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Linda Montague v. Tivoly Inc (September 22, 2011)

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Linda Montague v. Tivoly Inc (September 22, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Linda Montague Opinion No. 28-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Tivoly, Inc.
For: Anne M. Noonan
Commissioner
State File No. Z-64639
OPINION AND ORDER
Hearing held in Montpelier, Vermont on April 21, 2011
Record closed on June 6, 2011
APPEARANCES:
Kelly Massicotte, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUE PRESENTED:
Was Claimant’s August 2010 fusion surgery reasonable, necessary and causally related to her January 31, 2008 work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Deposition of Hulda Magnadottir, M.D., April 13, 2011
(Curriculum vitae attached)
Claimant’s Exhibit 2: Compensation Agreements (Forms 21 and 22)
Defendant’s Exhibit A: Deposition of William Boucher, M.D., April 11, 2011
CLAIM:
All workers’ compensation benefits to which Claimant is deemed entitled as a consequence of her August 2010 fusion surgery;
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.
Claimant’s January 2008 Fall, Prior Medical History and Course of Treatment
3. Claimant worked for Defendant as a machinist. As she was leaving work on January 31, 2008 she slipped on some icy outside stairs. Her feet came out from under her and she fell to the ground, landing on her back. Claimant injured her neck and left shoulder in the fall.
4. Defendant accepted Claimant’s injury as compensable and began paying workers’ compensation benefits accordingly.
5. As a result of her injury Claimant experienced severe neck pain and stiffness, with extremely limited range of motion. The pain radiated into the top of her left shoulder and between her shoulder blades. She experienced debilitating headaches as well.
6. Claimant’s prior medical history is significant for a two-level (C5-C7) cervical fusion following a motor vehicle accident some 20 years ago. More recently, in 2005 Claimant underwent surgery to repair a left rotator cuff tear following a work-related shoulder injury. Claimant fully recovered from both of these injuries and was experiencing no residual symptoms in either her neck or her left shoulder at the time of the January 2008 fall. Claimant also had a prior history of migraine headaches, most likely related to hormonal changes. Prior to her fall, these occurred on a monthly basis and were well controlled with medication.
7. Initially Claimant treated conservatively for the symptoms related to her January 2008 fall. She underwent a series of injections, but these were largely ineffective. Thereafter, Claimant underwent two surgical consultations, one with Dr. Braun, an orthopedic surgeon, and one with Dr. Ball, a neurosurgeon. Both doctors reviewed Claimant’s diagnostic imaging studies, which showed degenerative changes both above and below the level of her prior fusion but no clear evidence of spinal stenosis, or narrowing of the spinal canal. Nor did Claimant’s clinical examination reveal any signs of radiculopathy, such as asymmetric reflexes, decreased strength or sensory deficits in a dermatomal pattern. Lacking what they considered to be definitive evidence indicative of nerve root involvement, both doctors recommended against surgery as a treatment option.
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8. Surgical treatment options having apparently been eliminated, in July 2009 Claimant participated in a three-week intensive functional restoration program at Dartmouth Hitchcock Medical Center (DHMC). Claimant experienced improvements in both her physical capacity and her pain levels as a result of that program. She was less depressed, and less reliant on narcotic pain medications for symptom relief. Functionally, however, even after completing the program Claimant still was unable to meet her goals for vocational, recreational and daily living activities. Her pattern of neck pain radiating into the top of her left shoulder was relatively unchanged as well.
9. On September 11, 2009 Dr. Hazard, the doctor who had supervised Claimant’s participation in the DHMC functional restoration program, determined that she had reached an end medical result. Dr. Hazard rated Claimant with a 15% permanent impairment referable to her cervical spine as a result of her January 2008 work injury. In February 2010 the Department approved the parties’ Agreement for Permanent Partial Disability Compensation (Form 22) to that effect.
10. Over the ensuing months Claimant’s symptoms worsened. Her neck and shoulder pain continued, her headaches became constant and she spent much of her day in bed.
Dr. Magnadottir
11. At Claimant’s request, in March 2010 her primary care provider referred her to Dr. Magnadottir, a board certified neurosurgeon, for another opinion as to whether surgery might yet be an appropriate treatment option for her ongoing symptoms. Fusion surgeries are a routine aspect of Dr. Magnadottir’s practice; she estimates that she has performed approximately 1,000 such operations over the course of her career, at the rate of about 100 annually.
12. Based on her clinical exam findings, Dr. Magnadottir suspected that there was both a radicular and a myofascial component to Claimant’s pain presentation. The myofascial component stemmed from muscle tightness and spasms in her neck and between her shoulder blades, and would not be relieved by surgery. The radicular component seemed to stem from a bone spur that appeared on MRI to be impinging on Claimant’s C5 nerve root. If so, surgery might well be indicated to relieve at least some of her neck pain, as well as the radiating pain across the top of her left shoulder. The latter pain Claimant described as being particularly bothersome.
13. A diagnostic injection confirmed Dr. Magnadottir’s suspicions as to the radicular component of Claimant’s pain. Thereafter, on August 4, 2010 Dr. Magnadottir surgically decompressed Claimant’s C5 nerve root and fused her C4-5 vertebrae. Among her surgical findings, Dr. Magnadottir observed that a fragment of the bone spur she had viewed on MRI was actually dislocated, and that this was what was impinging on Claimant’s C5 nerve root. To a reasonable degree of medical certainty, Dr. Magnadottir concluded that although the bone spur itself likely preexisted, the dislocated fragment probably occurred as a result of Claimant’s January 2008 fall. In her view, the symptoms that followed, and the surgery necessitated to alleviate them, were therefore causally related to that work injury. I find this reasoning to be persuasive.
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14. As Dr. Magnadottir predicted, since the surgery Claimant’s radicular symptoms have largely resolved, particularly the pain across the top of her left shoulder. Her cervical range of motion has improved, and her headaches are no longer constant and persistent. She no longer requires narcotic medications for pain relief, and takes muscle relaxants only occasionally. Her activity level, though still quite limited by muscle-related pain and stiffness in her neck and shoulder blades, is noticeably improved as well.
15. Dr. Magnadottir determined that Claimant had reached an end medical result from her fusion surgery as of the date of her last office visit, February 23, 2011.
16. Based on the particular location of the nerve compression she viewed during surgery, Dr. Magnadottir discounted degenerative changes as the cause of Claimant’s more recent symptoms. In her opinion, furthermore, degenerative changes alone would not have caused the bone spur to fracture and dislocate as it did. I find this reasoning to be credible.
Dr. Boucher
17. At Defendant’s request, in May 2010 Claimant underwent an independent medical examination with Dr. Boucher, a board certified occupational medicine specialist. Dr. Boucher reviewed Claimant’s medical records and conducted a physical examination. From this he concluded that Claimant likely suffered a cervical strain as a result of her January 2008 fall at work.
18. Dr. Boucher strongly disagreed with Dr. Magnadottir’s decision to treat Claimant’s symptoms surgically. He believed it “quite clear” that Claimant’s condition was entirely musculoskeletal, not radicular, in origin. Citing to treatment guidelines issued by the American College of Occupational and Environmental Medicine, and lacking what he considered to be any evidence indicative of nerve root involvement, Dr. Boucher asserted that fusion surgery was neither reasonable nor necessary in Claimant’s case.
19. Dr. Boucher acknowledged that had there been evidence of developing radiculopathy, then the fusion surgery Dr. Magnadottir performed would have been medically appropriate. Even in that circumstance, however, Dr. Boucher would attribute the cause of such radiculopathy to the degenerative changes in Claimant’s cervical spine, not to her January 2008 fall at work. As noted above, however, the specific location of the nerve compression that Dr. Magnadottir observed during surgery makes this unlikely.
20. I find that Dr. Magnadottir effectively refuted the premise upon which Dr. Boucher’s conclusion was based. In her experience, quite often patients present with a pure radicular pain syndrome, without any accompanying sensory changes or motor dysfunction. The fact that a patient fails to exhibit signs of more severe nerve damage – strength deficits or numbness in a dermatomal pattern, for example – does not negate a finding of radiculopathy. In Claimant’s case, Dr. Magnadottir sufficiently established the presence of radiculopathy pre-operatively by other means, including both clinical and diagnostic testing, and then later confirmed it in her surgical findings.
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21. The fact that since her fusion surgery Claimant has experienced significant improvement in the symptoms that Dr. Magnadottir identified as radicular in nature also undermines Dr. Boucher’s conclusion that her condition was entirely musculoskeletal. Dr. Boucher predicted that Claimant’s neck pain would not improve with fusion surgery, and that her range of motion would worsen. In fact, however, as Claimant credibly testified and as Dr. Magnadottir’s notes corroborate, the opposite has occurred.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The disputed issue presented here is whether Claimant’s August 2010 fusion 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. §§618, 640(a); Lackey v. Brattleboro Retreat, Opinion No. 15-10WC (April 21, 2010). 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. Id.; Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January 20, 2010).
3. Conflicting medical testimony was offered as to the reasonableness of Claimant’s fusion 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).
4. Here I conclude that Dr. Magnadottir’s opinion was more credible than Dr. Boucher’s. With her experience in evaluating and treating patients with complaints such as Claimant’s, Dr. Magnadottir was better positioned to discern the possibility that at least some of Claimant’s symptoms were radicular in origin. The conclusions she drew from Claimant’s clinical exam and diagnostic studies were confirmed by her surgical findings and therefore objectively supported. That Claimant improved thereafter provides further corroboration.
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5. I also conclude that Dr. Magnadottir’s analysis of the causal relationship between Claimant’s January 2008 work injury and her developing radiculopathy was more persuasive than Dr. Boucher’s. Again, Dr. Magnadottir’s surgical findings effectively discounted degenerative changes alone as the cause of Claimant’s condition, and instead pointed to her work-related fall as the inciting factor.
6. I conclude that Claimant’s August 2010 fusion surgery was both medically necessary and causally related to her compensable work injury. It therefore constitutes reasonable medical treatment, for which Defendant is obligated to pay all associated medical and indemnity benefits.
7. As Claimant has prevailed on her claim for benefits, she is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit her itemized claim.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. All workers’ compensation benefits to which Claimant proves her entitlement as causally related to her August 2010 fusion surgery; and
2. Costs and attorney fees in amounts to be determined, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 22nd day of September 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.

Anthony Pelissier v. Hannaford Brothers (September 9, 2011)

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Anthony Pelissier v. Hannaford Brothers (September 9, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Anthony Pelissier Opinion No. 26-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Hannaford Brothers
For: Anne M. Noonan
Commissioner
State File No. AA-3847
OPINION AND ORDER
Hearing held in Montpelier, Vermont on November 8, 2010 and April 15, 2011
Record closed on May 26, 2011
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUES PRESENTED:
1. Was Claimant’s May 2010 fusion surgery reasonable, necessary and causally related to his May 15, 2009 work injury?
2. Should Defendant’s contribution to Claimant’s group health insurance premium be included in his average weekly wage and compensation rate calculation?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Additional medical records
Claimant’s Exhibit 1: Health insurance premium contributions, 2008-2010
Claimant’s Exhibit 2: Letter to Claimant, 1/1/2010
Defendant’s Exhibit A: Deposition of James Forbes, M.D., April 1, 2011
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CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642, recalculated after February 27, 2010 to include the value of Defendant’s contribution to Claimant’s group health insurance premium;
All workers’ compensation benefits to which Claimant is deemed entitled as a consequence of his May 2010 fusion surgery;
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 and correspondence contained in the Department’s file relating to this claim.
3. Claimant began working for Defendant in 2004, first as a night crew associate and later as a frozen foods supervisor. His primary duty was stocking shelves. This involved breaking down pallets of merchandise, loading cases of product onto carts, pushing and pulling the carts to the appropriate aisle, and then unloading the product onto the shelves. The work was physically demanding, and entailed a significant amount of lifting, bending, walking and kneeling.
Claimant’s Prior Medical History
4. Claimant’s medical history includes treatment for two episodes of low back pain prior to May 15, 2009. The first incident occurred in September 2006, when he strained his back while boxing. His symptoms were not disabling, and resolved quickly with ibuprofen and stretching.
5. Claimant treated again for low back pain, with symptoms radiating primarily into his right hip, beginning in October 2008. There was no inciting event or trauma, work-related or otherwise. A December 2008 MRI revealed some degenerative disc disease, and also an old pars defect, or stress fracture, in his L5 lumbar vertebra. Fractures of this type render unstable a specific segment of the spine. The condition, also known as spondylolysis, is not uncommon. Most cases are thought to be congenital in origin, and many never become symptomatic at all unless exacerbated, either by specific trauma or by age-related degeneration.
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6. It is unclear from the medical records whether the symptoms Claimant experienced in October 2008 were causally related to his pre-existing pars defect. Although he later alleged that they were either caused or aggravated by his work activities, he never reported them to Defendant as such. Nor does the medical evidence establish any work-related connection. In any event, after a course of physical therapy and injections, Claimant’s symptoms resolved. By February 2009 he had resumed his regular activities, both recreationally and at work.
Claimant’s May 2009 Work Injury and Subsequent Course
7. On May 15, 2009 Claimant was breaking down a pallet of merchandise. He bent over to pick up a case of cat litter weighing thirty to forty pounds and immediately felt a tearing sensation in his left lower back. The pain dropped him to the floor, and it was a few minutes before he could stand. It radiated down his left leg and caused numbness and tingling into his left foot. Claimant reported the injury to his supervisor, and then drove home. His wife took him to the hospital emergency room for treatment.
8. Defendant accepted Claimant’s injury as compensable and began paying workers’ compensation benefits accordingly.
9. Claimant treated conservatively for his injury, which initially was diagnosed as a lumbar strain. Unfortunately, he failed to improve with physical therapy, and was unable to complete a multidisciplinary work hardening program due to his ongoing pain complaints. A course of injections also proved unsuccessful. Claimant experienced some symptom relief with narcotic pain medications, but was understandably fearful of becoming addicted.
10. Throughout his course of conservative treatment Claimant’s primary complaint was low back pain, and to a lesser extent left leg pain and numbness. Claimant credibly testified, and the medical records corroborate, that these symptoms were both qualitatively and quantitatively different from the episodes of low back pain he had experienced prior to May 15, 2009. Most notably, his prior episodes of low back pain always had resolved to the point where he was able to resume full activity. After the May 2009 incident, however, he was unable to do so.
11. In July 2009 Claimant’s primary treatment provider referred him to Dr. Barnum, a board-certified orthopedic surgeon, for evaluation. Dr. Barnum’s clinical practice focuses almost exclusively on treating spine injuries and disorders. He estimates that he has performed more than 300 fusion surgeries in the past two years.
12. According to Dr. Barnum, the mechanism of Claimant’s May 2009 work injury caused his pre-existing pars defect to become symptomatic. Though the event itself – bending and lifting a case of cat litter – was not dramatic, the resulting inflammatory process in the area of the defect caused persistent pain that did not abate with conservative treatment. Rather than allow Claimant to become dependent on narcotic medications for long-term pain relief, Dr. Barnum determined that the better treatment course was lumbar fusion surgery.
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13. Claimant underwent a two-level (L4-S1) surgical fusion on May 26, 2010. Since then his pain complaints have lessened significantly. He no longer requires narcotic medications for pain relief. As of the formal hearing he had not yet undergone a functional capacity evaluation, nor had Dr. Barnum yet determined that he was at end medical result.
Defendant’s Expert Medical Opinions
14. At Defendant’s request, Claimant underwent two independent medical examinations with Dr. Forbes, the first in July 2009 and then again in May 2010. Dr. Forbes is an orthopedic surgeon. Although earlier in his career he routinely performed and/or assisted at spine surgeries, his current practice is a mix of non-surgical clinical work and independent medical examinations.
15. Dr. Forbes’ opinion as to the causal link between Claimant’s ongoing symptoms and his May 2009 work injury is somewhat variable. Specifically:
• In the context of his July 2009 examination, Dr. Forbes determined that Claimant had suffered an acute lumbosacral strain as a result of the May 2009 lifting incident, which likely exacerbated the symptoms of his underlying degenerative disc disease.
• Subsequently, in a March 2010 letter to Defendant’s attorney, Dr. Forbes asserted that the symptoms attributable to the May 2009 work injury had resolved, and that Claimant’s ongoing need for treatment was related instead to the preexisting condition for which he had been treating from October 2008 until February 2009.
• Upon reexamining Claimant in May 2010, Dr. Forbes stated that Claimant’s current condition appeared to be a continuation of his May 2009 injury, and did not appear to be related to the symptoms he had exhibited in October 2008.
• In his April 2011 preservation deposition, Dr. Forbes testified that Claimant’s condition was causally related either to his preexisting degenerative disc disease and/or to his preexisting spondylolysis, neither of which had been exacerbated in any way by his May 2009 work injury.
16. In his deposition testimony, Dr. Forbes denied that a lifting incident such as the one Claimant described in May 2009 could cause spondylolysis. Instead, he thought that Claimant’s boxing activities were the most likely cause. According to Dr. Forbes, boxers and figure skaters are among the groups with a higher incidence of spondylolysis, due to the repetitive extension of the spine that such activities entail.
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17. Claimant credibly testified that he has not engaged in boxing activities since approximately 2006. With this time frame in mind, even were I to accept Dr. Forbes’ theory as to the initial cause of Claimant’s pars defect, this still would not eliminate the May 2009 lifting incident as an exacerbating event. For this reason, I find Dr. Forbes’ opinion denying a causal link between Claimant’s ongoing symptoms and his May 2009 work injury to be somewhat incomplete.
18. In Dr. Forbes’ opinion, the fusion surgery that Claimant underwent in May 2010 was neither reasonable and necessary nor causally related to his May 2009 work injury. Having observed what he considered to be significant pain behavior during his examinations, Dr. Forbes did not think that Claimant was an appropriate surgical candidate. Even if he was, the purpose of the surgery was to repair Claimant’s spondylolysis, a preexisting condition that in Dr. Forbes’ view had not been worsened in any way by the May 2009 lifting incident.
Defendant’s Contribution to Claimant’s Group Health Insurance Premium
19. Claimant has been disabled from performing his regular job duties for Defendant since his May 15, 2009 injury. He briefly returned to work in a modified-duty capacity during the summer of 2009, but after August 2009 Defendant could no longer accommodate his restrictions. Claimant’s treating physician subsequently determined that he was unable to work at all, following which the Department ordered Defendant to pay temporary total disability benefits.
20. As a full-time employee, Claimant had been receiving group health insurance coverage through Defendant since July 2004. Defendant paid a portion of the premium. In 2009, Defendant’s share of the total premium cost was 55% ($109.57 weekly); in 2010 its share increased to 68% ($114.96 weekly).
21. In January 2010 Defendant notified Claimant that because of his extended absence from work, and in compliance with its leave of absence policy, it was terminating its contribution to his group health insurance premium effective February 27, 2010.
22. At the time of Claimant’s May 15, 2009 work injury, his average weekly wage was $561.41, which yielded a weekly compensation rate of $374.29. Had Defendant’s contribution to Claimant’s group health insurance premium been factored in, his average weekly wage would have increased to $670.98, which would have yielded a weekly compensation rate of $447.34.
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CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
Compensability of Fusion Surgery
2. The first disputed issue presented here is whether Claimant’s May 2010 fusion 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. §§618, 640(a); Lackey v. Brattleboro Retreat, Opinion No. 15-10WC (April 21, 2010). 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. Id.; Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January 20, 2010).
3. Conflicting medical testimony was offered as to both the reasonableness of Claimant’s fusion surgery and its causal relationship to the May 2009 work injury.1 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. Here I conclude that Dr. Barnum’s opinion was more credible than Dr. Forbes’. As the treating orthopedic surgeon, he was better positioned to evaluate Claimant’s pain behaviors, his potential for narcotic addiction and his readiness, both psychological and physical, for surgical intervention. With a current practice that focuses primarily on spine surgeries, furthermore, his relevant experience outweighs that of Dr. Forbes. Considering these factors, I conclude that his opinion as to the medical necessity of Claimant’s fusion surgery is the most credible.
1 No medical evidence was introduced to establish any connection between Claimant’s need for fusion surgery and his work activities in October 2008. Without competent expert medical testimony to support a causal link, any claim for workers’ compensation benefits arising out of Claimant’s work during this period must fail. Marsigli’s Estate v. Granite City Auto Sales, Inc., 124 Vt. 95 (1964).
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5. I also conclude that Dr. Barnum’s opinion as to the causal link between Claimant’s May 2009 work injury and his need for fusion surgery is more persuasive than Dr. Forbes’. Dr. Barnum’s opinion was clearly stated and thorough. It adequately explained how Claimant’s work injury likely exacerbated his preexisting pars defect, rendering symptomatic a condition that previously had not been so. In contrast, Dr. Forbes’ opinion was inconsistently stated and incomplete.
6. I conclude that Claimant’s May 2010 fusion surgery was both medically necessary and causally related to his compensable work injury. It therefore constitutes reasonable medical treatment, for which Defendant is obligated to pay all associated medical and indemnity benefits.
Defendant’s Contributions to Claimant’s Group Health Insurance Premium as Includable in Average Weekly Wage and Compensation Rate Calculation
7. Claimant argues that the value of Defendant’s contributions to his group health insurance premium should be included in his average weekly wage and compensation rate calculation. In keeping with the U.S. Supreme Court’s holding in Morrison-Knudsen Construction Co. v. Director, OWCP, 461 U.S. 624 (1983), this Department consistently has rejected such arguments in the past. T.K. v. Green Mountain Steel Erectors, Opinion No. 29-08WC (July 3, 2008); P.M. v. L.F. Hurtubise, Opinion No. 15-07WC (June 12, 2007); Pickens v. NSA Industries, Opinion No. 36-98WC (June 24, 1998); Antilla v. Edlund Co., Inc., Opinion No. 7-90WC (September 19, 1990).
8. In Morrison-Knudsen Construction Co. v. Director, OWCP, 461 U.S. 624 (1983), the U.S. Supreme Court considered whether employer contributions to union trust funds for health and welfare, pensions and training should be included in calculating an injured worker’s average weekly wage and compensation rate under the Longshoremen’s & Harbor Workers’ Compensation Act, 33 U.S.C. §901 et seq. That statute defined “wages” as “the money rate at which the service rendered is recompensed . . . including the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer . . .” 33 U.S.C. §902(13) (emphasis added).
9. Faced with this statutory language, the Court declined to reinterpret the term “wages” to include the employer’s contributions. Although it recognized the economic value of such benefits to employees, it also acknowledged that to change the compensation rate calculation in this way would “dramatically alter[] the cost factors upon which employers and their insurers have relied in ordering their affairs.” Id. at 636. The workers’ compensation act being “not a simple remedial statute intended for the benefit of workers,” but rather one designed to strike a balance between the concerns of both employers and employees, the Court concluded that it was up to Congress to decide whether or not to effect such a change.2 Id. at 636.
2 In fact, after Morrison-Knudsen Congress did consider the issue. In 1984 it amended the Longshoremen’s Act to clarify that the term “wages” does not include such fringe benefits as employer-paid contributions to an employee’s health insurance plan. Pub.L. No. 98-426 §2(13), 98 Stat. 1639 (1984).
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10. Claimant argues that the definition of “wages” in Vermont’s workers’ compensation act is sufficiently different from the one discussed in Morrison-Knudsen as to justify a different result. Our statute defines wages as including “bonuses and the market value of board, lodging, fuel and other advantages which can be estimated in money and which the employee receives from the employer as a part of his or her remuneration.” 21 V.S.A. §601(13) (emphasis added). Claimant asserts that by its reference to “other advantages” rather than to “similar advantages,” Vermont’s statute is intended to be more inclusive than the federal statute.
11. This same argument was well considered, discussed and rejected in Pickens, supra. As the commissioner concluded there, I do not discern from the language of §601(13) any legislative intent to include an employer’s health care premium contribution in the same class of “other advantages” as bonuses, board, lodging or fuel so as to mandate its incorporation into an employee’s average weekly wage calculation.
12. Most courts that have considered the issue have declined to order that the value of an employer’s health insurance premium contribution be included in an injured worker’s compensation rate calculation. See, e.g., Lazarus v. Industrial Commission of Arizona, 947 P.2d 875, 877 n.2 (Ariz.App. 1997) and cases cited therein; 5 Lex K. Larson, Larson’s Workers’ Compensation §93.01[2][b] at p. 93-22 (Matthew Bender, Rev. Ed.) and cases cited therein. Many have done so on the grounds that the proper branch of government to consider such a change is the legislature, not the judiciary. See, e.g., Lazarus, supra at 879; Theuer v. Labor & Industry Review Commission, 624 N.W.2d 110, 116 (Wisc. 2001); Groover v. Johnson Controls World Serv., 527 S.E.2d 639, 641 (Ga.App. 2000); Borofsky’s Case, 582 N.E.2d 538, 539 (Mass. 1991); Gajan v. Bradlick Co., 355 S.E.2d 899, 902 (Va.App. 1987).
13. Vermont’s workers’ compensation act is to be liberally construed to achieve the humane purpose for which it was passed, but a liberal construction does not mean an unreasonable or unwarranted construction. Herbert v. Layman, 125 Vt. 481 (1966). If a statute seems unfair or unjust, the appropriate remedy lies with the legislature; it cannot be furnished by judicial action under the guise of interpretation. Quinn v. Pate, 124 Vt. 121, 127 (1964).
14. The change for which Claimant advocates could dramatically impact the delicate balance that the workers’ compensation act seeks to maintain between employers and employees. It has the potential to increase significantly an employer’s workers’ compensation insurance premium, which might act as a disincentive for offering any employer-paid group health insurance coverage at all. At the same time, it might complicate the wage calculation process to the point where the injured worker’s right to timely benefits is compromised. Considerations of this magnitude are best debated and decided in the legislature, not here.
15. I conclude that Claimant’s average weekly wage and compensation rate were calculated properly under §601(13) as currently written, without including the value of any employer-paid contributions to his group health insurance premium.
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16. As Claimant has prevailed on his claim for benefits causally related to his May 2010 fusion surgery, he is entitled to an award of those costs that relate directly thereto. Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003), citing Brown v. Whiting, Opinion No. 7-97WC (June 13, 1997). As for attorney fees, in cases where a claimant has only partially prevailed, the Commissioner typically exercises her discretion to award fees commensurate with the extent of the claimant’s success. Subject to these limitations, Claimant shall have 30 days from the date of this opinion to submit evidence of his allowable costs and attorney fees.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. All workers’ compensation benefits to which Claimant proves his entitlement as causally related to his May 2010 fusion surgery; and
2. Costs and attorney fees in amounts to be determined, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 9th day of September 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.

Enoch Rowell v. Northeast Kingdom Community Action (July 6, 2011)

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

Enoch Rowell v. Northeast Kingdom Community Action (July 6, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Enoch Rowell Opinion No. 17-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Northeast Kingdom For: Anne M. Noonan
Community Action Commissioner
State File No. Y-58698
OPINION AND ORDER
ATTORNEYS:
Heidi Groff, Esq., for Claimant
Robert Mabey, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant permanently and totally disabled as a consequence of his February 4, 2007 compensable work injury?
2. If not, what is the extent, if any, of Claimant’s permanent partial disability causally related to his February 4, 2007 compensable work injury?
3. Is Defendant obligated to pay for a special lift chair as a reasonable and necessary medical supply causally related to Claimant’s February 4, 2007 compensable work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Service Contract
Claimant’s Exhibit 2: Hours and wages for 2010 work at NCJC
Claimant’s Exhibit 3: Vocational Rehabilitation Plan, December 14, 2010
Claimant’s Exhibit 4: Resume with handwritten corrections
Claimant’s Exhibit 5: Dr. White report, January 12, 2009
Claimant’s Exhibit 6: Dr. Harris letter, May 8, 2009
Claimant’s Exhibit 7: Functional Capacity Evaluation, May 28, 2009
Claimant’s Exhibit 8: Special lift chair prescription, July 8, 2008
Claimant’s Exhibit 9: James Parker vocational assessment, January 7, 2011
Claimant’s Exhibit 10: Fran Plaisted vocational evaluation, January 5, 2011
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Defendant’s Exhibit A: NCJC employment records
Defendant’s Exhibit B: Cover letter and resume, March 23, 2004
Defendant’s Exhibit C: Newport Daily Express, January 8, 2008
Defendant’s Exhibit D: Meeting attendance records, July 2009-May 2010
Defendant’s Exhibit E: COSA Activity Log
Defendant’s Exhibit F: Curriculum vitae, Fran Plaisted
CLAIM:
Permanent total disability benefits pursuant to 21 V.S.A. §645
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 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 as an Integrated Housing Specialist at a halfway house operated by Defendant for recently released correctional center inmates. His job involved counseling and assisting the residents with such community integration skills as finding permanent housing and securing employment. Claimant did not live at the house, but was frequently there, as his duties included checking up on both the residents and the house itself.
Claimant’s February 2007 Work Injury, Subsequent Medical Course and Prior Medical History
4. On February 4, 2007 Claimant was at the halfway house, checking for frozen pipes in the basement. He tripped as he ascended the stairs and fell forward. Claimant heard a pop in his lower back and felt immediate pain both there and in his right shoulder.
5. Defendant accepted Claimant’s injury as compensable and began paying workers’ compensation benefits accordingly.
6. From the beginning Claimant treated conservatively for his low back pain, principally with Dr. Harris, his primary care provider. None of the treatments prescribed, including physical therapy, aqua therapy and injections, provided effective long-term relief.
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7. As for his right shoulder injury, initially Claimant experienced pain, limited range of motion and decreased function. A September 2007 MRI revealed findings suspicious for a labral tear, which was to be surgically repaired in January 2008. The night before the scheduled surgery, however, Claimant awoke to a vision of an angel and the Lord hovering over his bed. By the next morning his symptoms had completely resolved and the surgery was cancelled. Claimant described this experience as a “divine intervention.” Upon reexamining the shoulder in February 2008, Claimant’s primary care provider found no evidence of shoulder pathology, and offered no medical explanation for the resolution of Claimant’s symptoms.
8. With the Department’s approval, Defendant discontinued Claimant’s temporary total disability benefits on end medical result grounds effective October 29, 2007.
9. Even after having been determined to be at end medical result, in October 2008 Claimant was evaluated for entry into a functional restoration program for treatment of his chronic low back pain, but due to both high blood pressure and a limited exercise tolerance he was determined not to be a suitable candidate. Also in October 2008 Claimant was referred for cognitive behavioral therapy to assist with chronic pain management. Claimant did not feel capable of making the weekly trip to Burlington for group sessions, however, and therefore did not participate.
10. Currently Claimant experiences constant intractable low back pain radiating into his right buttock. The pain is hot, deep and intense. It is inadequately controlled with narcotic pain medications, deep breathing, meditation and prayer. Claimant can sit or stand for only brief periods without having to alternate his position due to increased pain. With a cane, he is able to take short walks up and down his road from time to time throughout the day. Climbing stairs causes severe pain, and as a result Claimant can no longer access his bedroom, which is on the second floor of his house. He now sleeps downstairs in his living room. His sleep is often interrupted by pain.
11. Claimant is most comfortable sitting in a reclining chair with his knees bent, which takes the pressure off of his lower back. At home he uses a special reclining lift chair that his primary care provider, Dr. Harris, prescribed in July 2008. The chair is equipped with a mechanism that lifts him to a standing position, thus decreasing the pain he otherwise experiences when moving from sitting to standing. After Defendant refused to pay for the chair, Claimant purchased it himself at a cost of $1,040.00.
12. Prior to the February 2007 injury Claimant enjoyed hunting, fishing, playing outside with his grandchildren and attending family gatherings. Since the injury Claimant has been limited by pain from engaging in these activities.
13. Claimant acknowledged, and the medical records reflect, that he had suffered from episodes of chronic low back pain at times prior to February 2007, but these always resolved, never interfered with his ability to work and required only occasional use of narcotic pain medications. Claimant testified credibly that since the February 2007 injury his pain has been significantly more severe, more constant and more intractable than anything he had experienced previously.
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14. Claimant’s medical history has been complicated by numerous medical conditions unrelated to his February 2007 injury. He had been plagued by knee pain for some years prior, as treatment for which he underwent bilateral knee replacement surgeries in June and July 2007. In August 2007 he underwent carpal tunnel release surgery. Claimant also suffers from obesity, sleep apnea, diabetes and high blood pressure. He was hospitalized in June 2010 for congestive heart failure, and again in August 2010 for gall bladder surgery. Claimant’s wife testified credibly that since the latter two hospitalizations Claimant’s overall function has improved. He has lost weight, is walking more and has decreased his use of pain medications.
Expert Medical Opinions
15. Drs. Harris, White and Backus all expressed opinions as to (1) the causal relationship between Claimant’s current condition and his February 2007 work injury; (2) the extent of the permanent impairment referable to that injury; and/or (3) Claimant’s current work capacity.
(a) Dr. Harris
16. Dr. Harris is board certified in internal medicine and has been Claimant’s primary care provider since 2004. He is well-positioned, therefore, to evaluate and compare Claimant’s low back condition both before and after the February 2007 work injury.
17. Dr. Harris acknowledged that prior to February 2007 Claimant had some documented degenerative disc disease in his lumbar spine, and also that he experienced intermittent episodes of low back pain. In Dr. Harris’ opinion, the February 2007 injury aggravated Claimant’s underlying disc disease to the point where it became chronic, increased in severity and now markedly interferes with his ability to engage in both work and daily living activities. Based on his experience with similarly afflicted patients, Dr. Harris does not believe that Claimant’s condition is likely to improve.
18. At Dr. Harris’ referral, in May 2009 Claimant underwent a functional capacity evaluation. The results indicated that Claimant could perform some tasks to a sedentary work level, but that due to his limited tolerance for lifting, carrying, sitting, standing and walking, he lacked the capacity to sustain even sedentary work over the course of an eight-hour work day. The evaluation did not indicate the extent to which Claimant might be able to tolerate such work for less than eight hours per day.
19. In Dr. Harris’ opinion, the combination of Claimant’s chronic pain, his reliance on narcotic pain medications and his limited tolerance for sitting, standing, walking and driving make full-time gainful employment impossible. Dr. Harris attributes all of these limitations to Claimant’s February 2007 work injury. As a result of that injury, therefore, in Dr. Harris’ opinion Claimant is permanently and totally disabled.
20. Dr. Harris acknowledged that he has no special training in orthopedics, employability or vocational rehabilitation.
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21. Dr. Harris testified that he could not recall prescribing a special lift chair for Claimant, but that generally he would not prescribe a medical device if he did not feel it was medically necessary.
(b) Dr. White
22. At his attorney’s referral, in January 2009 Claimant underwent an independent medical evaluation with Dr. White, a specialist in occupational medicine. Dr. White interviewed Claimant, reviewed his medical records and conducted a physical examination.
23. Dr. White observed that although Claimant had suffered from intermittent low back pain in the past, after his February 2007 fall at work his condition both worsened acutely and became chronic. Since the fall, furthermore, Claimant has never returned to his baseline status or level of functioning. From this Dr. White concluded, to a reasonable degree of medical certainty, that Claimant’s current condition could not be characterized as a temporary flare-up, but rather represents an aggravation of his preexisting condition causally related to his fall at work.
24. Dr. White expressed no concerns that Claimant was faking his symptoms or otherwise malingering. He acknowledged that his opinion was based primarily on Claimant’s subjective pain complaints, and particularly the history he gave as to how these changed after February 2007. It is in the nature of low back pain, however, to be a subjective phenomenon. There is, as Dr. White noted, no “pain thermometer.” I find this testimony persuasive.
25. In the course of his examination, Dr. White observed evidence of both muscle guarding and asymmetrical loss of range of motion. Although he neglected to note these findings in the physical exam portion of his report, I find credible his assertion that he would not have included them in his assessment had he not in fact observed them. Based on those findings, and with reference to the AMA Guides to the Evaluation of Permanent Impairment (5th ed.), Dr. White rated Claimant with an 8% whole person impairment referable to his lumbar spine.
26. Dr. White did not comment on Claimant’s work capacity.
(c) Dr. Backus
27. At Defendant’s request, Claimant underwent two independent medical examinations with Dr. Backus, an occupational medicine specialist – the first in July 2007, the second in September 2010.
28. In the context of his July 2007 exam Dr. Backus diagnosed Claimant with chronic mechanical low back pain, which he related causally to an injury Claimant had suffered some twenty years earlier. According to Dr. Backus, this prior injury left Claimant’s back in a weakened condition such that it became more susceptible to re-injury from even minor trauma. But for the old injury, Dr. Backus stated, Claimant likely would have recovered from his February 2007 fall at work within only a few weeks.
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29. Dr. Backus determined that Claimant had reached an end medical result for his February 2007 injury by the time of his July 2007 evaluation.
30. As to work capacity, at the time of his July 2007 exam Dr. Backus determined that Claimant had at least a sedentary work capacity, so long as he was able to alternate sitting with standing, had only occasional use of stairs and did not use his right arm for lifting, overhead work or with it outstretched.1
31. In January 2009 Defendant requested a permanent impairment rating from Dr. Backus. Rather than re-evaluating Claimant, Dr. Backus referred back to his July 2007 findings to do so. Dr. Backus had not observed any evidence of either muscle guarding or asymmetrical loss of range of motion in that examination. He therefore rated Claimant with a 0% permanent impairment.
32. Dr. Backus last evaluated Claimant in September 2010. In addition to re-examining him, Dr. Backus also reviewed the more recent medical records, vocational rehabilitation reports, employment records and depositions. Based on this information, Dr. Backus concluded that Claimant had returned to his pre-February 2007 baseline level of chronic low back pain. Finding nothing to demonstrate that Claimant’s preexisting low back condition had objectively worsened, Dr. Backus concluded that his current symptoms were no longer causally related to his work injury.
33. Dr. Backus acknowledged that neither he nor any of Claimant’s treating physicians has ever been able to determine the exact etiology of Claimant’s low back pain. In Dr. Backus’ estimation, this is the case in at least 90 percent of all chronic low back pain patients.
34. As he had in 2007, Dr. Backus determined in his subsequent evaluation that Claimant still had a sedentary work capacity. In addition to recommending that Claimant be allowed to alternate sitting and standing, Dr. Backus also suggested that Claimant should work at his own pace and take short breaks to lie down. I find that these suggestions represent a reasonable way of addressing some of the deficits noted in Claimant’s May 2009 functional capacity evaluation.
35. Dr. Backus was unsure what Claimant’s daily work tolerance would be, especially initially. In his opinion, it is Claimant’s subjective pain and disability mind set that are restricting him, not the physical condition of his back per se. If he were to increase his activity level gradually, he might develop greater tolerance, improve his conditioning level and thereby be able to work more hours. I find this testimony credible.
1 Presumably this last restriction related to Claimant’s right shoulder injury, which at the time was still symptomatic.
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Claimant’s Vocational History and Current Work Status
36. Claimant is now 56 years old. His work history is varied and impressive. He has worked as a deputy sheriff, a car salesman, a pastor, a youth runaway counselor, an alcohol and drug counselor and an anger management counselor. The latter jobs Claimant was able to secure, maintain and excel at despite having only a high school education, with no college coursework or credits whatsoever. Claimant has attended numerous seminars and training sessions ancillary to his employment over the years.
37. Because Claimant was restricted from climbing stairs following his February 2007 injury, he was unable to return to work at Defendant’s halfway house.
38. Claimant has been receiving social security disability benefits since August 2008. In order to avoid an offset against his monthly social security benefit, he is limited to no more than approximately $1,000.00 in monthly wages.
39. In the summer of 2009 Claimant began working as a volunteer member of the Newport Community Justice Center’s Reparative Board. The board is comprised of community members who hear cases referred from the court system and determine how a criminal offender might best repair the harm caused by his or her offense. The board meets monthly, typically for 2 to 3 hours. Dara Wiseman, the board’s staff coordinator, testified credibly that Claimant is able to participate fully in meetings, though he typically alternates sitting and standing throughout. Claimant has missed some meetings since joining the board, but Ms. Wiseman could not recount exactly how many were due to low back pain as opposed to other health issues.
40. In January 2010 Jess Tatum, the director of the Newport Community Justice Center, approached Claimant with an offer to become a coordinator in the Center’s Circles of Support and Accountability (COSA) program. The goal of the COSA program is to provide a network of volunteers to assist recently released criminal offenders in making a successful transition from prison to the community. The coordinator’s role is to assemble the appropriate volunteers for each offender, and then once the support “circle” is formed, to provide leadership, training and assistance as necessary.
41. Claimant accepted Mr. Tatum’s offer and entered into a contract whereby he would be paid $15.00 per hour for his services as a COSA coordinator. The contract provided that Claimant’s time commitments would vary with need and thus no set work schedule was established. Mr. Tatum testified credibly that Claimant’s target was to work approximately 15 hours per week. Claimant acknowledged that at this rate his monthly earnings would stay below his social security disability offset trigger.
42. In calendar year 2010 Claimant worked a 15-hour week only once. On two other occasions he worked 11 and 12 hours respectively. There were 22 weeks during which he did not work at all. Claimant’s average for the remaining 27 weeks was not quite 5 hours per week.
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43. Claimant is able to perform some of his COSA responsibilities from home, either by computer or by phone. At these times, he can sit, stand, recline or take breaks as necessary. Many of Claimant’s responsibilities require in-person contact, however, for example, meetings with still incarcerated and/or recently released offenders, with parole officers and with other COSA volunteers. Both Claimant and Mr. Tatum testified credibly that it is Claimant’s inability to attend such meetings that is limiting his weekly hours.
44. Based on Claimant’s work experience and notwithstanding that he lacks a college degree, Mr. Tatum believes that Claimant is the best-qualified COSA coordinator in the program. He has great confidence in Claimant’s ability to do the job and wants to continue working with him in the future. Unfortunately, Claimant’s inability to maintain consistent work hours is a formidable barrier. To overcome this obstacle, Mr. Tatum has taken to assigning a co-coordinator to Claimant’s cases, so that when Claimant is unable to attend to a work assignment the co-coordinator can fill in for him.
45. Claimant has been working with Ken Yeates, a Vermont-licensed vocational rehabilitation counselor, since he was determined entitled to such services in March 2010. Unfortunately, his unrelated health issues precluded him from participating in vocational rehabilitation planning through the summer of 2010. By mid-October, however, Mr. Yeates reported that Claimant had lost weight and appeared able to move more easily and with less discomfort.
46. Mr. Yeates has fashioned a return to work plan aimed at increasing Claimant’s COSA coordinator work to a consistent 15 hours per week. This is what Claimant feels is achievable physically, plus it will not affect his social security disability income. To accomplish this goal, Mr. Yeates proposes to purchase new computer equipment for Claimant’s use and to improve his keyboarding and computer skills. The anticipated cost of Mr. Yeates’ plan is $1,150.00.
47. I find that Mr. Yeates’ plan presents a cost-effective way of increasing Claimant’s general marketability from a vocational rehabilitation perspective. However, it does not acknowledge what both Claimant and Mr. Tatum identified as the key factor limiting Claimant’s capacity to work more hours in his current job, which is his inability to attend in-person meetings. In that respect, I find that the plan as currently written is unlikely to accomplish its stated goal, though it may be an appropriate starting point for future vocational rehabilitation planning.
48. Claimant’s average weekly wage at the time of his injury was $467.20. If he was to work 15 hours per week at his current COSA coordinator pay rate ($15.00 per hour), his weekly gross pay would total $225.00. Combining these wages with Claimant’s social security disability income would approximate his pre-injury average weekly wage.
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Expert Vocational Rehabilitation Opinions
49. Each party presented its own vocational rehabilitation expert opinion as to whether Claimant is now permanently and totally disabled – James Parker on Claimant’s behalf, Fran Plaisted on Defendant’s.
(a) James Parker
50. Mr. Parker has a master’s degree in counseling and more than 40 years experience in the field of vocational rehabilitation. He is not a licensed vocational rehabilitation counselor in Vermont.
51. Mr. Parker described Claimant’s ability to secure his current COSA coordinator position as “impressive” given his lack of basic credentials for work of this type. According to his research, 92 percent of those employed in the social work sector have at least some college credit, if not a college degree. Mr. Parker attributed Claimant’s success in the field to the network of contacts he has managed to develop over the years and, most recently, to an extremely accommodating employer.
52. Mr. Parker characterized Claimant’s current COSA coordinator job as so highly accommodated as to be “basically non-competitive.” Absent the in-person interactions and relationship building typically associated with counseling work, according to Mr. Parker Claimant is not even performing the essential duties of the job. Mr. Parker described Claimant’s position as unique, and doubted that he would be able to replicate it in any other counseling environment.
53. Based on Claimant’s track record since beginning his COSA coordinator work, Mr. Parker was not hopeful that he would be able to increase his hours to a consistent 15 per week, even with vocational rehabilitation. He acknowledged the possibility that Claimant might be able to transfer his work experience into college credit, thus improving his employability in the counseling field at least from a credentialing standpoint. Even were he to do so, however, in Mr. Parker’s opinion Claimant’s pain, fatigue and lack of endurance are too limiting to sustain employment in any well-known branch of the labor market. On those grounds, Mr. Parker concluded that Claimant is permanently and totally disabled.
54. I find credible Mr. Parker’s assessment that Claimant’s current level of sporadic work does not qualify as regular gainful employment. It is not sufficiently consistent to be “regular,” and it does not generate sufficient income to be “gainful.”
(b) Fran Plaisted
55. Ms. Plaisted has a masters’ degree in rehabilitation counseling and more than 20 years experience in the vocational rehabilitation field. She is a Vermont licensed vocational rehabilitation counselor.
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56. In Ms. Plaisted’s opinion, vocational rehabilitation services are available that reasonably might restore Claimant to suitable employment. For that reason, it is premature to declare him to be permanently and totally disabled.
57. Ms. Plaisted detailed various accommodations that might enable Claimant to meet his target of 15 hours per week in his current COSA coordinator job. Some of these are aimed at increasing his productivity at home. For example, an adjustable workstation would allow him to alternate sitting and standing, and a stair lift would allow him to move his home office to a quieter room upstairs. To increase his productivity outside the home, Ms. Plaisted suggested videoconferencing as a means of facilitating greater interaction with both clients and volunteers.
58. Based on Claimant’s employment history, Ms. Plaisted identified a number of sedentary jobs for which Claimant appears to have transferable skills. Should he be unable to increase his COSA coordinator hours, therefore, the next step in the vocational rehabilitation process will be to investigate whether he might be able to use these skills to obtain suitable work with a different employer. This step will involve conducting a labor market survey to determine which jobs exist in Claimant’s labor market area. If additional training is necessary for a particular job or set of jobs, that might be considered as well. A repeat functional capacity evaluation also may be useful, as some of Claimant’s unrelated health issues have improved since the evaluation he underwent in 2009. That evaluation concluded only that Claimant was incapable of full time work, furthermore, and did not address his capacity for part time work.
59. I find credible Ms. Plaisted’s assertion that Claimant has not yet completed the vocational exploration process. Consistent with Mr. Parker’s testimony, however, Ms. Plaisted acknowledged that no amount of vocational rehabilitation services can change a person’s physical work capacity.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Claimant asserts that as a result of his February 4, 2007 work injury he is now permanently and totally disabled under the “odd lot” provision of 21 V.S.A. §644(b). Defendant argues that Claimant’s current medical condition is no longer causally related to his compensable work injury. Even if it is, Defendant asserts that Claimant has not sustained his burden of proving permanent total disability.
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Causal Relationship
3. Conflicting expert medical opinions were presented as to the causal relationship, if any, between Claimant’s current condition and his work injury. Testifying on Claimant’s behalf, Drs. Harris and White both conceded that Claimant had suffered from intermittent episodes of low back pain prior to February 2007, likely due to degenerative disc disease in his lumbar spine. Both concluded, however, that the work injury aggravated this preexisting condition to the point where it worsened acutely, became chronic and now significantly interferes with Claimant’s function. In contrast, Dr. Backus testified that Claimant’s condition has returned to its pre-injury baseline, with no evidence that it had objectively worsened as a result of the February 2007 work injury.
4. 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).
5. All of the experts here are well qualified to render opinions as to the causal relationship between Claimant’s February 2007 injury and his current condition. Each of them conducted a sufficiently comprehensive evaluation, based on a sufficient review of the pertinent medical records, to support their opinions. As to the other factors, however, I conclude that the opinions expressed by Drs. Harris and White are the most persuasive.
6. Dr. Harris’ credibility benefits from his longstanding relationship as Claimant’s primary care provider. More so than either of the other two experts, he was best qualified to compare and contrast Claimant’s condition before and after the February 2007 injury.
7. As to the objective support underlying each expert’s opinion, I am mindful of the fact, as Dr. Backus acknowledged, that it is rarely possible to determine the exact etiology of chronic low back pain. It is, as Dr. White described, an inherently subjective phenomenon, and there is no “pain thermometer” by which to measure it. In that context, therefore, “objective support” may take the form not of medically verifiable findings such as one might see on an MRI study, but rather of credible evidence showing how a person’s pain has impacted his or her ability to function. See, e.g., Badger v. BWP Distributors, Inc., Opinion No. 05-11WC (March 25, 2011).
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8. There is sufficiently credible objective evidence to establish that Claimant’s condition worsened appreciably as a result of the February 2007 work injury. Pain that previously had been intermittent became chronic. It came to interfere with both work and recreational activities. It did not respond to narcotic pain medications and even now is poorly controlled. It has required lifestyle changes that were never necessitated before. Given all of these changes, for Dr. Backus to conclude in September 2010 that Claimant had returned to his pre-injury baseline of low back pain, such that his current complaints were no longer causally related to his February 2007 work injury, is simply not persuasive. The opinions of Drs. Harris and White are more credible in this regard.
9. I conclude that Claimant has sustained his burden of proving that his current condition is causally related to his February 2007 work injury.
Permanent Total Disability
10. Claimant contends that as a consequence of his work injury he is now permanently and totally disabled. Defendant asserts that Claimant has a work capacity and has not yet exhausted his vocational rehabilitation options. Therefore, it argues, it is premature to declare him permanently and totally disabled.
11. 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.
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12. 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.
13. A finding of odd lot permanent total disability is not to be made lightly. In a system that embraces successful return to work as the ultimate goal, and vocational rehabilitation as a critical tool for achieving it, to conclude that an injured worker’s employment barriers realistically cannot be overcome means admitting defeat, acknowledging that he or she probably will never work again. As Rule 11.3100 makes clear, such a finding should not be made until first, the injured worker’s physical capabilities are accurately assessed, and second, all corresponding vocational options are comprehensively considered and reasonably rejected. Hill v. CV Oil Co., Inc., Opinion No. 15-09WC (May 26, 2009); Hurley v. NSK Corporation, Opinion No. 07-09WC (March 4, 2009); Gaudette v. Norton Brothers, Inc., Opinion No. 49-08WC (December 3, 2008).
14. In this case, Claimant underwent a functional capacity evaluation in May 2009. Although the results indicated that he lacked even a sedentary work capacity, it is unclear to what extent his other health conditions, some of which now have resolved, might have impacted the results. Perhaps more important in the context of this claim, the 2009 evaluation considered only Claimant’s capacity for full-time work, and did not address what his part-time work capacity might be.
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15. Dr. Backus presented a more credible assessment of Claimant’s current work capacity, one that will accommodate sedentary work on at least a part time basis. His suggestions as to allowing Claimant to work at his own pace and to alternate positions target at least some of the endurance deficiencies that the 2009 functional capacity evaluation revealed. I conclude from this that Claimant’s work capacity is not so limited as to preclude further consideration from a vocational rehabilitation perspective.
16. Claimant’s vocational expert, Mr. Parker, concluded that even with vocational rehabilitation assistance Claimant’s pain, fatigue and endurance levels are so limiting as to render him permanently incapable of regular gainful employment. I disagree. As Ms. Plaisted suggested in her testimony, even at his current level of functioning viable vocational options exist for someone with Claimant’s transferable skills. Improving his computer skills, modifying his home office, using videoconferencing technology, obtaining college credit for his work experience – these are all steps that cannot help but improve Claimant’s employment potential, whether it be as a COSA coordinator or in some other work setting.
17. Vermont’s workers’ compensation rules establish a hierarchy of options that a vocational rehabilitation counselor is to consider in drafting a suitable return to work plan. Workers’ Compensation Rule 55.2000. The first step in the hierarchy is to return the claimant to his or her pre-injury employer, in either a modified or a different job. Workers’ Compensation Rule 55.2100. If that fails, then the second step is to consider other employers. Workers’ Compensation Rule 55.2200. Steps three, four and five involve retraining, from on-the-job through formal education. Workers’ Compensation Rules 55.2300-55.2500. The final step considers self-employment as an option. Workers’ Compensation Rule 55.2600.
18. Throughout the process, the counselor’s job is to determine first, at what step in the hierarchy the injured worker is likely to become re-employed, and second, what type of assistance is necessary in order to make that happen. If it becomes apparent that the claimant is unlikely to achieve success at one stage of the hierarchy, the plan can be amended so that both counselor and claimant can consider the next step. Workers’ Compensation Rule 55.6000. In this way, the rules envision a process whereby all reasonable return to work options are considered before either party throws in the towel.
19. I conclude that Mr. Parker’s analysis of Claimant’s return to work potential focused primarily on his inability to sustain regular gainful employment in his current COSA coordinator position. It did not adequately consider whether with the appropriate vocational rehabilitation assistance Claimant might be employable at some other level of the hierarchy, however.
20. It is Claimant’s burden of proof to show that in his labor market area no viable vocational options exist for a person with his physical capabilities, his limitations and his transferable job skills. As the vocational exploration process has only just begun, I am as yet unconvinced that this is the case.
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21. I conclude that Claimant has failed to establish that he is permanently and totally disabled.
Permanent Partial Disability
22. The parties presented conflicting expert testimony as to the extent of the permanent partial disability Claimant suffered as a consequence of his February 2007 work injury. Having observed evidence of both muscle guarding and asymmetrical loss of range of motion, Dr. White rated Claimant with an 8% whole person impairment. Dr. Backus observed no such evidence, and therefore found no impairment.
23. These two experts are well known to this Department, and I consider them equally proficient at rating the extent of an injured worker’s permanent impairment. The process is not an exact science, however. What one doctor may observe during the course of an examination, another doctor may not see.
24. In this case, I conclude that Dr. White’s opinion is more credible, and that Claimant suffered an 8% whole person permanent impairment as a result of his February 2007 work injury. Reclining Lift Chair
25. Claimant asserts that the reclining lift chair that Dr. Harris prescribed in July 2008 constitutes a reasonable medical supply necessitated by his February 2007 injury. Claimant seeks reimbursement from Defendant for the cost of the chair in accordance with 21 V.S.A. §640(a).
26. Dr. Harris could remember none of the details of his prescription. His assertion that he generally does not prescribe a medical device unless he feels it is medically necessary is insufficient to establish that the chair was necessitated by Claimant’s February 2007 work injury. I conclude that Claimant is not entitled to reimbursement, therefore.
Costs and Attorney Fees
27. Claimant has submitted a request for costs totaling $4,967.19 and attorney fees in an amount to be determined. Claimant is entitled to an award of only those costs that relate directly to the claims upon which he prevailed, Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003), namely (a) causal relationship; and (b) permanent partial disability. As for attorney fees, in cases where a claimant has only partially prevailed, the Commissioner typically exercises her discretion to award fees commensurate with the extent of the claimant’s success. Subject to these limitations, Claimant shall have 30 days from the date of this opinion to submit evidence of his allowable costs and attorney fees.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Permanent partial disability benefits in accordance with an 8% permanent impairment referable to the spine, in accordance with 21 V.S.A. §648;
2. Interest on the above amount beginning on October 29, 2007 and calculated in accordance with 21 V.S.A. §664;
3. Costs and attorney fees in amounts to be determined, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 6th day of July 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.

Lorrie Cahill v. Benchmark Assisted Living (April 27, 2012)

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

Lorrie Cahill v. Benchmark Assisted Living (April 27, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Lorrie Cahill Opinion No. 13-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Benchmark Assisted Living
For: Anne M. Noonan
Commissioner
State File No. BB-53987
OPINION AND ORDER
Hearing held in Montpelier on January 27, 2012
Record closed on March 12, 2012
APPEARANCES:
William Skiff, Esq., for Claimant
Craig Matanle, Esq., for Defendant
ISSUE PRESENTED:
Is proposed lumbar fusion surgery a medically reasonable and necessary treatment for Claimant’s work-related chronic low back pain?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Curriculum vitae, Robert Monsey, M.D.
Defendant’s Exhibit A: Curriculum vitae, Verne Backus, M.D., M.P.H.
Defendant’s Exhibit B: ACOEM Occupational Medicine Practice Guidelines
Defendant’s Exhibit C: Brox, JI et al., Randomized Clinical Trial of Lumbar Instrumented Fusion and Cognitive Intervention and Exercises in Patients with Chronic Low Back Pain and Disc Degeneration, SPINE, 2003; 28(17):1913-1921; Brox, JI et al, Lumbar instrumented fusion compared with cognitive intervention and exercises in patients with chronic back pain after previous surgery for disc herniation: A prospective randomized controlled study, Pain, 2006; 122:145-155
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Defendant’s Exhibit D: Fairbank, J et al., Randomised controlled trial to compare surgical stabilization of the lumbar spine with an intensive rehabilitation programme for patients with chronic low back pain: the MRC spine stabilization trial, BMJ, doi:10.1136/bmj.38441.620417BF (23 May 2005)
Defendant’s Exhibit E: Fritzell, P et al., 2001 Volvo Award Winner in Clinical Studies: Lumbar Fusion Versus Nonsurgical Treatment for Chronic Low Back Pain, SPINE, 2001; 26(23):2521-2534
CLAIM:
Medical benefits pursuant to 21 V.S.A. §640(a)
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.
3. Claimant has worked as a licensed practical nurse at The Arbors, a dementia care community owned by Defendant, since 2007. Her duties have included performing assessments on new residents, training new staff, completing patient charts and often, lifting residents and assisting with bed, bathroom and chair transfers. The latter function in particular is physically strenuous.
Claimant’s Work Injury and Subsequent Medical Treatment
4. On October 9, 2009 Claimant was assisting a wheelchair-bound resident with a bathroom transfer. Midway through the transfer, the resident, who weighed approximately 200 pounds, began to fall. Claimant supported his weight and guided him back into the wheelchair. As she did so, she felt a pull in the right side of her lower back.
5. Claimant promptly reported her injury and then sought medical care in accordance with Defendant’s established procedures. To date, her treatment has been conservative in nature, as overseen by Dr. Bjornson, the provider to whom Defendant initially referred her. Claimant has undergone courses of physical therapy, osteopathic manipulation, epidural steroid injections, medial branch blocks and radiofrequency ablation. She has fully complied with all treatment recommendations, and has maintained a home exercise program that includes walking and daily exercise. Despite these efforts, none of the conservative therapies she has undergone have provided effective long-term relief of her symptoms.
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6. Since her injury Claimant has continued to suffer from low back pain, sometimes accompanied by a pinching sensation in her lumbosacral spine. The pain interferes with her sleep. It is relieved somewhat by sitting, and aggravated by standing or walking. It precludes her ability to engage in many of the recreational activities she used to enjoy, such as hiking with her family, playing with her grandchildren, snow shoeing, sledding and camping. At the formal hearing, Claimant became visibly and credibly upset when discussing these limitations.
7. After a relatively brief period of temporary total and/or partial disability, Claimant returned to work full time in January 2010. She was restricted, however, from lifting, pushing or pulling more than ten pounds. This restriction, which remains in effect today, precludes her from performing her full duties as a floor nurse. Claimant can no longer assist with patient transfers. She has difficulty getting down to floor level to assess a patient who has fallen. She frequently requires help from co-employees to complete tasks that she used to be able to undertake on her own. Having to do so, she stated, “makes me feel like I’m one of my patients instead of a whole person.” Again, Claimant became visibly and credibly upset when discussing the impact that the injury has had on her work.
8. To its credit, Defendant has fully accommodated Claimant’s work restrictions, and as a result she has continued to be employed there on a full time basis. As she did prior to her injury, Claimant works two days per week in the office, performing patient assessments and other administrative tasks. Clearly, however, her inability to do the type of direct patient care she enjoyed previously weighs heavily on her. Claimant testified credibly that she devotes her entire work day to dealing with her pain, to the point where at the end of every day she is exhausted. If her pain continues at its current level, she is concerned that she may not be able to maintain full time work at a job she loves. I find this concern to be justified.
Dr. Monsey’s Surgical Recommendation
9. Claimant has undergone numerous MRI scans since her injury. These have revealed mild degenerative changes from L4-5 to L5-S1, including a small central disc herniation at the latter level, but with no evidence of nerve root impingement.
10. At Dr. Bjornson’s referral, in October 2010 Claimant underwent an evaluation with Dr. Monsey, a board certified orthopedic surgeon. Dr. Monsey diagnosed mechanical low back pain, with no evidence of myelopathy, radiculopathy or spinal instability.
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11. To assist in determining the source of her pain, at Dr. Monsey’s referral Claimant underwent further diagnostic testing, known as discography. Proponents of discography theorize that the test provides a means of identifying whether a particular disc is the source of a patient’s mechanical low back pain. During testing, needles are inserted in the middle of various discs, and the patient’s pain response is noted accordingly. If the patient experiences “concordant pain,” that is, pain identical in location and character to his or her chronic pain, then the disc injected is presumed to be the pain generator. If the patient fails to experience concordant pain, then the injected disc is presumed not to be the pain generator.
12. Noting the correlation between Claimant’s reported symptoms, her diagnostic imaging studies and her response to discography, Dr. Monsey identified her L4-5 and L5-S1 discs as the source of her low back pain. As treatment, he has recommended fusion surgery. The procedure he proposes is complicated. It involves both anterior and posterior incisions, with placement of a cage to support the spine from the front and pedicle screws to support it from the back.
13. In Dr. Monsey’s estimation, there is a 70 percent chance that the fusion surgery he has proposed will provide Claimant with good relief of symptoms, a 30 percent chance that it will not result in any appreciable change, and a 1 to 2 percent chance that it will cause her symptoms to worsen.
14. Dr. Monsey has characterized the proposed fusion surgery as one involving a quality of life decision for Claimant. It is based solely on her assessment of how severe her pain is and how much it impacts the quality of her life, balanced against the risk that surgical intervention will not work and might even cause her pain to increase.
15. Claimant’s primary treating physician, Dr. Bjornson, has expressed support for Dr. Monsey’s proposed surgery as a reasonable treatment option given Claimant’s failure to respond adequately to conservative treatment measures.
16. Claimant testified credibly that she understands the potential risks of surgery as Dr. Monsey explained them to her, including the risk that she might suffer serious surgical complications, that she might require repeat surgery and/or that the surgery might prove ineffective. In her estimation, the risks of undergoing the procedure are more than outweighed by the possibility that it will increase the quality of her life and restore her ability to function.
Dr. Backus’ Opinion; the ACOEM Practice Guidelines
17. At Defendant’s referral, Claimant has undergone two independent medical examinations with Dr. Backus, the first in April 2010 and more recently in January 2012. Dr. Backus is a board certified specialist in occupational and environmental medicine. He also holds a master’s degree in public health. Dr. Backus’ educational background includes a focus on epidemiology and statistics. With this training, he strives to analyze and incorporate the results of so-called “evidence-based” medical research studies into his treatment recommendations.
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18. Based both on his review of Claimant’s medical records and on his own physical examination, Dr. Backus has concluded, to a reasonable degree of medical certainty, that her current complaints are causally related to her compensable work injury. He disagrees, however, with Dr. Monsey’s surgical treatment recommendation. In Dr. Backus’ opinion, fusion surgery does not constitute reasonable and necessary medical treatment for the type of mechanical low back pain from which Claimant suffers.
19. In formulating his opinion as to the reasonableness of Dr. Monsey’s proposed surgery, Dr. Backus relied heavily on the practice guidelines published by the American College of Occupational and Environmental Medicine (ACOEM). In developing these practice standards, which encompass a wide range of occupational injury treatment strategies, the ACOEM uses panels of specialists to identify and review original research studies and then grade them for design, execution and analysis of results. Based on these reviews, the panels evaluate the strength of evidence showing that a particular treatment, test or intervention improves important health and functional outcomes. Balancing the potential benefit against both the potential harm and the anticipated cost, the ACOEM decides whether to issue a recommendation either for or against each treatment’s use.
20. In matters germane to this claim, the ACOEM has studied both the use of discography as a diagnostic tool and spinal fusion as a treatment option for patients with non-specific, mechanical low back pain. It has designated both interventions as “moderately not recommended,” meaning that at least “moderate evidence1” exists that they are either ineffective and/or that the harms or costs outweigh their benefits.
21. As to discography, the ACOEM practice guideline cites “quality studies” finding that the test’s positive predictive value is at or below 50 percent, meaning that it does not reliably indicate what particular disc is the source of a patient’s pain. The lack of standardized technique, the invasive nature of the test and potential adverse side effects also mandate against its use as a surgical planning tool, according to the ACOEM.
22. In explaining the rationale behind its spinal fusion practice guideline, the ACOEM discussed four “high quality” studies at some length. All four studies, copies of which were introduced into evidence, compared the efficacy of treating patients suffering from mechanical low back pain with surgical intervention (lumbar fusion) as opposed to non-operative therapies (either ongoing physical therapy or a combination of cognitive behavioral therapy and exercise). The earliest study, conducted in 2001, showed significantly better outcomes in the surgical group, in terms of both diminished pain and decreased disability, but was criticized by subsequent researchers for its faulty design. No clear evidence emerged from the later studies, conducted in 2003, 2005 and 2006, that spinal fusion surgery produced significantly better outcomes than non-operative therapies. With no definitive evidence of the surgery’s efficacy, and factoring in what it terms a “significant rate of serious complications” and a “substantial cost,” the ACOEM currently recommends against “routinely providing” lumbar fusion as treatment for chronic non-specific low back pain.
1 The ACOEM defines “moderate evidence” as involving at least one “high quality” study or multiple “moderate quality” studies relevant to the topic and the working population.
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23. It is important to note that none of the four studies specifically discussed in the ACOEM practice guideline concluded that lumbar fusion was ineffective at treating mechanical low back pain. Indeed, the reported results included a 33 percent reduction in back pain among the surgical patients in the 2001 study, a 70 percent surgical success rate in the 2003 study, and a 50 percent surgical success rate in the 2006 study. Rather, with the exception of the 2001 study the primary finding of the more recent studies was simply to establish the efficacy of non-operative interventions, particularly those with both a cognitive behavioral and an exercise component, as an effective alternative to surgery, one that carries fewer potential risks and comes at a lower cost than fusion.2
24. In formulating his opinion as to the efficacy of Dr. Monsey’s proposed fusion surgery as treatment for Claimant’s low back pain, Dr. Backus relied not only on the ACOEM practice guidelines but also on his own clinical experience. He has treated many patients for whom fusion surgery has failed to provide effective long-term relief. Dr. Backus acknowledged, however, that as a surgeon Dr. Monsey likely has followed more fusion patients. He agreed, furthermore, that were Dr. Monsey to perform the surgery he has proposed, this would not constitute malpractice or qualify in any way as outside the accepted medical standard of care.
25. Neither Dr. Monsey nor Dr. Bjornson has ever recommended that Claimant undergo a combination of cognitive behavioral therapy and intensive exercise such as that offered to the non-operative groups in the 2003, 2005 and 2006 research studies. Given that Claimant has continued to work full time, Dr. Backus acknowledged that she likely has already incorporated at least some of the components of such a program into her life.
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 issue here revolves solely around the medical necessity question. Both parties’ experts agree that Claimant’s current condition is causally related to her compensable injury. Where they disagree is as to whether fusion surgery is a medically appropriate treatment option for her mechanical low back pain.
2 To compare, the non-operative success rate in the 2003 study was 76 percent; in the 2006 study it was 48 percent.
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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. I conclude here that Dr. Monsey’s opinion is the most persuasive. His status as Claimant’s treating physician merits serious consideration. He is a well qualified surgeon, whose treatment recommendation is based on his own experience with similar patients. I have no reason not to believe his prediction that the fusion surgery he has proposed likely will be successful.
5. Neither the ACOEM practice guidelines nor the research studies upon which Dr. Backus relied are sufficient to convince me otherwise. None of those sources went so far as to advocate against the use of fusion surgery in every circumstance, or even to posit that it is an ineffective treatment. Even notwithstanding such evidence-based research, therefore, the door remains open for an experienced treating surgeon to recommend the procedure for a particular patient, as Dr. Monsey has done here.
6. The determination whether a treatment is reasonable must be based primarily on evidence establishing the likelihood that it will improve the patient’s condition, either by relieving symptoms and/or by maintaining or increasing functional abilities. Quinn v. Emery Worldwide, Opinion No. 29-00WC (September 11, 2000). An injured worker’s subjective preferences cannot render a medically unreasonable treatment reasonable. See, Britton v. Laidlaw Transit, Opinion No. 47-03WC (December 3, 2003). As is the case with many aspects of medical decision-making, however, there can be more than one right answer, and thus more than one reasonable treatment option for any given condition. Lackey v. Brattleboro Retreat, Opinion No. 15-10WC (April 21, 2010). I conclude that this is the case here.
7. I acknowledge what the available research appears to show, namely that in appropriate circumstances a combination of cognitive behavioral therapy and intensive exercise may be as effective as fusion surgery at treating mechanical low back pain. To the extent that this non-surgical option comes with fewer risks and lower costs, in some cases it may well be the more attractive alternative. This does not mean, however, that the surgical option is automatically rendered unreasonable as a result. Lackey, supra. The test remains one of balancing the relative risks and benefits to a particular patient in a particular case. See, e.g., Estate of George v. Vermont League of Cities and Towns, 2010 VT 1 (cautioning against use of epidemiological studies to establish specific work-related causation in a workers’ compensation claim).
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8. Although the workers’ compensation statute mandates that employers pay only for “reasonable” medical treatment, it does not in any way require that injured workers thereby forfeit the right to direct their own medical care. Lackey, supra. I am convinced by the evidence here that Dr. Monsey has proposed a reasonable treatment option, one that likely will relieve Claimant’s symptoms and improve her ability to function, and that Claimant has chosen it after thoughtfully weighing the inherent risks against the potential benefits. This is her prerogative.
9. I conclude that the fusion surgery Dr. Monsey has proposed constitutes medically necessary treatment for Claimant’s work injury, and is thus reasonable under the circumstances. Defendant is therefore obligated to pay for the medical and indemnity costs associated with it.
10. As Claimant has prevailed on her claim for benefits, she is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit her itemized claim.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Medical benefits associated with Dr. Monsey’s proposed fusion surgery, in accordance with 21 V.S.A. §640(a); and
2. Costs and attorney fees in amounts to be established, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 27th day of April 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.

Patricia Jacobs v. Metz and Associates, Ltd. dba Valley Vista (January 11, 2012)

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

Patricia Jacobs v. Metz and Associates, Ltd. dba Valley Vista (January 11, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Patricia Jacobs Opinion No. 02-12WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Metz and Associates, Ltd. For: Anne M. Noonan
d/b/a Valley Vista Commissioner
State File No. Z-01481
OPINION AND ORDER
Hearing held in Montpelier, Vermont on September 19 and 20, 2011
Record closed on November 14, 2011
APPEARANCES:
Charles Powell, Esq., for Claimant
Corina Schaffner-Fegard, Esq., for Defendant
ISSUES:
1. Does Claimant suffer from chronic regional pain syndrome causally related to her accepted work injury?
2. Is Claimant entitled to a spinal cord stimulator trial as reasonable and necessary medical treatment for her accepted work-related injury?
EXHIBITS
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Dr. Lake’s medical records
Claimant’s Exhibit 2: Harden RN et al., Proposed New Diagnostic Criteria for Complex Regional Pain Syndrome, Pain Medicine, 2007; 8(4):326-331
Defendant’s Exhibit A: Curriculum vitae, Dr. Leon Ensalada
Defendant’s Exhibit B: Curriculum vitae, Dr. Albert Drukteinis
Defendant’s Exhibit C: Video of Dr. Ensalada’s Examination
Defendant’s Exhibit D: Video of Dr. Drukteinis’ Examination
CLAIM:
Medical benefits pursuant to 21 V.S.A. § 640
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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 files relating to this claim.
3. Claimant worked for Defendant as a dietary aide. On December 17, 2007 she felt and heard a pop in her right wrist as she was loading a five-gallon crate of milk into a dispenser. Her wrist swelled and pain radiated up to her shoulder. The emergency room physician diagnosed tendonitis of the right wrist. Defendant accepted this injury as compensable and began paying workers’ compensation benefits accordingly.
Medical Treatment
4. Initially Claimant treated conservatively for her injury. Thereafter, between April 2008 and February 2009 she underwent three surgeries – first a carpal tunnel release, then surgical repair of a cartilage (TFCC) tear in her wrist, and finally an ulnar nerve decompression. After each surgery Claimant underwent additional conservative treatment, including physical and occupational therapy, injections and pain medications. Despite her full compliance with all treatment recommendations, none provided long-lasting relief of symptoms. To the contrary, Claimant’s right upper extremity became increasingly painful.
5. By January 2010 Claimant’s treating physician had concluded that she was suffering from chronic pain, at a level beyond what seemed reasonable for the surgeries she had undergone. Claimant thus was referred for pain management services to Dr. Lake, a board certified anesthesiologist. Dr. Lake concluded that Claimant was suffering from chronic regional pain syndrome (CRPS) in her right upper extremity.
6. CRPS is a disorder of the sympathetic nervous system. It is characterized by continuing regional pain that (a) occurs both spontaneously and with movement; (b) extends beyond the territory of a specific peripheral nerve; and (c) is disproportionate in time or degree to the usual course of any inciting injury.1
1 CRPS can be diagnosed as either Type I, in which evidence of obvious nerve damage is lacking, or Type II, in which nerve damage is objectively established. Claimant here was diagnosed with CRPS, Type II based on electrodiagnostic confirmation of an injury to her right ulnar nerve. See Finding of Fact No. 18, infra.
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7. The signs and symptoms of CRPS tend to predominate at the far end of an affected extremity. Clinical findings indicative of the syndrome are generally categorized as follows:
• Sensory, including hyperesthesia (heightened sensitivity of skin to touch) and allodynia (pain from stimuli that are not normally painful);
• Vasomotor, including asymmetry of skin temperature and either changes and/or asymmetry of skin color;
• Sudomotor and edema, including edema and/or sweating changes and/or sweating asymmetry; and
• Motor/trophic, including decreased range of motion and/or motor dysfunction (weakness, tremor, involuntary muscle contractions) and/or trophic changes to hair, nails or skin.
8. The currently accepted diagnostic criteria for CRPS, as reflected in the AMA Guides to the Evaluation of Permanent Impairment (6th ed.), were developed in 2007 at an invitation-only conference in Budapest. Known as the Harden criteria2, before diagnosing CRPS the clinician must make the following clinical findings:
• Continuing pain that is disproportionate to the inciting event;
• Patient reports at least one symptom in three of the four categories listed above;
• Patient displays at least one sign at the time of evaluation in two or more of the four categories listed above; and
• There is no other diagnosis that better explains the signs and symptoms.3
2 Harden RN et al., Proposed New Diagnostic Criteria for Complex Regional Pain Syndrome, Pain Medicine, 2007; 8(4):326-331.
3 Id., Table 3 at p. 330. The Harden criteria are somewhat more liberal than the criteria specified in the prior edition of the AMA Guides, which are used in Vermont to diagnose CRPS for the purpose of rating permanent impairment. See Bruno v. Directech Holding Co., Opinion No. 18-10WC (May 19, 2010).
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9. In Claimant’s case, Dr. Lake’s CRPS diagnosis was based on the following clinical findings:
• Significant color change in the outside region of the right wrist as compared to the left wrist;
• Hypersensitivity to touch (allodynia);
• Nail changes in the fourth and fifth digits on the right hand as compared with all other digits;
• Some limited strength with grip; and
• Hair changes in the right wrist area.
10. In addition to these observations, Dr. Lake also determined (a) that Claimant’s pain was out of proportion to what ordinarily would be expected following her three right upper extremity surgeries; and (b) that no other diagnosis better explained her signs and symptoms. I find that Dr. Lake’s CRPS diagnosis thus comported with the Harden criteria.
11. As treatment for Claimant’s CRPS, initially Dr. Lake recommended a course of stellate ganglion nerve blocks. Unfortunately, these failed to provide any effective long-term pain relief. Given her prior history of cocaine and alcohol abuse during her teenage years, Claimant was reluctant to accept narcotic pain medications as a treatment course, a decision that I find both credible and healthy. Thus faced with continuing pain and no effective relief, Dr. Lake suggested a spinal cord stimulator as a possible treatment course.
12. A spinal cord stimulator is a surgically implanted electronic device that blocks a peripheral nerve from transmitting painful sensations to the brain, and sends a tingling sensation up the spinal cord instead. To permanently implant a spinal cord stimulator is both invasive and costly; therefore, patients typically undergo a one-week trial with an external device to see if it is effective in reducing pain. Spinal cord stimulator candidates also must undergo psychological evaluation, to establish whether they understand not only the device’s purpose but also its limitations. In addition, they must show that they have a support network sufficient to assist them as needed.
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Expert Medical Opinions
13. The parties each offered several expert medical opinions on the two disputed issues: first, whether Claimant was appropriately diagnosed with CRPS; and second, whether she is an appropriate candidate for a spinal cord stimulator trial. All of the experts agree that Claimant suffers from chronic pain, and that her pain is real.
(a) Alexandria Noble, ARNP
14. Ms. Noble has been Claimant’s primary care provider since January 2008. She holds a master’s degree in nursing and a bachelor’s degree in social work. Many of Ms. Noble’s patients suffer from chronic pain. She is familiar with both CRPS generally and with the Harden diagnostic criteria.
15. Ms. Noble was confident that Claimant routinely met at least some of the Harden criteria at most of her office visits, and that she met all of them on more than one occasion. For example, Ms. Noble noted that during her March 28, 2011 examination Claimant complained of allodynia, excessive sweating, stiffness, decreased range of motion and decreased strength in her right hand. At that same visit Ms. Noble observed signs of increased sensitivity to light touch, sweating between her fingers, decreased range of motion and weakness in her right hand. In Ms. Noble’s opinion, Claimant was experiencing continuing pain that was disproportionate to what would have been expected following her three surgeries and that CRPS was the most reasonable explanation for her signs and symptoms on that day. I find Ms. Noble’s diagnostic observations and reasoning to be credible.
(b) Dr. Lake
16. As noted above, Dr. Lake first diagnosed Claimant with CRPS in January 2010, in accordance with the Harden criteria. Also as noted above, Dr. Lake is convinced that a spinal cord stimulator trial is a reasonable and necessary treatment option for Claimant to pursue at this time. This is so regardless of whether Claimant meets the diagnostic criteria for CRPS or whether her condition is more generally categorized as chronic neuropathic pain. Claimant already has undergone extensive conservative treatment, including cortisone injections, physical and occupational therapy, medication management and nerve blocks, but with little if any sustained pain relief. A spinal cord stimulator offers the benefit of a fairly simple procedure that could significantly enhance Claimant’s ability to function and thus improve her quality of life. I find this reasoning persuasive.
(c) Dr. Zweber
17. Dr. Zweber is board certified in both physiatry and electrodiagnostic testing. He has conducted tens of thousands of electrodiagnostic studies, and has treated more than a thousand CRPS patients.
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18. Dr. Zweber’s electrodiagnostic testing, conducted in December 2008, provided objective evidence of ulnar nerve damage in Claimant’s right upper extremity.
19. Dr. Zweber concluded, to a reasonable degree of medical certainty, that in Claimant’s case a spinal cord stimulator trial is both reasonable and necessary. In his opinion, spinal cord stimulators are a recognized and appropriate treatment for CRPS, Type II. Claimant is an appropriate candidate, furthermore, because she has tried alternative treatment options to no avail and risks even more significant worsening over time if further intervention is not offered. I find this reasoning to be persuasive.
(d) Dr. Bucksbaum
20. Dr. Bucksbaum is board certified in physical and rehabilitative medicine, pain management and as an independent medical examiner. During his 23 years in practice, he has dealt mainly with chronic injuries and chronic pain. Patients who are suffering from CRPS represent a large part of his current practice. Dr. Bucksbaum receives referrals for patients with CRPS from all around the country.
21. Dr. Bucksbaum also has impressive experience with spinal cord stimulators. He was involved in the original treatment studies for the device in the 1980’s. In his clinical practice, he has had at least a hundred patients who have used spinal cord stimulators as treatment, including some for upper extremity pain.
22. Claimant underwent an independent medical examination with Dr. Bucksbaum in November 2010. Based on that evaluation, which included a comprehensive review of Claimant’s medical records and diagnostic studies as well as a physical exam, Dr. Bucksbaum concluded, to a reasonable degree of medical certainty, that Claimant meets the Harden diagnostic criteria for CRPS. Specifically:
• Dr. Zweber’s electrodiagnostic studies provide objective evidence of an injury to Claimant’s right ulnar nerve;
• During Dr. Bucksbaum’s exam Claimant reported symptoms including allodynia, muscle weakness and nail changes, and exhibited signs including allodynia, asymmetry of skin temperature, dry skin and joint stiffness;
• Claimant’s pain was disproportionate to the inciting event; and
• No better explanation existed for the symptoms she reported and the signs he observed.
23. In compliance with the AMA Guides to the Evaluation of Permanent Impairment, Dr. Bucksbaum used calibrated instruments to measure grip strength, passive range of motion and skin temperature. Doing so is critical to ensuring that the results are accurate, replicable and comparable to those obtained by other examiners who use the same AMA Guides-directed methods.
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24. In reviewing Claimant’s medical records, Dr. Bucksbaum acknowledged that Claimant did not present with every sign or symptom of CRPS at every medical appointment with every medical professional. CRPS is not a static condition; its presentation can change over the course even of a few hours. I find this testimony very persuasive. Indeed, by their focus on categories of signs and symptoms the Harden diagnostic criteria seem to reflect just such variation.
25. As for the efficacy of a spinal cord stimulator, Dr. Bucksbaum stated, to a reasonable degree of medical certainty, that a stimulator trial constitutes reasonable and necessary treatment for Claimant’s current condition. Claimant is managing her pain without narcotic pain medications, but her response to conservative measures continues to wane. Spinal cord stimulators are safe products, and have been approved and regulated by the Federal Drug Administration for more than twenty years. They are widely recognized as an appropriate treatment for CRPS, Type II.
(e) Dr. Ensalada
26. Dr. Ensalada is board certified in both anesthesiology and pain management. He does not currently maintain a private clinical practice, having been engaged in military service off and on since 2003. In that context, he routinely treats military personnel. Dr. Ensalada has implanted spinal cord stimulators, and also has treated patients who suffer from CRPS.
27. At Defendant’s request, Claimant underwent an independent medical examination with Dr. Ensalada in October 2010. Dr. Ensalada personally examined Claimant (a procedure that was videotaped) and also reviewed her pertinent medical records.
28. Dr. Ensalada concluded, to a reasonable degree of medical certainty, that Claimant did not meet the Harden criteria for diagnosing CRPS. Among his examination findings:
• Claimant exhibited inconsistent range of motion during her physical examination as compared with her interview; and
• She exhibited no signs of edema, sweating changes, mottled skin or skin color asymmetry, or temperature asymmetry.
29. Dr. Ensalada disputed the basis for Dr. Lake’s CRPS diagnosis, as in his opinion her findings were inconsistent. Contrary to Dr. Bucksbaum’s testimony, according to Dr. Ensalada, the signs and symptoms of CRPS do not change from day to day unless the patient is improving. Given that the Harden diagnostic criteria seem to account for just such changes, I find this testimony difficult to reconcile.
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30. I find other aspects of Dr. Ensalada’s opinion, and the physical examination upon which it was based, troublesome as well. For example:
• Because he was wearing non-latex gloves during his physical exam, Dr. Ensalada was unable to feel whether Claimant’s skin was wet or sweaty. The exam video documents that he noted having “eyeballed” Claimant’s skin and finding no perspiration. Claimant immediately corrected him, however, noting that the skin between the fingers on her right hand was “like . . . the sweaty kid nobody wants to touch.” I find Claimant’s observation in this regard entirely believable.
• Dr. Ensalada did not use a thermometer to measure and compare Claimant’s right and left hand temperatures. Instead, he used his right (gloved) hand to measure Claimant’s left hand temperature, and his left (gloved) hand to measure her right hand temperature. Using this technique, I question whether he would have been able accurately to discern a small but significant temperature asymmetry between Claimant’s two hands.
31. Dr. Bucksbaum commented on these deficiencies in Dr. Ensalada’s methodology in his testimony. Given that temperature asymmetry is an important indicator of CRPS, ensuring accurate measurements is critical. This should be done not with gloved hands, but with calibrated tools, such as a self-calibrating infrared thermometer and spring-loaded medical tape. “Eyeballing” is not a technique condoned by the AMA Guides. I find this critique very persuasive.
32. As for whether a spinal cord stimulator is a reasonable and necessary treatment for Claimant’s current condition, in Dr. Ensalada’s opinion it is not. He testified that there are not yet any studies using randomized, controlled, double-blinded trials with adequate follow-up to establish that the device is a safe and effective treatment for either CRPS or neuropathic pain. On those grounds, he asserted that the treatment is neither reasonable nor necessary. I find this testimony to be less convincing than that provided by Dr. Bucksbaum.
Expert Psychological Opinions
33. As noted above, Finding of Fact No. 12 supra, any candidate for a spinal cord stimulator trial first must undergo a psychological evaluation. The parties each presented expert opinions on the question whether Claimant is an appropriate candidate for a spinal cord stimulator from a psychological perspective.
(a) Cheryl Laskowski, APRN
34. Claimant underwent a psychological evaluation with Ms. Laskowski, an advanced practice registered nurse, in June 2010. In her assessment Claimant now suffers from a pain disorder associated with both psychological factors and a general medical condition. To a reasonable degree of medical certainty, in Ms. Laskowski’s opinion Claimant is an appropriate candidate for a spinal cord stimulator trial.
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35. In the course of her evaluation, Ms. Laskowski documented various difficulties during Claimant’s teen years, including having been the victim of a violent sexual assault and also having abused cocaine and alcohol for a time. According to Ms. Laskowski, however, these prior stressors do not in any way impair Claimant’s suitability as a spinal cord stimulator candidate. She understands that the device will not provide guaranteed relief from her pain and has an adequate support network in place to assist her should problems develop. Based on Claimant’s own testimony at formal hearing, I find this to be a credible assessment.
(b) Dr. Erickson
36. Dr. Erickson is board certified in psychiatry and psychosomatic medicine. He is affiliated with the same pain management center at which Dr. Lake practices. Dr. Erickson interviewed Claimant and also reviewed various medical records.
37. To a reasonable degree of medical certainty, Dr. Erickson concluded that Claimant is an appropriate candidate for a spinal cord stimulator. I find his reasons for so concluding persuasive. Specifically:
• Claimant has undergone numerous conservative therapies, but continues to suffer symptoms that significantly impact her life;
• She understands what a spinal cord stimulator can and cannot do in terms of managing her symptoms;
• She has realistic expectations, in that she is not seeking a miracle but rather simply sufficient improvement to allow her a greater degree of function; and
• She does not suffer from any gross psychological impairment that would negatively affect her response to a spinal cord stimulator trial.
(c) Dr. Drukteinis
38. Dr. Drukteinis is board certified in both psychiatry and neurology, and is a diplomat of the American Academy of Pain Management. He performed an independent psychological evaluation of Claimant at Defendant’s request. This included both an interview and psychological testing. Dr. Drukteinis also reviewed Claimant’s pertinent medical records.
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39. As Ms. Laskowski had, Dr. Drukteinis diagnosed Claimant with a pain disorder associated with both psychological factors and a general medical condition. Also as Ms. Laskowski had, he noted that Claimant “came from a very difficult background,” one that included sexual abuse, a messy divorce from a failed marriage and long-standing psychological stress. Unlike Ms. Laskowski, however, Dr. Drukteinis concluded that this history negatively impacted Claimant’s suitability as a spinal cord stimulator candidate. In his analysis, in order to avoid focusing on her longstanding psychological issues, Claimant instead has become overly focused on finding an external medical solution for her current condition. Viewed in this context, for her to pursue yet another medical treatment course is neither reasonable nor necessary, and could in fact be counterproductive. I do not find this reasoning to be persuasive.
Claimant’s Current Symptoms
40. Claimant credibly testified at the formal hearing as to her current right upper extremity symptoms. These include:
• Pain flairs, or “zingers”;
• Swelling, discoloration and skin mottling that comes and goes;
• Excessive sweating;
• Reduced range of motion and weakness; and
• Constant pain.
41. When asked about her understanding of a spinal cord stimulator as a proposed treatment for these symptoms, Claimant demonstrated that her expectations are both reasonable and realistic. She understands that if the trial stimulator fails to provide effective pain relief, there will be no permanent implantation. She does not expect that the device will eliminate her pain entirely, but hopes that it will offer enough relief so that she can get more restorative sleep and reduce her reliance on medications. If the stimulator allows her to regain some of the quality of life she has lost, then she believes the treatment will have been a success.
CONCLUSIONS OF LAW:
1. The key issue in this case is whether or not a spinal cord stimulator trial constitutes reasonable and necessary treatment for Claimant’s chronic pain. Claimant argues that it is an appropriate treatment option either for CRPS, the condition that her treating physicians and medical experts have diagnosed, or for the alternative, more generalized diagnosis of chronic neuropathic pain. In contrast, Defendant argues that Claimant does not meet the diagnostic criteria for CRPS, that a spinal cord stimulator is neither safe nor effective, and that she is not an appropriate psychological candidate for the device.
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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). 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. P.M. v Bennington Convalescent Center, Opinion No. 55-07WC (January 2, 2007).
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. As to the question whether Claimant in fact suffers from CRPS, I conclude here that Dr. Bucksbaum’s opinion is the most credible. His observations were consistent with those previously noted by Dr. Lake and Ms. Noble, who as treating providers were best positioned to evaluate Claimant’s condition over the course of numerous visits. Notably, furthermore, Dr. Bucksbaum used calibrated instruments and AMA Guides-mandated measurement techniques as a basis for his clinical findings, thus enhancing their accuracy. His evaluation was thorough, and his CRPS diagnosis objectively supported.
5. In contrast, because of the noted deficiencies in Dr. Ensalada’s technique I have far less confidence in his clinical findings, and consequently in his conclusion as well. Having acknowledged how important it is to use accurate measurements when applying the diagnostic algorithm for CRPS, Dr. Ensalada’s failure to do so in the course of his own evaluation is too troublesome for me to overlook.
6. As for whether a spinal cord stimulator trial is a reasonable and necessary treatment for Claimant’s condition, I conclude from the more credible medical evidence that it is. I accept as true, first of all, Dr. Bucksbaum’s assertion that the device is safe, and also that the FDA has long approved its use for treating conditions such as Claimant’s. And while it may be true, as Dr. Ensalada testified, that additional scientific study may further hone our understanding of the device’s efficacy, I do not conclude that this automatically disqualifies Claimant from undergoing a trial implantation now.
7. I further conclude that Claimant is an appropriate psychological candidate for a spinal cord stimulator trial. With due regard for Claimant’s own testimony, I find Dr. Erickson’s opinion more credible than Dr. Drukteinis’. From this evidence I conclude that Claimant is appropriately, not overly, focused on availing herself of a treatment that reasonably might reduce her pain and increase her function.
8. In sum, I conclude that as a consequence of her December 17, 2007 compensable work injury Claimant now suffers from CRPS, Type II. I further conclude that a spinal cord
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stimulator trial represents a reasonable and necessary treatment for her current condition.4
9. As Claimant has prevailed on her claim for benefits, she is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit her itemized claim.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Medical benefits covering all medical services and supplies causally related to a spinal cord stimulator trial and, if successful, permanent implantation of the device, in accordance with 21 V.S.A. §640; and
2. Costs and attorney fees in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 11th day of January 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 Having concluded that Claimant is properly diagnosed with CRPS, it is not necessary for me to reach her alternative argument, which is that a spinal cord stimulator trial is an equally appropriate treatment for the more generalized diagnosis of chronic neuropathic pain. From the evidence presented, I conclude that it is.

Tammy Randall v. Health Services Group (March 12, 2013)

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Tammy Randall v. Health Services Group (March 12, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Tammy Randall Opinion No. 09-13WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Health Services Group
For: Anne M. Noonan
Commissioner
State File No. AA-59997
OPINION AND ORDER
Hearing held in Montpelier, Vermont on October 15, 2012
Record closed on December 24, 2012
APPEARANCES:
Mark McQuerry, Esq., for Claimant
David Berman, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant’s cervical spine condition causally related to her February 9, 2009 compensable work injury?
2. If so, does Dr. Robbins’ proposed cervical surgery constitute reasonable medical treatment under 21 V.S.A. §640(a)?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Curriculum vitae, Dr. Robbins
Defendant’s Exhibit A: Curriculum vitae, Dr. Kirkpatrick
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640(a)
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 contained in the Department’s file relating to this claim.
3. Claimant worked for Defendant as a cook and kitchen aide.
Claimant’s Prior Medical History
4. In October 2007 Claimant sustained an injury at work, when two trays of food fell off a delivery cart while she was bending over and hit her in the back of her head. Claimant treated for this injury at the Southwestern Vermont Medical Center emergency room, where she was noted to have matted food in her hair, tenderness in the back of her head and temporarily blurred vision. She did not lose consciousness, and her symptoms resolved quickly.
Claimant’s Work Injury and Course of Treatment
5. Claimant credibly described that while working her normal shift on February 5, 2009 she had occasion to retrieve a box of bagels from Defendant’s walk-in freezer. The bagels were on a shelf that was shoulder high, and she did not realize that two five-gallon tubs of ice cream were resting on the back of the box. As she pulled the box off the shelf, one of the ice cream tubs fell forward towards her. To avoid being hit in the face, Claimant jerked her head back and away. As she did so, she heard a pop in her shoulder and immediately felt burning pain from her left neck into her shoulder and down her left arm.
6. On February 9, 2009 Claimant presented to her primary care physician, Dr. Carroll, with what she described as steadily increasing left shoulder pain that had begun four days ago. At the time, Claimant did not report having suffered a specific injury as a result of the February 5th incident. Dr. Carroll prescribed oral steroids and determined that she was unable to work. Claimant has not returned to work since.
7. At her next two visits to Dr. Carroll, Claimant reported that her symptoms included tingling up to her neck and around the back of her shoulder. In early March 2009 she described tenderness when her left trapezius was palpated. The trapezius is the main stabilizing muscle that attaches to the base of the skull and runs all the way to the shoulders and down the middle of the back. I find that when Claimant reported tenderness in that area, she thus was implicating both her shoulder and her neck.
8. Claimant’s symptoms failed to improve with conservative treatment, and in fact worsened with physical therapy. In March 2009 she was referred to Dr. Nofziger, an orthopedic surgeon and shoulder specialist, for further evaluation.
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9. At her first visit with Dr. Nofziger, Claimant described her pain as being all around her left shoulder blade, around the shoulder and down her arm. An MRI study showed no evidence of a frank rotator cuff tear, but did reveal a labral tear. Dr. Nofziger prescribed conservative treatment, but still Claimant failed to improve.
10. Fearing a cervical or brachial nerve component to Claimant’s pain, in July 2009 Dr. Nofziger recommended that she undergo electrodiagnostic testing. This she did, in August 2009. Both EMG and nerve conduction tests were negative.
11. Conservative therapies having proved ineffective at resolving her pain, in November 2009 Claimant underwent surgery, during which Dr. Nofziger repaired her labral tear and compressed her shoulder.
12. Claimant’s condition did not improve with surgery, and her symptoms persisted throughout 2010. In January 2011, she underwent a second shoulder surgery. Thereafter, the pain in her shoulder joint improved, but the pain she described over her shoulder blade and in her neck continued. I find that by these descriptions Claimant likely was referring to the same symptoms of which she had complained since shortly after her February 2009 work injury.
13. In June 2011 Dr. Nofziger recommended that Claimant undergo a cervical spine MRI to ascertain whether there might be a cervical component to her pain. Although this was the first treatment recommendation specifically targeting her neck, I find that the symptoms that prompted Dr. Nofziger’s suggestion had been ongoing since Claimant’s February 2009 work injury. The MRI revealed a congenital fusion at the C4-5 disc level, with significant disc space narrowing and a rather large bone spur at C5-6. Thereafter, Dr. Nofziger referred Claimant to Dr. Robbins, a spine specialist, for further evaluation.
14. In February 2012 Claimant first saw Dr. Robbins. She described neck pain that radiated into her left shoulder, and when Dr. Robbins examined her she was tender to touch both over the left trapezius and at C5-6. A Spurling’s test, which is used to diagnose cervical nerve root compression, was positive at the C5 level. There were negative impingement signs in the left shoulder, however, indicating that this likely was not the source of her ongoing pain.
15. At a second office visit with Dr. Robbins in April 2012, Claimant exhibited identical symptoms. As treatment, Dr. Robbins has recommended surgery to decompress the C5 nerve root, excise the existing C5-6 bone spur and fuse the discs at that level.
16. Supported by its own medical expert, Dr. Kirkpatrick, in March 2012 Defendant sought to terminate both temporary total disability and medical benefits (including coverage for Dr. Robbins’ proposed surgery), on the grounds that Claimant’s cervical condition was not causally related to her work injury. The Department approved the discontinuance effective March 15, 2012.
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Expert Medical Opinions
(a) Dr. Robbins
17. Dr. Robbins is a board certified orthopedic surgeon, specializing in the spine. As noted above, he saw Claimant on two occasions. He also reviewed her medical records.
18. In Dr. Robbins’ opinion, as a result of the February 2009 incident at work Claimant likely suffered an injury to her cervical spine, which resulted in the C5 nerve root compression now apparent on MRI. He based this opinion on the following:
• The mechanism of Claimant’s injury – jerking her head back and away to avoid being hit in the face by the falling tub of ice cream – was consistent with an extension and rotation injury at the C5 level;
• As is documented in virtually every physician’s office note after the February 2009 incident, Claimant consistently complained of trapezial pain, that is, pain both between the shoulder blades and in the neck. The trapezius is the main referral point for neck pain, and therefore this is exactly where a compression-type injury to the C5 nerve root would manifest itself; and
• Claimant’s positive Spurling’s test on examination constituted objective evidence of C5 nerve root compression.
19. I find Dr. Robbins’ analysis as to the causal relationship between Claimant’s February 2009 work injury and the compression of her C5 nerve root to be very persuasive. I also find persuasive Dr. Robbins’ conclusion that neither Claimant’s pre-existing C5 bone spur nor her congenital C4-5 fusion are likely causes of her ongoing trapezial and neck pain. These conditions were completely asymptomatic prior to February 2009.
20. I acknowledge that at one point in his testimony Dr. Robbins mistakenly confused the details of Claimant’s October 2007 work-related injury, Finding of Fact No. 4 supra, in which falling meal trays hit her in the head and caused her hair to become matted with food, with those of the February 2009 incident at issue here. His erroneous reference to these records does indicate some inattention to detail. However, Dr. Robbins’ grasp of Claimant’s medical records from February 2009 forward evinces a clear understanding of both the mechanism of her injury and the symptoms she consistently reported thereafter. Thus, taken in context I find his mistake inconsequential.
21. With regard to his proposed treatment, Dr. Robbins believes that surgical decompression, excision and fusion at the C5-6 level will likely relieve Claimant’s neck pain. In his opinion, initially Claimant’s shoulder injury was both more obvious in its presentation and more significant; as a result, for many years her neck injury was “running along as a step-child.” Now that Dr. Nofziger’s surgeries have alleviated at least some of the pain in Claimant’s shoulder joint, the pain that remains is likely cervical in origin and should respond to surgical treatment. I find this reasoning persuasive.
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(b) Dr. Kirkpatrick
22. Dr. Kirkpatrick is a board certified orthopedic surgeon. At Defendant’s request he conducted two independent medical examinations of Claimant, one in August 2011 and the other in May 2012. Dr. Kirkpatrick also reviewed Claimant’s pertinent medical records prior to his testimony.
23. Dr. Kirkpatrick diagnosed Claimant with shoulder impingement syndrome causally related to her February 2009 work injury. In his opinion, her cervical symptoms are not causally related to that injury, for the following reasons:
• The medical records contemporaneous to Claimant’s February 2009 injury do not report any complaints, signs or symptoms of neck pain; and
• Claimant’s mechanism of injury does not support a finding of neck trauma.
24. Rather than her work injury being the catalyst for Claimant’s neck symptoms, in Dr. Kirkpatrick’s opinion it is more likely that her congenital C4-5 fusion and C5-6 bone spur, both of which pre-existed her work injury, caused stress to her C5 nerve root and resulted in the symptoms that Dr. Nofziger first addressed in June 2011. Thus, Dr. Kirkpatrick believes that Claimant’s current course of treatment, as well as Dr. Robbins’ proposed surgery, have been necessitated by her pre-existing conditions, not by her February 2009 work injury.
25. I do not find Dr. Kirkpatrick’s opinion persuasive. Claimant’s medical records from February 2009 forward are replete with entries in which Claimant complained of pain between her shoulder blades and was noted on examination to be tender to palpation in her left trapezius. As noted above, Finding of Fact No. 18 supra, the trapezius muscle is a referral point for neck pain, and therefore these references do in fact encompass the C5 nerve root symptoms later documented on MRI.
26. Dr. Kirkpatrick did agree that the motion involved in forcefully jerking one’s neck potentially can cause a cervical injury. He further agreed that after Claimant’s first shoulder surgery her left shoulder was no longer a pain generator.
27. In Dr. Kirkpatrick’s opinion, Dr. Robbins’ proposed cervical surgery is not reasonable, both because it is not causally related to her work injury and because it is not likely to be successful. In his analysis, Claimant already has undergone two shoulder surgeries, both of which he would characterize as failures. A third surgery to address her neck condition is likely to be unsuccessful as well. In fact, however, Claimant’s neck pain has only recently become the focus of any specifically directed treatment, separate and apart from treatment targeted at her shoulder joint. That being the case, Dr. Kirkpatrick has not explained adequately how it is that the benefit Claimant derived (or not) from her shoulder surgeries is likely to be an accurate predictor of whether she will (or will not) benefit from cervical surgery. For that reason, I find his opinion less persuasive than Dr. Robbins’.
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(c) Dr. Nofziger
28. Dr. Nofziger is a board certified orthopedic surgeon specializing in the shoulder. In April 2012, at the request of Defendant’s attorney, he wrote a letter in which he stated to a reasonable degree of medical certainty that Claimant’s neck problems were worsened or exacerbated by her shoulder injury. Dr. Nofziger did not detail the reasons for his opinion or the factual evidence supporting it. Therefore, I do not find his opinion persuasive on the causal relationship issue.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The first issue presented here is whether Claimant’s cervical spine condition is causally related to her February 2009 work injury. Claimant asserts that it is, as the injury she suffered encompassed both her shoulder and her neck. Defendant argues to the contrary. It asserts that Claimant’s cervical symptoms are the result of her congenital fusion at C4-5 and her pre-existing bone spur, both chronic, pre-existing conditions.
3. The parties presented conflicting expert medical evidence as to this issue. 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. Based primarily on the third factor, I conclude that Dr. Robbins’ opinion is the most persuasive. His analysis of the mechanism of Claimant’s injury as consistent with a resulting C5 nerve root compression was convincing. In addition, his conclusion that Claimant’s complaints of pain in and around her shoulder blade and trapezius muscle likely encompassed cervical pain was credible as well.
5. I conclude that Claimant has sustained her burden of proving that her current neck symptoms and cervical condition are causally related to her February 2009 work injury.
6. The second issue is whether Dr. Robbins’ proposed cervical surgery constitutes reasonable medical treatment. I conclude that it is.
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7. Vermont’s workers’ compensation statute, 21 V.S.A. §640(a), obligates an employer to pay only for “reasonable” medical treatments. 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). Having already concluded that Claimant’s cervical condition is causally related to her compensable injury, the only remaining question is whether the proposed surgery is medically necessary and appropriate.
8. Again, I conclude that Dr. Robbins’ opinion on this issue is more persuasive than Dr. Kirkpatrick’s. Dr. Robbins aptly recognized the extent to which Claimant’s neck injury was largely ignored for more than two years, while the primary treatment focus remained on her left shoulder. As a result, Claimant has only recently had the benefit of treatment directed more specifically at her neck. Conservative therapies having failed, cervical spine surgery is now an appropriate option.
9. In summary, I conclude that Claimant has sustained her burden of proving that her current cervical condition is causally related to her accepted February 2009 work injury. I further conclude that she has not yet reached an end medical result, and that Dr. Robbins’ proposed surgery constitutes reasonable treatment.
10. As Claimant has prevailed on her claim for benefits, she is entitled to an award of costs and attorney fees in accordance with 21 V.S.A. §678(e). Claimant has submitted a request for expenses totaling $2,857.58 and attorney fees totaling $6,187.50. Defendant has not filed specific objections to any of the requested costs or fees. An award of costs to a prevailing claimant is mandatory under 21 V.S.A. §678(a), and therefore these 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. Temporary total disability benefits retroactive to March 15, 2012 in accordance with 21 V.S.A. §642, with interest as calculated pursuant to 21 V.S.A. §664;
2. Medical benefits covering all reasonable medical services and supplies causally related to treatment of Claimant’s cervical spine condition, in accordance with 21 V.S.A. §640; and
3. Costs totaling $2,857.58 and attorney fees totaling $6,187.50, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 12th day of March 2013.
____________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Cynthia Galbicsek v. Experian Information Solutions (December 22, 2009)

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Cynthia Galbicsek v. Experian Information Solutions (December 22, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Cynthia Galbicsek Opinion No. 51-09WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Experian Information Solutions
For: Patricia Moulton Powden
Commissioner
State File No. S-07728
OPINION AND ORDER
Hearing held in Montpelier, Vermont on May 27, 2009
Record closed on August 17, 2009
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant’s continued use of narcotic pain medications reasonable and necessary treatment for her compensable low back injury?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Various treatment algorithms, news releases and guidelines for use of opioid medications as treatment for chronic pain
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. The relevant facts relating to Claimant original work injury are detailed in the Commissioner’s prior opinion, Galbicsek v. Experian Information Solutions, Opinion No. 30-04WC (September 4, 2004), and will be recited only briefly here. Claimant suffered a low back injury in the course and scope of her employment for Defendant on September 23, 1999. She began treating with Dr. Bucksbaum in February 2000. Conservative treatments failed to alleviate her pain, which was determined to be mechanical in nature and not amenable to surgical correction. Ultimately Dr. Bucksbaum prescribed a regimen of narcotic medications to treat Claimant’s chronic pain. Defendant objected to this course of treatment as neither reasonable nor necessary, and the claim proceeded to formal hearing on that issue.
4. After considering the expert medical testimony from both Dr. Bucksbaum, the treating physician, and from Dr. Ensalada, Defendant’s independent medical evaluator, the Commissioner ruled that Dr. Bucksbaum’s treatment plan was reasonable, necessary and therefore compensable. In making this determination, however, the Commissioner noted the inherent danger of sanctioning indefinitely a chronic pain patient’s use of narcotics for pain relief. To provide some mechanism for re-evaluating the efficacy of Dr. Bucksbaum’s treatment plan, therefore, the Commissioner mandated that the issue be considered anew in two years’ time. Defendant now seeks that review.
5. Not much has changed in the intervening years. Dr. Bucksbaum continues as Claimant’s treating physician, and as before, remains committed to a narcotic medication regimen as the most effective way to control Claimant’s chronic pain and maintain her function. He continues to monitor Claimant’s medication use closely, with monthly office visits, regular toxicology screening and strict prescription control.
6. Dr. Bucksbaum acknowledges that Claimant is drug dependent, but denies that she is drug addicted. Drug dependency is a normal phenomenon, in which a patient – a person who suffers from diabetes, for example – requires drugs – in the case of the diabetic, insulin – in order to avoid a deficient medical state. In contrast, drug addiction is an abnormal condition in which a patient seeks drugs, usually in increasing dosages, in order to obtain some secondary gain.
7. Dr. Bucksbaum’s qualifications are well suited to treating patients, like Claimant, who suffer from chronic pain. He is board certified in physical medicine, rehabilitation and pain management, and has trained in both narcotic and non-narcotic methods of pain control. He also practices addiction medicine and in that context is familiar with the signs of illicit drug use. In Claimant’s case, Dr. Bucksbaum has observed only one instance of inappropriate diversionary or addictive behavior, involving marijuana use in violation of her narcotics contract. That episode occurred many years ago and in his opinion is no longer clinically significant.
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8. Dr. Bucksbaum’s treatment approach is consistent with the Vermont Board of Medical Practice’s “Policy for the Use of Controlled Substances for the Treatment of Pain,” adopted in December 2005. The policy was adapted from the model endorsed by the Federation of State Medical Boards of the United States. It acknowledges that the medical management of pain can include, in appropriate circumstances, prescribing narcotic medications for patients with clearly documented unrelieved chronic pain. The goal of any such treatment should be “to control the patient’s pain while effectively addressing other aspects of the patient’s functioning, including physical, psychological, social and work-related factors.” The policy recognizes, furthermore, that “tolerance and physical dependence are normal consequences of sustained use of opioid analgesics and are not the same as addiction.”
9. The Medical Practice Board’s policy endorses the continued use of narcotic medications for pain management therapy provided that the treating physician’s evaluation of the patient’s progress towards treatment goals remains satisfactory. “Satisfactory response to treatment may be indicated by the patient’s decreased pain, increased level of function, or improved quality of life.”
10. According to Dr. Bucksbaum, over the course of many examinations Claimant has demonstrated both positive physical findings and an unsatisfactory response to alternative treatments, enough to justify a narcotic medication regimen as the best option for treating her chronic pain. Treatment with narcotics has increased Claimant’s tolerance for both work and daily living activities, and thereby has alleviated her depression as well. Though not a perfect solution, in Dr. Bucksbaum’s opinion narcotic medications have given Claimant a level of pain control that is significantly better than what he would expect from any other treatment option. This has made a “major difference” to her. Dr. Bucksbaum anticipates that Claimant most likely will require narcotic pain control medications for the rest of her life.
11. Testifying on Defendant’s behalf, Dr. Ensalada strongly disputed the appropriateness of Dr. Bucksbaum’s treatment plan, for essentially the same reasons that he propounded at the earlier formal hearing in this claim. Dr. Ensalada is board certified in both pain medicine and anesthesiology. Although his current practice is largely forensic, in the past he devoted a significant portion of his time to treating pain patients.
12. According to Dr. Ensalada, Claimant’s original injury was a minor low back strain/sprain resulting in non-specific low back pain. Since then, neither objective physical findings nor diagnostic studies have revealed any verifiable basis for her chronic pain. Dr. Ensalada emphasized that Claimant is not malingering or magnifying her symptoms in any way. In his opinion, however, without objective signs of underlying pathology Claimant’s subjectively reported symptoms alone are insufficient to justify treating her with narcotic medications. For that reason, Dr. Ensalada believes that Dr. Bucksbaum’s treatment has always been, and continues to be, neither reasonable nor necessary.
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CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Once a claim has been accepted and benefits have been paid, the party seeking to discontinue bears the burden of proving that it is proper to do so. Merrill v. University of Vermont, 133 Vt. 101, 105 (1974). As to the reasonable necessity of medical treatment, however, Claimant bears the burden of proof. MacAskill v. Kelly Services, Opinion No. 04-09WC (January 30, 2009).
3. At issue here is whether Claimant’s continued ongoing use of narcotic medications for chronic pain control constitutes reasonable and necessary treatment. Dr. Bucksbaum, her treating physician, feels strongly that it is. Dr. Ensalada, Defendant’s medical expert, feels strongly that it is not.
4. 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).
5. Notwithstanding the passage of more than five years’ time, the medical expert testimony offered in the current claim is in most respects identical to that offered at the prior formal hearing. There, the Commissioner determined that Dr. Bucksbaum’s opinion was the most credible. Since that time, Dr. Bucksbaum’s opinion has been buttressed by the Vermont Medical Practice Board’s publication of a policy that endorses the ongoing use of narcotic medications, in appropriate circumstances, as an effective treatment for chronic pain.
6. I conclude that Dr. Bucksbaum’s treatment fits in all respects within the parameters of the Practice Board’s policy. It also meets the definition of “palliative care” as stated in Workers’ Compensation Rule 2.1310: “[M]edical services rendered to reduce or moderate temporarily the intensity of an otherwise stable medical condition, but [not including] medical services rendered to diagnose, heal or permanently alleviate or eliminate a medical condition.”
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7. I also conclude that by virtue of his training and experience Dr. Bucksbaum is well qualified to administer a narcotic pain control program on Claimant’s behalf. He has demonstrated his ability to impose strict controls on Claimant’s drug use and to monitor both her compliance with, and her response to, his treatment regimen. Although not in itself a determinative factor, furthermore, Dr. Bucksbaum is entitled to due deference as Claimant’s treating physician for more than nine years, managing a chronic pain condition for which only imperfect solutions exist.
8. In contrast, I am hard-pressed to accept Dr. Ensalada’s analysis. It was insufficient to carry the day at the 2004 formal hearing, and it has not changed appreciably since.
9. I conclude that Dr. Bucksbaum’s opinion is the most credible one here. With that opinion as support, Claimant has sustained her burden of proving that Dr. Bucksbaum’s current treatment plan, which includes prescribing narcotic medications to manage her chronic pain, continues to be both reasonable and necessary treatment for her September 23, 1999 work injury. Although Claimant’s circumstances may change in the future, either because her condition changes, or she becomes non-compliant, or medical science offers new treatment alternatives, at present Defendant remains responsible for what Dr. Bucksbaum has established to be the best option available to her.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Medical benefits covering all reasonable and necessary medical services and supplies causally related to Claimant’s September 23, 1999 work injury, including coverage for narcotic pain medications; and
2. Costs and attorney fees, in amounts to be determined pursuant to 21 V.S.A. §678(e).
DATED at Montpelier, Vermont this 22nd day of December 2009.
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Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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