimant has failed to sustain his burden of proving that a spinal cord stimulator trial constitutes reasonable and necessary treatment for his September 5, 2004 work injury.

ORDER:

Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for medical benefits associated with a proposed spinal cord stimulator trial is hereby DENIED.

DATED at Montpelier, Vermont this _____ day of August 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.

 

Kathleen Lackey v. Brattleboro Retreat (April 21, 2010)

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

Kathleen Lackey v. Brattleboro Retreat (April 21, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Kathleen Lackey Opinion No. 15-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Brattleboro Retreat
For: Patricia Moulton Powden
Commissioner
State File No. AA-50459
OPINION AND ORDER
Hearing held in Montpelier, Vermont on January 19, 2010
Record closed on February 3, 2010
APPEARANCES:
John Mabie, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant’s proposed cervical surgery reasonable and necessary treatment causally related to her July 8, 2008 work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Curriculum vitae, Hulda Magnadottir, M.D.
CLAIM:
Medical benefits pursuant to 21 V.S.A. §640
Costs and attorney fees pursuant to 21 V.S.A. §678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
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3. Claimant worked as a charge nurse at Defendant’s in-patient mental health treatment facility. On July 8, 2008 she was responding to an emergency situation involving a patient who had tried to hang herself. The patient collapsed while Claimant was escorting her back to her room. As Claimant eased the patient to the floor, she felt pain both in her lower back and across her shoulder blades.
4. Claimant had a prior history of occasional low back pain, and over the course of the ensuing weeks her low back pain resolved back to its pre-injury baseline. Claimant’s mid- and upper back pain did not resolve, however. She experienced persistent pain, stiffness and significantly reduced range of motion in her neck, with numbness and tingling radiating down both arms and into her hands and fingers.
5. Claimant’s symptoms failed to respond to conservative therapy. An MRI of her cervical spine revealed degenerative changes at multiple levels, most notably C5-6 and C6-7. In October 2008 she consulted with Dr. McLellan, an occupational medicine specialist. Dr. McLellan suggested a cervical epidural steroid injection, but Claimant was reluctant to proceed. Instead, she sought a referral to a neurosurgeon, Dr. Magnadottir, for evaluation of possible surgical options.
6. Dr. Magnadottir first evaluated Claimant in February 2009. Her office note reflects that Claimant was complaining of pain “not so much in the neck itself” but rather in her shoulders and mid-back, radiating down both arms and into her fingers bilaterally. Dr. Magnadottir attributed Claimant’s shoulder and thoracic region symptoms to myofascial pain, but felt that Claimant consistently described as well a C6-7 radicular pattern to the pain in her arms, hands and fingers.
7. Given the radicular nature of Claimant’s upper extremity symptoms, Dr. Magnadottir suggested cervical disc fusion surgery as an appropriate treatment option. She stressed, however, that such a surgery likely would not have a significant impact on the myofascial-type pain Claimant was experiencing in her neck, upper back and shoulders. It might help in that regard, but there could be no guarantees.
8. Dr. Magnadottir acknowledged that it is difficult to predict how positive the surgical outcome will be in situations where a patient’s symptoms are a mixture of both radicular and myofascial pain. Nevertheless, she expressed confidence that the surgery would alleviate the radiating pain and paresthesias in Claimant’s arms, hands and fingers. Dr. Magnadottir testified that the surgery in question is one of the more common ones she performs, that she is very selective in choosing the patients to whom she offers it, and that it would be very unusual for a patient not to derive at least some benefit from it.
9. Dr. Magnadottir has reevaluated Claimant on two occasions since her initial evaluation in February 2009. She continues to believe that Claimant is an appropriate surgical candidate.
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10. Defendant’s medical expert, Dr. Ahn, disagrees. Dr. Ahn, an orthopedic surgeon, conducted an independent medical evaluation in April 2009. Noting that Claimant’s MRI revealed disc degeneration at four levels in her cervical spine, Dr. Ahn predicted that Dr. Magnadottir’s proposed fusion surgery, which would address only two levels, was unlikely to be successful. Dr. Ahn also questioned whether the proposed surgery would meet Claimant’s expectations. According to him, Claimant reported that her neck symptoms were as problematic as her arm symptoms. In Dr. Ahn’s opinion, surgery might help address the latter, but would be ineffective at relieving the former.
11. Both Dr. Magnadottir and Dr. Ahn testified that the cervical epidural steroid injection that Dr. McLellan proposed in October 2008 might be a viable treatment option for Claimant. According to Dr. Magnadottir, injections are not a pre-requisite to surgery, but merely another option for her to consider. In Dr. Ahn’s opinion, such treatments as injections, chronic pain management and/or behavioral therapy pose less of a risk and present a greater likelihood of success than surgery does.
12. Claimant testified credibly at the formal hearing that she understands that the primary purpose of Dr. Magnadottir’s proposed surgery is to address her radicular symptoms, not her myofascial pain. In that regard, her expectations appear to be realistic. Claimant testified that she experiences constant pain in her upper extremities and shooting pains down her arms and into her hands and fingers. Her fingers are consistently numb, and she often drops things while holding them. On a typical day she can engage in mild activity for approximately two and a half hours, after which she starts to lose function in her hands. She experiences frequent muscle spasms in her neck, forearms, hands and fingers. Sometimes her hands freeze up and she cannot use them at all.
13. Claimant expressed hope that Dr. Magnadottir’s proposed surgery will alleviate her symptoms enough so that she can both increase her level of functioning and reduce her reliance on narcotic medications for pain relief. This is a critical consideration for someone in her profession, as for the most part registered nurses are precluded from providing direct patient care if they are taking narcotic medications.
14. In their written reports, both Dr. Magnadottir and Dr. Ahn concluded that Claimant’s current symptoms most likely represent an exacerbation of her underlying degenerative disc disease causally related to her July 2008 work injury. Dr. Magnadottir reaffirmed this opinion in her formal hearing testimony. In his testimony, Dr. Ahn stated that Claimant’s current symptoms were driven by a clearly degenerative condition that was ongoing, and in that sense the proposed surgery was not causally related.
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CONCLUSIONS OF LAW:
1. Vermont’s workers’ compensation statute obligates an employer to pay only for those medical treatments that are determined to be both “reasonable” and causally related to the compensable injury. 21 V.S.A. §640(a); MacAskill v. Kelly Services, Opinion No. 04-09WC (January 30, 2009). The Commissioner has discretion to determine what constitutes “reasonable” medical treatment given the particular circumstances of each case. Id. A treatment can be unreasonable either because it is not medically necessary or because it is not related to the compensable injury. Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January 20, 2010).
2. The treatment dispute at issue here is straightforward. Claimant’s treating physician, Dr. Magnadottir, believes that cervical disc fusion surgery likely will alleviate at least some of Claimant’s most troublesome symptoms, and that therefore it is medically appropriate to proceed. Defendant’s medical expert, Dr. Ahn, believes that disc fusion surgery likely will be unsuccessful, and that therefore it should not be attempted.
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. Balancing all of these factors, I conclude that Dr. Magnadottir’s opinion is the most persuasive. Dr. Magnadottir credibly described both the anticipated benefits of the proposed disc fusion surgery and its expected limitations. She is well experienced in surgeries of this nature and utilized a thoughtful selection process in determining that Claimant was an appropriate candidate. I accept as truthful her testimony that she would not offer Claimant a surgical option if she were not reasonably confident of a successful outcome.
5. Equally important, Claimant credibly testified that she understood which symptoms the surgery was designed to address, and which ones it likely would not alleviate. Claimant also credibly articulated the impact her current symptoms have had on her ability to function, both personally and professionally. The impact has been significant, and Claimant deserves the opportunity to improve her situation by undergoing the surgery that her treating physician has offered.
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6. Although I am mindful of Dr. Ahn’s misgivings, in the end I am unconvinced by his opinion. Certainly the proposed surgery will not cure all of Claimant’s symptoms, but that does not render it an unreasonable treatment option. Indeed, the same might be said for the treatment options Dr. Ahn identified as well – injections, chronic pain management and/or behavioral therapy. The discretion I wield under the statute is limited to determining whether a treatment is “reasonable” under the circumstances. It does not necessarily extend to mandating which among a variety of reasonable treatment options a claimant might choose.
7. Nor do I accept Dr. Ahn’s testimony that the proposed surgery is causally related to Claimant’s underlying degenerative disc disease rather than to her July 2008 work injury. Both Dr. Ahn and Dr. Magnadottir acknowledged that Claimant’s underlying condition had been exacerbated by her work injury. That work injury precipitated a progression of worsening symptoms, which has led directly to the current surgical treatment recommendation.
8. I conclude, therefore, that Dr. Magnadottir’s proposed cervical disc fusion surgery constitutes reasonable and necessary treatment causally related to Claimant’s July 2008 work injury.
9. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $1,398.08 and attorney fees totaling $8,600.85. An award of costs to a prevailing claimant is mandatory under the statute. Of the costs submitted, however, $1,125.00 represents Dr. Magnadottir’s charge for 1.5 hours of formal hearing testimony, an hourly rate of $750.00. According to Workers’ Compensation Rule 40.110, such charges are limited to $300.00 per hour. The maximum allowable charge for Dr. Magnadottir’s testimony, therefore, is $450.00. After deducting the excess charge, Claimant is awarded $723.08 in allowable costs. 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. All medical costs associated with the proposed cervical disc fusion surgery, including but not limited to hospital and physician charges and reasonable follow-up care;
2. Costs totaling $723.08 and attorney fees totaling $8,600.85.
DATED at Montpelier, Vermont this 21st 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.

Violet Veillette v. Pompanoosuc Mills Corp (September 14, 2012)

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

Violet Veillette v. Pompanoosuc Mills Corp (September 14, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Violet Veillette Opinion No. 23-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Pompanoosuc Mills Corp.
For: Anne M. Noonan
Commissioner
State File No. U-52073
OPINION AND ORDER
Hearing held in Montpelier on May 4, 2012
Record closed on July 10, 2012
APPEARANCES:
Charles Powell, Esq., for Claimant
Keith Kasper, Esq., for Defendant
ISSUE PRESENTED:
Is Defendant obligated to pay for various medical services and supplies, including prescription pain medications, injections, physical therapy, chiropractic treatment and/or proposed cervical fusion surgery, as reasonable treatment for Claimant’s compensable March 4, 2004 work injuries?
EXHIBITS:
Joint Exhibit I: Medical records (Volume 1)
Joint Exhibit II: Medical records (Volume 2)
Joint Exhibit III: Stipulation
Claimant’s Exhibit 1: Curriculum vitae, Melynda Wallace, MSN, CRNA
Claimant’s Exhibit 2: Curriculum vitae, Sara Young-Xu, MD
Claimant’s Exhibit 3: Curriculum vitae, Joseph Phillips, MD, Ph.D.
Claimant’s Exhibit 4: DVD of Dr. Boucher examination, January 11, 2011
Claimant’s Exhibit 5: 6/29/2010 MRI, sagittal image #8
Claimant’s Exhibit 6: 6/29/2010 MRI, axial image #8
Claimant’s Exhibit 7: 6/29/2010 MRI, axial image #9
Defendant’s Exhibit A: Curriculum vitae, William Boucher, MD
Defendant’s Exhibit B: Curriculum vitae, Herbert Cares, MD
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CLAIM:
Medical benefits pursuant to 21 V.S.A. §640(a)
Costs and attorney fees pursuant to 21 V.S.A. §675
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant worked at Defendant’s furniture manufacturing facility. Her duties included sanding, spraying and staining pieces of furniture, and also carrying them to and from various locations within the building.
4. On March 5, 2004 Claimant tripped over a piece of metal at work while carrying a drawer. She fell sideways, still holding the drawer. Her right shoulder and the right side of her neck hit the drawer as it in turn hit the floor. Claimant suffered contusions and pain in her left leg, lower back, neck and right arm. Defendant accepted these injuries as compensable and began paying workers’ compensation benefits accordingly.
5. Claimant treated initially with Dr. Young-Xu, her primary care provider. Over the course of time her symptoms, which included primarily right-sided neck pain radiating into her shoulder blades as well as low back pain radiating into her right hip, have become chronic, and somewhat diffuse as well. Prior to her work injury Claimant had no previous medical history of any such symptoms.
6. As to her cervical and upper extremity symptoms, Claimant has undergone various diagnostic studies, including both MRI imaging and electrodiagnostic testing. The earliest studies, completed in the first few months following her injury, revealed advanced degenerative disc disease at the C5-6 level as well as a large disc herniation on the left at C6-7. Subsequent MRI studies in 2005, 2006 and 2010 yielded similar findings. However, electrodiagnostic studies failed to reveal any focal peripheral nerve involvement or dermatomal distribution to account for the radicular symptoms in Claimant’s right shoulder and arm.
7. Various diagnostic studies of Claimant’s lumbar spine have likewise failed to reveal a clear-cut source for her radicular complaints, with no evidence of disc herniation or nerve root involvement apparent.
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8. Although the degenerative disc disease in Claimant’s cervical spine probably preexisted her injury, it was entirely asymptomatic. The C6-7 disc herniation, which was an acute injury caused by her work-related fall, likely affected the biodynamics of the spine at the adjacent C5-6 level as well. Over time, bone spurs continued to grow at both levels. Bone spurs sometimes represent a chronic reaction to an acute injury – they are the body’s way of “fixing” a painful area of the spine by immobilizing it even further.
9. It also is likely that at least some of Claimant’s now chronic pain is neuropathic in nature. Neuropathic pain occurs when the neural processors in the brain become hypersensitive following a primary injury. As a result, the threshold for generating pain falls at the same time that its duration, amplitude and spatial distribution increase.1 Unlike nociceptive pain (pain that results directly from sensing noxious stimuli) or inflammatory pain (tenderness that activates the body’s immune system to help damaged tissues heal), neuropathic pain is a separate, maladaptive disease of the nervous system.2 Curing such pain is very difficult; rather, the best hope is often simply to manage it.
Treatment with Prescription Pain Medications
10. Claimant has undergone several conservative therapies for her chronic pain, beginning with narcotic pain medications prescribed by Dr. Young-Xu only weeks after her injury. Currently her pain medication regimen includes fentanyl (a synthetic morphine), gabapentin (for nerve pain), Flexeril (a muscle relaxant), amtriptyline (a sleep aid) and Zoloft (an anti-depressant).
11. Claimant testified credibly that the fentanyl patches she currently uses provide noticeable pain relief with few if any side effects. As such, they are more effective than any of the other narcotic pain medications she attempted previously, including Vicodin and oxycodone. On those rare occasions when she forgets to apply a patch, her pain markedly worsens and her ability to perform such basic activities as showering, washing her hair and doing the dishes is impaired.
12. The goal of prescription pain control in chronic pain patients is not to eliminate the pain altogether, but rather to allow for some increased function and improved quality of life. Research suggests that it is often efficacious to rotate a patient’s narcotic medications, and also to titrate dosages to the lowest level possible without sacrificing adequate pain control. According to Dr. Young-Xu, the medications she currently prescribes, including fentanyl, maintain Claimant’s pain at a tolerable level, but still not to the point where it should be considered well controlled. For that reason, and also because there is no evidence that Claimant has ever misused or abused any of the drugs she has been prescribed, Dr. Young-Xu does not believe it would be appropriate either to reduce her dosage or to taper her off of them. I find this analysis persuasive.
Injections
1 Woolf, CJ, “What is this thing called pain?”, J.Clin.Invest. 2010; 120(11):3742-3744 at p. 3744; Joint Exhibit II at 674.
2 Id. at p. 3742; Joint Exhibit II at 672.
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13. In addition to prescription pain medications, Claimant has at various times undergone different types of injections in an effort to manage her cervical and lumbar pain. Initially these were administered by Dr. Frazer; since June 2006 Melynda Wallace, a certified nurse anesthetist, has been the treating provider. Ms. Wallace holds a master’s degree in anesthesia and is certified as a fellow of the American Academy of Pain Management. She is an experienced pain practitioner, whose current focus is on chronic pain management.
14. The injections Ms. Wallace has administered in Claimant’s case involve the use of epidural steroids. Their purpose is not to fix the pain generator in either the cervical or lumbar spine per se, but rather to provide some measure of extended pain relief. Epidural steroid injections reduce inflammation in the structures of the spine on a cellular level, such that the structures cease sending constant pain signals to the brain, at least for a time.
15. The medical records document that Claimant derived measurable pain relief from the cervical injections Ms. Wallace administered. She underwent a series of three injections between June 2006 and February 2007, a single injection in March 2009 and then another in May 2010. In Ms. Wallace’s opinion, which I find credible, an injection ought to provide at least 30 to 45 days of pain relief in order to justify regularly repeating the procedure. The interval pain relief Claimant realized more than met this standard.3
16. Ms. Wallace also has significant experience with managing chronic pain pharmaceutically. She fully endorsed Dr. Young-Xu’s medication regimen, including the use of both fentanyl and gabapentin. She noted that while Claimant’s dosage levels have not decreased, they have not increased in many years either. This is an indication of their ongoing effectiveness in controlling Claimant’s symptoms.
Physical Therapy and Chiropractic Manipulation
17. Claimant has at various times undergone courses of physical therapy as well as chiropractic manipulations as treatment for both her cervical and lumbar symptoms. According to the medical records, the last course of physical therapy occurred in 2006, and the last chiropractic treatment was in 2010. The medical records do not document any currently pending prescription or referral for ongoing treatment in either discipline.
18. Ms. Wallace testified in general terms as to the benefits of physical therapy as a means of maintaining function, and also as to the reasonableness of chiropractic manipulation directed at Claimant’s lumbar spine. The extent of Ms. Wallace’s specific expertise in these areas is unclear, and therefore I find her opinion on this issue of limited value.
3 The medical records document similar relief of Claimant’s lumbar pain as a result of Ms. Wallace’s injections.
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Surgery
19. Claimant first considered the possibility of treating her cervical symptoms surgically in September 2004. At Dr. Young-Xu’s referral, she underwent an evaluation with Dr. Phillips, a neurosurgeon. Dr. Phillips determined at that time that surgery was “definitely an option” in the event that non-surgical interventions failed. As Claimant preferred continued conservative management of her symptoms, she opted against this approach.
20. Dr. Phillips next examined Claimant in April 2006. Both her symptoms and her MRI findings were essentially unchanged from his prior exam, and again he offered Claimant the same surgical option he had previously. Again, Claimant opted to continue with conservative management of her symptoms.
21. Dr. Phillips again evaluated Claimant in October 2010. As before, he found her MRI findings essentially unchanged from prior studies, and again he offered the same surgical option.
22. The surgery Dr. Phillips has proposed, a C5-6 and C6-7 discectomy and fusion, is designed to address Claimant’s axial pain, that is, the pain she feels in her neck itself. It likely will not alleviate her radicular pain, that is, the pain she describes as radiating into her shoulder and arm. Radicular pain can often be localized to a particular nerve root, which allows the surgeon to identify the specific pain generator with greater confidence. The source of axial pain is more difficult to pinpoint. In Claimant’s case, however, given that she has been followed over a long period of time with no new complaints or developments, and also given that her symptoms correlate well with her MRI findings, Dr. Phillips is confident that he will be able to do so.
23. Claimant has now decided that she would like to undergo surgery. While she understands that it likely will not cure her pain completely, Dr. Phillips anticipates that it will alleviate her symptoms enough to provide long-term improvement in both her quality of life and her ability to function.
24. Claimant will need medical clearance to undergo Dr. Phillips’ proposed surgery, as she has a history of coronary artery blockage. An updated MRI study also will be necessary prior to surgery.
25. Dr. Phillips testified that both Dr. Young-Xu’s medication regimen and Ms. Wallace’s injection therapies were consistent with conservative management of chronic pain problems such as Claimant’s.
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Defense Expert Medical Opinions
26. At Defendant’s request, Claimant has undergone two independent medical examinations, one with Dr. Boucher in January 2011 and another with Dr. Cares in January 2012. At issue in both evaluations was whether Claimant’s ongoing treatment, consisting of prescription pain medications, injections and possibly fusion surgery, is medically necessary and causally related to her compensable work injury.
(a) Dr. Boucher
27. Dr. Boucher is board certified in occupational medicine. In the past 15 years he has focused increasingly on chronic pain management, though he is not board certified in that specialty. His current practice consists primarily in performing medical records reviews, permanency evaluations and independent medical examinations; only ten percent involves direct patient care.
28. As part of his evaluation of Claimant, Dr. Boucher conducted a physical examination and also reviewed her medical records. Based on that, he concluded that Claimant’s physical injuries have never been so severe as to warrant the type and extent of treatment she has received. Rather, in his opinion her condition is largely psychogenic, or psychologically rather than physically driven.
29. I find specific reason in the record to question this assertion. For example, although Dr. Boucher stated that Claimant was “clearly” depressed, this was based solely on her demeanor during his examination, not on any formal screening tool. Notably, based on Claimant’s periodic self-reports on a validated screening questionnaire, Dr. Young-Xu has concluded that her depression is in remission and under control. Having used a far more precise evaluative technique, I find Dr. Young-Xu’s conclusion in this regard more persuasive than Dr. Boucher’s.
30. Dr. Boucher’s conclusion that Claimant exhibited evidence of symptom magnification is also suspect. In appropriate circumstances, symptom magnifying behavior may indicate a strong psychological component to a patient’s presentation. In Claimant’s case, Dr. Boucher found such behavior in the inconsistent responses she demonstrated on repeat cervical range of motion testing. However, as Ms. Wallace credibly noted after viewing the video of Dr. Boucher’s evaluation, his examination technique may itself have induced the inconsistencies upon which he relied, and therefore I must discount them.
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31. Dr. Boucher found fault in virtually all of the treatment that Claimant’s providers have rendered since her work injury. In his opinion, the objective findings have never been sufficient to justify narcotic pain medications, and recent research suggests that chronic use of opiate analgesics may actually increase rather than decrease a patient’s perception of pain. According to his review of the medical records, Claimant’s response to Ms. Wallace’s epidural steroid injections provided only temporary relief and likely represented a placebo effect rather than truly effective treatment. As for Dr. Phillips’ proposed surgery, Dr. Boucher strongly discouraged it, on the grounds that absent clear evidence of radiculopathy cervical fusion likely would not be successful at relieving Claimant’s symptoms.
32. Again, I find reason to question these assertions. While it is true that long term use of narcotic pain medications may be contraindicated in many chronic pain patients, even Dr. Boucher acknowledged that anecdotally there are those who appear to function well on them. The American College of Occupational and Environmental Medicine (ACOEM) guidelines recommend their use for select patients. Presumably as a safeguard against abuse, the ACOEM guidelines also recommend routine urine drug screening to identify aberrant use, a procedure to which Dr. Young-Xu adheres and which Claimant has never failed. Notably, both Ms. Wallace and Dr. Phillips also supported Dr. Young-Xu’s medication regimen as consistent with proper management of chronic pain patients.
33. As noted previously, furthermore, Finding of Fact No. 15 supra, I already have found from the credible medical evidence that Claimant derived sufficient benefit from injection therapy to justify its ongoing use. Ms. Wallace’s credentials in this area are impressive, and her explanation as to how injections are used to manage both acute and chronic pain was persuasive. Viewed against this backdrop, I find little evidence to support Dr. Boucher’s conclusion that the only benefit Claimant has derived from injection therapy is as a placebo.
34. Dr. Boucher’s opinion as to fusion surgery comports generally with that of Dr. Cares, which is discussed in greater detail below.
(b) Dr. Cares
35. Dr. Cares is a board certified neurosurgeon at Massachusetts General Hospital. His clinical practice includes cervical spine surgeries. Dr. Cares was one of Dr. Phillips’ mentors during the latter’s residency. Each holds the other in high regard.
36. Dr. Cares diagnosed Claimant with a remote cervical strain causally related to her work injury, but attributed her current symptoms solely to somatoform disorder. He based this conclusion on what he perceived to be a lack of objective findings, coupled with evidence of symptom magnification. His observations in this regard were similar to Dr. Boucher’s.
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37. As for Dr. Phillips’ proposed surgery, Dr. Cares was strongly opposed. In his opinion, Claimant’s symptoms did not correlate with either her MRI studies or his findings on examination. Absent sufficient correlation, in Dr. Cares’ opinion it would be impossible to identify and address the source of her pain surgically. Thus, while he acknowledged that some surgeons will operate on axial pain, in his opinion to do so is not “scientific behavior.” He does not anticipate that Claimant will derive much, if any, benefit from surgery. Were she his patient, it is not an option he would offer.
38. Dr. Cares also expressed concern about the inherent risks associated with a two-level fusion surgery such as the one Dr. Phillips has proposed. Fusing two joints places added stress on the discs directly above and below, thus increasing the risk of excessive degeneration from overuse.
39. In his testimony, Dr. Phillips directly addressed Dr. Cares’ misgivings as to fusion surgery. As noted above, Finding of Fact No. 22 supra, notwithstanding that Claimant’s pain is primarily axial rather than radicular in nature, Dr. Phillips is confident that surgery will alleviate her symptoms enough to improve function. Her complaints have been consistent throughout and to his view correlate well with her imaging studies. Dr. Phillips noted in this regard that although Claimant’s MRI studies have documented more left- than right-sided abnormalities, this does not mean that her predominantly right-sided symptoms are inconsistent. The key is how the various structures of the spine move in relation to one another. Thus, the fact that on a static MRI scan a disc herniation appears to predominate on the left does not negate the possibility of nerve root irritation on the right.
40. As for the risk of further degeneration above and below the fusion site, in Dr. Phillips’ opinion this is overstated. As discussed supra, Finding of Fact No. 8, bone spurs already have formed at the levels to be fused, which is the body’s own attempt to immobilize the area. Even without surgical fusion, the risk of adjacent segment disease already exists, therefore. I find this analysis persuasive.
Procedural History
41. At Defendant’s request, in May 2006 Claimant underwent an independent medical examination with Dr. Davignon. This evaluation followed her second surgical consultation with Dr. Phillips. Claimant having at that time opted against surgery, Dr. Davignon determined that she had reached an end medical result for her compensable neck and lower back injuries. With that opinion as support, in June 2006 the Department approved Defendant’s discontinuance of temporary total disability benefits. Thereafter, Defendant continued to pay for physical therapy, chiropractic treatments, injections and prescription pain medications as before.
42. In December 2006 the Department approved a full and final (Form 14) settlement of Claimant’s claim for indemnity benefits causally related to her compensable neck and lower back injuries. Claimant’s entitlement to ongoing medical benefits was unaffected by this settlement.
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43. With Dr. Boucher’s January 2011 independent medical examination as support, in February 2011 the Department approved Defendant’s discontinuance of both chiropractic manipulations and/or injections as treatment for Claimant’s compensable injuries. The Department rejected Defendant’s discontinuance of pain medications absent evidence of a safe taper plan.
CONCLUSIONS OF LAW:
1. The disputed issue in this claim is whether Defendant is obligated to pay for various medical services and supplies, including prescription pain medications, injections, physical therapy, chiropractic treatment and/or proposed cervical fusion surgery, as reasonable treatment for Claimant’s compensable neck and low back injuries. Defendant asserts that it is not, both because her current complaints are unrelated to her work injuries and because the treatments at issue are not medically necessary.
2. Vermont’s workers’ compensation statute obligates an employer to pay only for those medical treatments that are determined to be both “reasonable” and causally related to the compensable injury. 21 V.S.A. §640(a); MacAskill v. Kelly Services, Opinion No. 04-09WC (January 30, 2009). The commissioner has discretion to determine what constitutes “reasonable” medical treatment given the particular circumstances of each case. Id. A treatment can be unreasonable either because it is not medically necessary or because it is not related to the compensable injury. Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January 20, 2010).
3. The parties presented conflicting expert testimony on both of these factors. In such cases, 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).
Causal Relationship
4. Considering the causal relationship question first, I conclude from the more credible evidence that Claimant’s current symptoms and need for ongoing treatment are related to her compensable injuries. I accept the opinions of her treating providers – Dr. Young-Xu, Ms. Wallace and Dr. Phillips – as persuasive in this regard. All have benefitted from the opportunity to evaluate and observe Claimant over an extended period of time. Beyond that, Ms. Wallace cogently explained the extent to which some of Claimant’s more diffuse symptoms likely represent neuropathic pain, and Dr. Phillips credibly connected the dots between her consistent complaints and the objective findings documented on MRI studies.
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5. Drs. Boucher and Cares both characterized Claimant’s condition as driven primarily by psychological factors, but I find lacking the evidence in support. As to both depression and symptom magnification, Dr. Boucher’s observations were particularly suspect given his examination technique. Dr. Cares’ opinion was largely conclusory, and therefore difficult for me to evaluate. Neither expert provided sufficient justification for the premise that at some point Claimant’s neck and lower back symptoms, the treatment for which Defendant had long accepted as compensable, suddenly became psychogenically caused instead. Defendant bore the burden of proof on this issue, Merrill v. University of Vermont, 133 Vt. 101 (1974), and I conclude that it has failed to sustain it.
Medical Necessity
6. Having concluded that Claimant’s need for ongoing treatment is causally related to her compensable work injuries, I next consider whether the treatments at issue are medically necessary. This determination is based on evidence establishing the likelihood that they will improve the patient’s condition, either by relieving symptoms and/or by maintaining or increasing functional abilities. Cahill v. Benchmark Assisted Living, Opinion No. 13-12WC (April 27, 2012); Quinn v. Emery Worldwide, Opinion No. 29-00WC (September 11, 2000).
(a) Prescription Pain Medications and Injection Therapy
7. I conclude from the more credible evidence here that both Dr. Young-Xu’s prescription pain medications and Ms. Wallace’s injection therapy meet this standard. The intent of these treatments is not to “cure” Claimant’s pain, but rather to make it more manageable on a daily basis. As Ms. Wallace aptly described the chronic pain practitioner’s goal, “We don’t measure success by pain score. We measure success by function.”
8. With this goal in mind, I accept as credible Claimant’s testimony that she functions better with her pain medications, particularly fentanyl, than without them. I therefore conclude that the medications are continuing to serve the purpose for which they were prescribed and are thus medically necessary.
9. It is true, as Dr. Boucher noted, that recent research studies caution against the long term use of opiate analgesics as treatment for chronic pain. Given his limited association with Claimant, however, he is ill positioned to evaluate effectively whether such long-term use might still be appropriate in her case, a possibility that the ACOEM guidelines themselves acknowledge. As Claimant’s primary treatment provider, Dr. Young-Xu is more capable of making that determination, and also ensuring that proper safeguards against abuse are maintained. Both Dr. Phillips and Ms. Wallace fully endorsed the medication regimen she has prescribed, furthermore. Considered together, I conclude that the opinions of Claimant’s three treatment providers on this issue are more persuasive than Dr. Boucher’s.
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10. I also accept as credible Ms. Wallace’s assertion that Claimant derives sufficient benefit from injections to justify their continued periodic use. Claimant credibly testified to that effect, and the relief she claimed was adequately documented in the medical records. In contrast, Dr. Boucher’s conclusion that the injections were effective only as a placebo lacked objective support, and therefore I find it unpersuasive.
(b) Physical Therapy and Chiropractic Treatment
11. I conclude that the evidence was insufficient to establish that either physical therapy or chiropractic treatment constitute medically necessary treatment for Claimant’s symptoms at this point. There is no currently pending referral for physical therapy, and thus there is no basis for me to evaluate its current role, if any, in addressing her work-related condition. As for chiropractic, I will not give carte blanche approval for treatment that Claimant has not recently pursued absent more persuasive evidence regarding its efficacy in this case.
(c) Surgery
12. Finally, I must determine whether Dr. Phillips’ proposed cervical fusion surgery constitutes medically necessary treatment for Claimant’s work-related neck injury. Both Dr. Phillips and Dr. Cares rendered carefully considered opinions on this issue. If nothing else, their debate presents an instructive example of how two similarly trained and experienced medical professionals might present diametrically opposed yet equally persuasive views regarding how best to manage their own patients. It is a forceful reminder that medical decision-making is an inexact science, and that rarely is there only one right answer. Cahill, supra; Lackey v. Brattleboro Retreat, Opinion No. 15-10WC (April 21, 2010).
13. I conclude here that Dr. Phillips’ opinion is the most persuasive. I am confident that he conducted an appropriate risk-benefit analysis as to the efficacy of fusion surgery in Claimant’s case. I accept as credible his conclusion that it represents a reasonable opportunity to improve both function and quality of life in ways that will make a significant difference to her. Conservative treatment having failed to accomplish this result, I agree that she deserves this opportunity.
14. I am mindful that Dr. Cares’ risk-benefit analysis weighed against surgery as an appropriate treatment option in Claimant’s case, such that were Claimant his patient, it is not a choice he would have offered. However, the benefit side of his analysis was based on what he perceived to be evidence of symptom magnification and somatoform disorder, evidence I already have rejected, see Finding of Fact No. 37 supra. As for his risk analysis, I have accepted Dr. Phillips’ interpretation instead, see Finding of Fact No. 40 supra.
12
15. I conclude that Claimant has sustained her burden of proving that Dr. Phillips’ proposed fusion surgery is medically necessary.
Summary
16. I conclude that Claimant has sustained her burden of proving that prescription pain medications, injection therapy and proposed fusion surgery constitute causally related, medically necessary and therefore reasonable treatment for her March 2004 work injuries. Under 21 V.S.A. §640(a), Defendant is obligated to pay for them.
17. I conclude that Claimant has not sustained her burden of proving that either physical therapy or chiropractic treatment is medically necessary at this time.4
18. As Claimant has substantially prevailed on her claim for benefits, she is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit her itemized claim.
ORDER:
Based on the foregoing Findings of Fact and Conclusions of Law, Defendant is hereby ORDERED to pay:
1. Medical benefits covering ongoing chronic pain management of Claimant’s current cervical and lower back conditions with appropriately prescribed pain medications and/or injection therapies, in accordance with 21 V.S.A. §640(a);
2. Medical benefits associated with Dr. Phillips’ proposed cervical fusion surgery, in accordance with 21 V.S.A. §640(a); and
3. Costs and attorney fees in amounts to be established, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 14th day of September 2012.
________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.
4 My conclusion in this regard should not be interpreted as precluding a finding of medical necessity for these treatments in the future, based on a treatment provider’s appropriate and credible recommendation or referral.

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