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D. D. v. Northeast Kingdom Human Services

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D. D. v. Northeast Kingdom Human Services
STATE OF VERMONT
DEPARTMENT OF LABOR
D. D. Opinion No. 47-06WC
By: Margaret A. Mangan
v. Hearing Officer
Northeast Kingdom Human Services For: Patricia Moulton Powden
Commissioner
State File No. U- 01564
Hearing held on March August 16, 2006
Record closed on September 1, 2006
APPEARANCES:
Steven P. Robinson, Esq. for the claimant
John W. Valente, Esq. for the defendant
ISSUES:
1. Did the Claimant reach medical end result on July 25, 2005?
2. Is the functional restoration program reasonable and necessary medical treatment as a result of the work related injury from May 1, 2003?
3. Attorneys’ Fees
EXHIBITS:
Joint I: Medical Records
OTHER EXHIBITS:
Defendant’s sealed envelope pertaining to attorney fee award.
FINDINGS OF FACT:
1. Before her work related injury, the Claimant worked in the healthcare field for approximately twenty years.
2. In the mid-1990’s the Claimant sustained a work related injury to her back. After completing a three-week functional restoration program, the Claimant was able to return to full time employment.
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3. By May 2003, the Claimant had been employed by Defendant Northeast Kingdom Human Services as a service provider and home care attendant for over three years.
4. On May 1, 2003, the Claimant suffered work related injuries to her back and right knee when she slipped down an entire flight of stairs.
5. On May 6, 2003, the Claimant consulted her primary care giver, Nurse Practitioner Susan Taney, at Concord Health Center. Ms. Taney referred the Claimant to physical therapy for her back injury. Dr. Berrian is also a health care provider Concord Health Center.
6. By May 20, 2003, the Claimant began taking Percocet to treat her continued knee and low back pain.
7. By July 30, 2003, the Claimant was diagnosed with situational depression as a result of the chronic back pain and limitations related to her work injury. To treat these symptoms, the Claimant was prescribed an antidepressant in addition to the Percocet.
8. While helpful for a time, the Claimant reached a plateau in physical therapy by October 2003. As a result, Ms. Taney referred the Claimant to Dr. Cody at the Spine Institute.
9. In May 2004, the Claimant began taking MS Contin in addition to the Percocet and antidepressants.
10. In June 2004, after injection therapy, water therapy, and a medial branch block failed to provide significant relief, Dr. Cody recommended that the Claimant would be the “perfect candidate” for a functional restoration program.
11. On July 12, 2004, the Claimant began a functional restoration program at the Work Enhancement Rehabilitation Center. After three days, the Claimant left the program because of a family emergency. As a result, the Claimant’s program was “put on hold” until July 26, 2004.
12. The Claimant was unable to return to the functional restoration program on July 26, 2004 because she underwent care for symptoms unrelated to her work injury.
13. On January 10, 2005, the Department notified the parties that the Defendant’s Form 27 to discontinue temporary total disability payments was approved because the Claimant was unable to treat the work related low back injury.
14. In February 2005, the Claimant attended physical therapy, but saw no real improvement in her low back condition.
15. In March 2005, the Claimant’s unrelated medical condition was successfully treated and the Claimant received medical release to resume the functional rehabilitation program.
16. In May 2005, the Claimant was still experiencing chronic low back pain and depression as a result of her work injury. At this time, the Claimant’s medications included MS
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Contin, Percocet and an antidepressant. The Claimant was also using a TENS unit to manage her pain.
17. On May 27, 2005, Dr. Gennaro performed an independent medical evaluation at the Defendant’s request. He determined that the Claimant’s primary barriers to recovery are obesity and physical deconditioning. Dr. Gennaro also noted the Claimant’s probable depression and narcotic addiction.
18. Dr Gennaro determined that the Claimant had reached an end medical result with a 5% whole person impairment because of non-verifiable radicular complaints and nonuniform loss of range of motion. Dr. Gennaro also determined that the Claimant had a sedentary to light work capacity.
19. While Dr. Gennaro recommended vocational rehabilitation, his June 21, 2005 note indicated that further treatment, such as physical therapy or the Spine Institute’s functional restoration program, would be unlikely to change her circumstances.
20. As a result of Dr. Gennaro’s assessment, the Defendant filed a form 27 to discontinue benefits. This form was approved by the Department on August 8, 2005.
21. In a June 16, 2005 progress note, Ms. Taney strongly disagreed with Dr. Gennaro’s assessment that the Claimant had a significant narcotic addiction and that the injury was not the most relevant factor in her symptoms.
22. On June 27, 2005, a functional capacity exam showed that the Claimant could sustain a light level of work for three hours out of an eight-hour day. The exam also noted that it might be possible for the Claimant to work more than three hours at a sedentary capacity.
23. In July 2005, Ms. Taney released Ms. Drew to work part-time at a light duty capacity.
24. On September 27, 2005, Ms. Taney’s practitioner’s note showed that the Claimant was prevented from starting a new job because of severe swelling in her legs.
25. In October 2005, Ms. Taney referred the Claimant for an MRI after the Claimant rolled over in bed and experienced an increase in the pain stemming from her the work injury. At this time, Ms. Taney continued to recommend that the Claimant resume the functional restoration program.
26. In a May 2006 letter to Claimant’s counsel, Dr. Berrian states that the June 27, 2005 FCE is consistent with her diagnosis of the Claimant. Dr. Berrian further notes that Ms. Drew is likely to remain disabled from her work injury until she receives the recommended physical therapy and behavioral care.
27. Although the Claimant is obese, she worked full time in the healthcare field at her current weight and has not gained additional weight since her work injury.
28. Dr. Berrian and Ms. Taney continue to assert that a functional restoration program
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would improve the Claimant’s chances for returning to work.
29. The Claimant is requesting attorney fees and costs. The Claimant’s itemized statement of professional services rendered lists 68.1 attorney hours at $90.00 per hour, and 3.4 paralegal hours at $60.00 per hour totaling $6, 333.00 in attorney fees. The Claimant also lists $447.68 in litigation costs.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963). The claimant must establish by sufficient credible evidence the character and extent of the injury and disability as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984).
2. There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the inference form the facts proved must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
3. The Claimant has successfully shown that she has not yet reached a medical end result and that a functional restoration program is a reasonable and necessary treatment for her May 1, 2003 work injury.
Medical End Result
4. A medical end is reached when there is a substantial plateau in the medical recovery process, such that significant further improvement is not expected, regardless of treatment. WC 2.1200. “Once the recovery process has ended, or the worker has achieved the maximum possible restoration of his earning power, he is no longer entitled to temporary disability benefit.” Sawyer v. Mt. Snow, Ltd., Opinion No. 22-97 WC (1997) (quoting Bishop v. Town of Barre, 140 Vt. 464, 571 (1982)).
5. The Defendant’s expert, Dr. Gennaro, ultimately found that the Claimant had reached a medical end and that she could not be helped by further treatment. However, Ms. Taney, Dr. Barrian, and Dr. Cody maintain that the Claimant would likely derive great benefit from a functional restoration program.
6. In a situation where experts disagree, the Department considers the following factors: (1) the nature of treatment and length of time there has been a patient-provider relationship; (2) whether accident, medical and treatment records were made available to and considered by the examining physician; (3) whether the report or evaluation at issue is clear and thorough and included objective support for the opinions expressed; (4) the comprehensiveness of the examination; and (5) the qualifications of the experts, including professional training and experience; Morrow v. Vt. Financial Services Corp., Opinion No. 50-98WC (Aug. 25, 1998); Durand v. Okemo Mountain, Opinion No. 41S-98WC (Jul. 20, 1998).
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7. The Department has traditionally given greater weight to the treating physician’s opinion. Searles v. Price Chopper, Opinion No. 68S-98WC (1998) (citing Mulinski v. C&S Wholesale Grocers, Opinion No. 34-98WC (June 11, 1998)). The Defense argues that the Department should not rely on Nurse Practitioner Taney’s opinion, despite her long-time treatment of the Claimant, asserting a lack of objectivity, education and experience. I disagree. First, while it is true that Ms. Taney is not a physician, her opinion that the Claimant is a strong candidate for a functional restoration program is based on her first-hand knowledge of the Claimant’s condition combined with her training and experience as a healthcare provider. Furthermore, Ms. Taney’s opinion is shared by both Dr. Barrian and Dr. Cody. Second, after sustaining a back injury in the 1990’s, the Claimant was able to successfully return to work after completing a functional restoration program. Finally, the Claimant herself believes that there is a strong likelihood that she will meet her goal of returning to full time employment if given the opportunity to complete the work hardening program. The combination of these factors lends substantial weight to the opinion supported by Ms. Taney.
8. In light of Ms. Taney’s opinion, I believe that Dr. Gennaro’s assessment actually supports the validity of a functional restoration program for the Claimant. If obesity and deconditioning pose the major barriers to recovery, then an extensive functional restoration program that is structured to improve the Claimant’s pain management skills and overall physical condition increases the likelihood that the Claimant’s condition will improve.
9. Therefore, after acknowledging that a “Medical End Result” occurs only at “the point at which a person has reached a substantial plateau in the medical recovery process, such that significant further improvement is not expected, regardless of treatment,” it is evident that this Claimant has not yet reached medical end.
10. Furthermore, the Defendant’s assertion that the Claimant will not benefit from a functional restoration program because of her weight is untenable. “An employer takes each employee as is and is responsible under workers’ compensation for an injury which disables one person and not another.” Stoddard v. Northeast Rebuilders, Opinion No. 28-04WC (2004) (citing Morrill v. Bianchi, 107 Vt. 80 (1935)). Before the work injury, the Claimant was fully capable of performing her job as a full time service provider and healthcare attendant at her current weight. Aside from obesity and deconditioning, the Defendant offers no other physical impediment that might bar the Claimant from benefiting from a work hardening program. As such, a functional restoration program designed to increase the Claimant’s conditioning and help her cope with her low back pain is an entirely reasonable and necessary treatment.
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Attorneys’ fees and costs
11. The Defendant has submitted a sealed envelope containing a settlement offer that was rejected by the Claimant. This envelope is to remain sealed until after the Department has written its decision. If the Claimant’s award is less than the rejected offer, then the Defendant argues that the Department should not award attorneys’ fees and costs to the Claimant.
12. While the Department has allowed a “last best offer” submission in the past, there are several persuasive arguments for why this practice should not continue in this forum. First, when a claimant’s attorney is certain that the client has a right to the benefits requested, that attorney should not feel compelled to urge the client to bargain with his or her right to a certain amount of benefits. Second, a large number of workers’ compensation claimants find themselves in a desperate financial situation as a result of their work-related injuries. This prevalent situation provides a strong impetus to settle for smaller sums than a claimant might be awarded after formal hearing. If allowed to prevail, the above practice might encourage attorneys to urge their clients to take inferior settlements out of fear that attorney fees could be denied after the hearing. Finally, this practice encourages eleventh-hour settlement offers where the claimant’s attorney has already put in the effort and expense of preparing for hearing. If the claimant does not accept this last-minute offer, then there is a danger the attorney will not be compensated for building a successful case.
13. As such, the Department has not considered the rejected settlement offer in this decision.
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ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law, the Claimant has not yet reached a medical end result and is entitled to the following:
1. Medical benefits regarding the Claimant’s back injury and related depression, including the MRI of March 16, 2006;
2. Payment for a comprehensive work restoration program;
3. Past TTD from June 25, 2005 to the present, and ongoing until a medical end is reached;
4. Attorneys’ fees of $6,333.00 and costs of $447.68
Dated at Montpelier, Vermont this 9th day of January 2007.
________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

V. P. v. Heritage Ford (September 28, 2007)

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

V. P. v. Heritage Ford (September 28, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
V. P. Opinion No. 26-07WC
v. Jane Dimotsis, Esq.
Hearing Officer
Heritage Ford
Patricia Moulton Powden
Commissioner
State File No. S-21982
OPINION AND ORDER
Hearing held in Montpelier on May 2, 2007
APPEARANCES:
Richard Goldsborough, Esq. for Claimant
John Valente, Esq. for Defendant
ISSUE PRESENTED:
Whether the fusion surgery proposed by Claimant’s treating physicians constitutes reasonably necessary and causally related treatment for her work-related low back injury.
EXHIBITS:
Joint Exhibits:
Joint Exhibit I: Medical Records
Claimant’s Exhibits:
Exhibit 1: Curriculum Vitae of Michael A. Horgan, M.D.
Defendant’s Exhibits:
Exhibit A: Deposition of Dr. Victor Gennaro taken on June 11, 2007
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CLAIM:
1. Workers’ compensation benefits associated with proposed fusion surgery, including payment of medical bills and both temporary and/or permanent disability benefits, as proven following the procedure.
2. Attorney’s fees and costs under 21 V.S.A. §678.
FINDINGS OF FACT:
1. At all times relevant to this proceeding Claimant was an employee of Defendant, and Defendant was Claimant’s employer, within the meaning of Vermont’s Workers’ Compensation Act.
2. On June 10, 2002 Claimant suffered a work-related injury to her right shoulder and left low back. She was in the process of lifting one end of a truck axle onto a delivery truck when the person holding the other end dropped it. Claimant felt a snap in her shoulder and an immediate, stabbing pain in her low back.
3. Claimant reported her injury to Defendant, which accepted the claim and paid benefits accordingly.
4. Claimant began treating for her injury on June 19, 2002 with Kathleen Campbell, a physician’s assistant, and Tim Fitzgerald, D.O., an osteopath, both at Champlain Valley Urgent Care. Dr. Fitzgerald diagnosed right shoulder and low back strains. Treatment was conservative, consisting of heat, ice, anti-inflammatory medications and restricted work duties.
5. At Dr. Fitzgerald’s referral, Claimant underwent physical therapy, including both pain modalities and stretching and strengthening exercises, from June 28, 2002 through August 26, 2002, a total of 17 sessions.
6. Claimant’s low back pain persisted throughout the summer and fall of 2002.1 Dr. Fitzgerald did not report any radicular pain or parasthesias during this time.
7. In December 2002 Dr. Fitzgerald referred Claimant for a therapeutic steroid injection and further evaluation with Pierre Angier, D.O., and his associates.
8. Evan Musman, D.O., Dr. Angier’s associate, treated Claimant regularly from December 2002 until August 2003, at which point he left the practice and Dr. Angier assumed responsibility for Claimant’s care. Claimant treated regularly with Dr. Angier from August 2003 until December 2005.
1 Claimant’s right shoulder pain also persisted. The course of treatment and ultimate resolution of that injury is not at issue here and therefore will not be discussed.
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9. Dr. Musman’s diagnosis was lumbosacral sprain/strain, possible spondylolisthesis at L5-S1 and possible pars defect at L5. The latter diagnoses were based on Dr. Musman’s review of lumbar spine x-rays taken in January 2003.
10. Dr. Musman’s treatment consisted of osteopathic manipulation, trigger point injections, massage therapy and anti-inflammatories. He also referred Claimant for another course of physical therapy, which she underwent from January through March 2003.
11. Dr. Musman did not report any radicular component to Claimant’s low back pain, although he did note some ipsilateral buttock tenderness. The physical therapy evaluation reported some intermittent left lower extremity paresthesias, but no other radicular symptoms.
12. Claimant made slow progress with physical therapy. She became independent with her home exercise program, and demonstrated excellent compliance. However, she continued to experience low back pain, though there was no progression of any neurologic symptoms in her lower extremities. Her sleep was disturbed due to pain, and in April 2003 Dr. Musman noted that she was suffering from “low grade depression from pain.”
13. In March 2003 Dr. Musman referred Claimant to Dr. Michael Horgan, a neurosurgeon, for a surgical consult. Dr. Horgan examined Claimant in April 2003. He described her as “straightforward and pleasant.” Dr. Horgan reported that Claimant described pain predominantly in the low back itself, but also radiating down the left buttock into the left thigh. As to treatment recommendations, Dr. Horgan reported back to Dr. Musman as follows:
I have discussed with [Claimant] in detail the conservative strategies which I know you have gone over with her versus operative management. This is typically a lifestyle type issue and a pain issue and although I do not think she is at particular risk for nerve damage, the decision is one of pain control. I think she stands a good chance of pain control with surgery, although it is a significant undertaking. I discussed with her and described the risks in general and she would like to most likely pursue this course.
14. Prior to making a final decision as to surgery, Dr. Horgan recommended that Claimant obtain a lumbar spine MRI. Claimant did so on May 3, 2003. With the results in hand, Dr. Horgan re-evaluated Claimant on May 13, 2003. The MRI revealed no disc herniations, but evidence of a “very mild grade” spondylolisthesis. Dr. Horgan again discussed surgical intervention versus ongoing conservative management with Claimant. Claimant elected to forego surgery and continue with conservative treatment.
15. Claimant continued to treat with Dr. Musman through the summer of 2003. She underwent two sacroiliac joint injections and also resumed physical therapy. Her low back pain persisted.
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16. On June 24, 2003 Dr. Horgan re-evaluated Claimant. He reported that she had experienced slight pain relief following Dr. Musman’s joint injection, but without prolonged effect. Dr. Horgan again discussed with Claimant the rationale for conservative versus operative management, and reported that she was “very against” any type of surgical intervention. Dr. Horgan stated that Claimant’s decision to continue with conservative treatment was “completely appropriate given her normal neurologic state,” but also stated that she should “call me at any time if her symptoms change or if she reconsiders.”
17. From August 2003 until December 2005 Claimant treated regularly with Pierre Angier, D.O., Dr. Musman’s associate. Like Dr. Musman, Dr. Angier’s treatment consisted of osteopathic manipulation, trigger point injections, massage and anti-inflammatories. At various times Dr. Angier reported that Claimant’s low back pain was improved. At other times, however, Dr. Angier reported that Claimant’s pain was worsened, and included occasional pain and paresthesias into her buttocks and left leg as well.
18. At Dr. Angier’s referral, in April 2005 Claimant returned to Dr. Horgan for another surgical consult. Dr. Horgan reported that Claimant’s low back pain had persisted despite prolonged conservative management, and that she now suffered from bilateral lower extremity pain as well, left greater than right. Dr. Horgan noted that Claimant was “quite uncomfortable” and concluded that she was a “reasonable surgical candidate.”
19. Claimant underwent additional MRI scanning in August 2006. Among the findings, consistent with earlier scans, were degenerative disc changes at L4-5 and L5-S1, a small herniation at L4-5 and neural foraminal narrowing at L5-S1. X-rays taken in April 2007 also showed findings consistent with earlier films, notably a bilateral pars defect of L5, grade 1 anterolisthesis of L5 over S1 and mild disc space narrowing from L3 to S1.
20. Dr. Horgan testified on Claimant’s behalf at the formal hearing. Dr. Horgan has been an attending neurosurgeon at Fletcher Allen Health Care since 2000, and has been board-certified in neurosurgery since 2005. Approximately 80% of his practice involves evaluating and treating patients, with the remaining 20% spent on teaching and research.
21. Dr. Horgan defined spondylolisthesis as a fracture through a portion of the vertebrae. The fracture separates the surrounding facet joints and at L5-S1 leads to slippage of the bone on the sacrum. Often, the fracture occurs in childhood, but remains asymptomatic and therefore can go unnoticed for years. Then, a “sentinel event” occurs that causes the fracture to become painful. The actual pathology that triggers the pain to arise is not clearly understood. Thus, the diagnosis of spondylolisthesis as the cause of a patient’s back pain is often one of exclusion – the rest of the patient’s spine is in good condition, and the fracture presents the only significant abnormality.
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22. Dr. Horgan testified that the fracture in Claimant’s spine was very clearly seen on x-ray. In addition, once Claimant began to complain of pain traveling down her legs, Dr. Horgan became concerned about possible nerve entrapment and damage. This occurs when the slippage of the bone on the sacrum causes scar tissue to form and build up in the foramen, the hole through which the spinal nerves travel. The involved nerves become stretched, sensitized and pinched, which causes radicular symptoms.
23. Dr. Horgan testified that Claimant’s May 2003 MRI scan revealed “solid findings” confirming both the slippage of bone at L5 onto S1 and also a pinched nerve at L5. The L5 nerve was more pinched on the left side than on the right, which coincided with Claimant’s report of more radicular symptoms on that side.
24. Dr. Horgan testified that his review of Claimant’s x-rays and MRI scans showed “very little” degenerative disc disease for a woman of her age. Thus, the only significant abnormality he detected was the spondylolisthesis at L5-S1. In Dr. Horgan’s opinion, the injury Claimant suffered on June 10, 2002 was the “sentinel event” that most likely triggered the spondylolisthesis to become symptomatic.
25. Dr. Horgan testified that the course of treatment Claimant had undergone up until the time he first evaluated her was entirely appropriate and reasonable. In his opinion, Claimant has been a “good patient,” who has taken her condition seriously and has engaged actively in all attempts at conservative management. With persistent pain after more than three years, however, Dr. Horgan believes it is reasonable to conclude that she has failed conservative management. He now recommends spinal fusion surgery as the treatment most likely to relieve her pain and improve her function.
26. Dr. Horgan has found no evidence of symptom magnification in Claimant’s behavior, nor has he observed any other “red flags” for possible secondary gain issues. Such red flags might have included a patient desperate for surgery notwithstanding the doctor’s strong recommendation against it, a patient who was not working, or a patient who exhibited symptoms and pain behaviors discordant with objective findings. Were a patient to exhibit such behaviors, Dr. Horgan would consider obtaining a psychological evaluation prior to recommending surgery. Claimant has exhibited no such behaviors here, however. She has been reluctant to pursue surgery as a treatment option, has continued to work and does not exhibit extraordinary pain behavior. Therefore, Dr. Horgan does not believe a psychological evaluation is necessary.
27. Dr. Horgan performs thirty to forty surgeries annually of the type he is proposing for Claimant and an additional thirty to forty surgeries annually involving other types of lumbar fusion. His success rate, which he described as a good to excellent result, though not necessarily pain free, is 70-80%.
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28. At Defendant’s request, in September 2003 Dr. Christopher Brigham performed a review of Claimant’s medical records. This was followed by an independent medical evaluation performed by Dr. Brigham’s associate, Dr. William Boucher, in August 2004. In contrast to Dr. Horgan’s opinion, both doctors concluded that Claimant’s L5-S1 spondylolisthesis was clinically insignificant. Both found that Claimant’s subjective complaints were more marked than her objective findings, and both concluded that this might be an indication of symptom magnification behavior. Both recommended that Claimant undergo an analysis of potential psychosocial, behavioral, personality and psychological contributants to her delayed recovery. Both counseled against surgery or other invasive treatment options. Last, as of August 2004 Dr. Boucher concluded that the lumbar strain Claimant suffered on June 10, 2002 most likely had long since resolved and that Claimant required no further treatment.
29. At Defendant’s suggestion, in October 2003 Dr. Verne Backus evaluated Claimant for the purposes of rendering a second opinion/consultation. Dr. Backus diagnosed chronic mechanical low back pain. He reported that the low back pain Claimant experienced after the June 2002 accident had resolved by September 2002. Dr. Backus stated that he did not know what caused Claimant’s symptoms to increase after that, but that there was no causal relationship between any of her current complaints and the June 2002 injury.
30. At Defendant’s request, in January 2005 Claimant underwent an independent medical evaluation with Dr. John Johansson, an osteopath. Dr. Johansson diagnosed Claimant with “standard, run-of-the-mill mechanical low back pain,” which he felt was causally related to her June 2002 injury. Dr. Johansson did not comment specifically on the efficacy of fusion surgery as a treatment option, but did state that his only treatment recommendation would be a home exercise program involving “classic” lumbar stabilization exercises.
31. In December 2005, again at Defendant’s request, Claimant underwent an independent medical evaluation with Dr. Victor Gennaro, an osteopath and orthopedic surgeon. Dr. Gennaro diagnosed chronic low back pain and strain. He could not conclude that Claimant’s symptoms were attributable to her spondylolisthesis. He opined that the increase in Claimant’s symptoms might be due to age-related disc deterioration, but he could not state this with certainty.
32. Dr. Gennaro agreed with Dr. Brigham that surgery was not indicated in Claimant’s case, at least in part because she had not undergone a comprehensive psychological evaluation to identify possible secondary gain issues. Instead, Dr. Gennaro opined that the primary treatment for Claimant’s back pain should be smoking cessation, mild aerobic exercise, weight loss and abdominal strengthening.
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33. According to Dr. Gennaro, smoking hinders blood circulation and can cause a patient’s spondylolisthesis to become increasingly unstable and more symptomatic. It also significantly decreases the likelihood of successful fusion. Aerobic exercise helps increase blood circulation to the spine and strengthens both abdominal and lower back muscles. Dr. Gennaro testified that if Claimant were to quit smoking, engage in aerobic exercise and lose weight, there was a better than 50% chance that her pain would be relieved.
34. In Dr. Gennaro’s opinion, the positive indications for surgery in a case such as Claimant’s would include verifiable radiculopathy in the lower extremities, MRI results documenting significant encroachment on the nerve roots or foramen and a negative response to conservative treatment measures. As contraindications against surgery, Dr. Gennaro listed significant or severe obesity, heavy smoking, significant unresolved psychological issues and severe narcotic use.
35. Dr. Gennaro testified that he performs fewer than ten spinal fusion surgeries yearly. He stated that although he agreed with Dr. Brigham’s recommendation that Claimant undergo psychological testing, he did not often have his own patients undergo such screening. He did not find any evidence of malingering or symptom magnification in the course of his examination of Claimant.
36. Dr. Gennaro acknowledged that Claimant has permanent symptoms in her low back arising from her June 2002 injury. He testified that he could not share Dr. Horgan’s optimism as to the likelihood that fusion surgery would result in a decrease in Claimant’s symptoms, though he could not rule out the possibility that it might.
37. Claimant testified credibly at the hearing as to the nature and extent of her back pain and its impact on her daily activities. Her low back aches, and she experiences sharp, shooting pains into her buttocks and down her left leg. When seated, her back “pulls” and her legs fall asleep. Stepping off a curb or bending down might cause pain so severe it “takes my breath away.” Prior to the June 2002 injury, she walked for exercise, as much as 2 miles daily, but she is unable to do so now. She feels limited in her ability to play with her grandchildren or go shopping. She can no longer mow her lawn, make the beds or vacuum. She tries to strengthen her abdominal muscles by holding her stomach in when she walks, but any other exercise makes her back ache “terrible.”
38. Aside from a period of temporary total disability following shoulder surgery, Claimant has continued to work since the June 2002 accident. Her job responsibilities have changed, so that she no longer is required to do any heavy lifting, and her work station has been adjusted ergonomically. Claimant testified that she enjoys her job and does not like being out of work.
39. Claimant currently smokes 4-5 cigarettes daily. She testified that she intends to quit prior to undergoing fusion surgery. Claimant currently stands 4’11” tall and weighs 135 pounds. None of the various medical providers who have treated or examined her have described her as overweight or obese.
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40. Claimant had suffered a prior low back injury in 1994, when she slipped while descending a ladder. Her symptoms fully resolved after a few months. Aside from occasional back aches, Claimant had not experienced any low back pain in the intervening years prior to the June 10, 2002 accident, and certainly nothing of the type and degree she experienced following that event.
CONCLUSIONS OF LAW:
1. Under Vermont’s Workers’ Compensation Act, the employer must furnish “reasonable surgical, medical and nursing services to an injured employee.” 21 V.S.A. §640(a). In determining what is reasonable, “the decisive factor is not what the claimant desires or what she believes to be the most helpful. Rather, it is what is shown by competent expert evidence to be reasonable to relieve the claimant’s back symptoms and maintain her functional abilities.” J.H. v. Therrien Foundations, Opinion No. 53-05WC (August 19, 2005); P.F. v. Ethan Allen, Opinion No. 50-05WC (August 9, 2005); Quinn v. Emery Worldwide, Opinion No. 29-00WC (September 11, 2000).
2. When an employer seeks to terminate coverage for medical benefits, it has the burden of proving that the treatment at issue is not reasonable. S.S. v. The Book Press, Opinion No. 06-07WC (February 21, 2007); Liscinsky v. Temporary Payroll Incentives, Inc., Opinion No. 9-01WC (March 22, 2001), citing Rolfe v. Textron, Inc., Opinion No. 8-00WC (May 16, 2000). A treatment may be unreasonable either because it is not medically necessary or because it is not related to the compensable condition or injury. S.S. v. The Book Press, supra; see, e.g., Morrisseau v. State of Vermont, Agency of Transportation, Opinion No. 19-04WC (May 17, 2004).
3. In this case, therefore, two issues must be addressed. First, are Claimant’s current low back symptoms causally related to her June 10, 2002 work injury? Claimant argues that they are, because they are generated by her underlying spondylolisthesis, which became symptomatic as a result of the work injury. Defendant argues that they are not, either because Claimant’s spondylolisthesis is clinically insignificant or because it became symptomatic as a result of the natural degenerative aging process and not because of the June 2002 work injury.
4. If the first issue is resolved in Claimant’s favor, then the second issue is whether spinal fusion surgery is a reasonable treatment. Claimant argues that it is, because it offers a favorable success rate and will likely relieve her symptoms and improve her functional abilities beyond what she has been able to accomplish with conservative treatment. Defendant argues that it is not.
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5. As to the first issue, it is true, as the leading workers’ compensation commentator has stated, that all of the medical consequences and sequelae that flow from an injured worker’s primary compensable injury are themselves compensable as well. 1 Larson’s Workers’ Compensation Law §10.01. Determining which medical consequences flow from the primary injury and which do not, however, requires expert medical testimony. Lapan v. Berno’s, Inc., 137 Vt. 393 (1979). Establishing the requisite connection, furthermore, requires more than mere possibility, suspicion or surmise. Rather, the inference from the facts proved must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
6. In claims involving conflicting medical evidence from expert witnesses, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive, considering (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).
7. Dr. Horgan testified that the June 2002 injury was the “sentinel event” that triggered Claimant’s underlying spondylolisthesis to become symptomatic. Although he could not explain the specific pathology that causes the dormant condition to light up and produce symptoms, his testimony as to causal relationship was credible. Dr. Horgan has been one of Claimant’s treating physicians since 2003. He has witnessed the progression of Claimant’s symptoms over time. His interpretation of Claimant’s x-rays and MRI scans provide objective support for his opinion that Claimant’s pain is being generated by her L5-S1 spondylolisthesis. Dr. Horgan is trained as a neurosurgeon, and has treated numerous patients with conditions similar to Claimant’s.
8. None of the medical experts who hold conflicting opinions as to causation have treated Claimant, and therefore none of them have been able to evaluate either her symptoms or her response to conservative treatment over time. None of them have neurosurgical training or experience. Most significantly, none of them have provided an explanation for Claimant’s current symptoms that is as cogent and persuasive as Dr. Horgan’s. To state that there is no explanation for Claimant’s current symptoms, as Dr. Backus did, or simply to conclude that the lumbar strain suffered in June 2002 “has long since resolved,” as Dr. Boucher did, is patently insufficient to negate Dr. Horgan’s finding of causal relationship. Even Dr. Gennaro, who provided the most thoughtful testimony in support of Defendant’s position, could not rule out the possibility that Claimant’s spondylolisthesis became symptomatic because of the June 2002 injury, and could not posit any alternative theory of causation to the required degree of medical certainty.
9. I find, therefore, that Dr. Horgan’s expert opinion as to the causal relationship between Claimant’s current symptoms and her June 2002 injury is the most credible.
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10. Turning to the second issue, whether spinal fusion surgery is a reasonable treatment option, again Dr. Horgan’s expert opinion merits the greatest weight. As noted, Dr. Horgan has been one of Claimant’s treating physicians and therefore has witnessed her commitment to conservative treatment measures, none of which have proven successful. As a neurosurgeon, Dr. Horgan has performed many surgeries of the type he proposes to perform on Claimant, on patients with similar objective findings and subjective complaints. His post-surgical prognosis for Claimant may be optimistic, but it is borne out by his own surgical experience and success rate.
11. Defendant’s medical experts do not share Dr. Horgan’s optimism. The factors they point to as contraindications against surgery, however – the lack of verifiable findings of radiculopathy, morbid obesity, heavy smoking and unresolved psychological issues, for example – are not present here. Claimant has exhibited radicular symptoms at times, as is well documented in her treatment records. She is not morbidly obese and is not a heavy smoker. Most notably, she has not behaved in any was as to indicate that unresolved psychological or secondary gain issues are motivating her to seek surgery.
12. Claimant testified credibly as to the impact her condition has had on her life, the pain she experiences and the functional limitations she endures. She committed herself to conservative treatment measures, but these have failed. The surgical treatment option Dr. Horgan has proposed is at least reasonably likely to be successful at ameliorating her symptoms and improving her quality of life. Under these circumstances, Claimant is entitled to the benefit of any doubt as to whether in fact this will occur. See J.H. v. Therrien Foundations, supra; P.F. v. Ethan Allen, supra.
13. The burden of proof is on Defendant to establish that the proposed surgery does not constitute reasonable treatment for Claimant’s condition. I find that Defendant has not done so. The most credible evidence establishes that surgery is an appropriate option for Claimant to pursue. She has earned the right to attempt it.
14. Having prevailed on her claim, Claimant is be entitled to recover reasonable attorney’s fees and costs pursuant to 21 V.S.A. §678(a) and Workers’ Compensation Rule 10. The Attorney’s fees are reasonable. However, the cost for the expert exceeds the amount of $300.00 per hour in the Rules. The Defendant has objected to costs on this basis. Therefore, Claimant’s attorney has thirty days to file an amended list of costs for consideration.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is ORDERED to pay:
1. Workers’ compensation benefits associated with proposed fusion surgery, including payment of medical bills and both temporary and/or permanent disability benefits, as proven following the procedure.
2. Claimant’s request for attorney’s fees in the amount of $5,157.00.
3. An amended itemized list of Claimant’s costs should be forwarded to the Department within 10 days with appropriate hourly rates for expert deposition testimony and hearing testimony pursuant to Rule 40.1. Upon receipt and a determination of reasonableness, these costs will be awarded.
Dated at Montpelier, Vermont this 28th day of September 2007.
_______________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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.

Sharon Dobson Ethan Allen Interiors Inc. (July 25th, 2014)

Categories: Workers' Compensation Hearing DecisionTags: , Author:

Sharon Dobson Ethan Allen Interiors Inc. (July 25th, 2014)
STATE OF VERMONT
DEPARTMENT OF LABOR
Sharon Dobson Opinion No. 11-14WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Ethan Allen Interiors, Inc.
For: Anne M. Noonan
Commissioner
State File No. Z-56664
OPINION AND ORDER
Hearing held in Montpelier, Vermont on March 28, 2014
Record closed on May 3, 2014
APPEARANCES:
Steven Adler, Esq., for Claimant
Andrew Boxer, Esq., for Defendant
ISSUE PRESENTED:
Is total knee replacement surgery reasonable and necessary medical treatment for
Claimant’s work-related left knee condition?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Letter from Dr. O’Neill, March 5, 2014
Claimant’s Exhibit 2: American Academy of Orthopedic Surgeons, information page
Claimant’s Exhibit 3: Treatment timeline
Claimant’s Exhibit 4: List of references to Joint Exhibit I
Claimant’s Exhibit 5: Curriculum vitae, Dr. Spina
Claimant’s Exhibit 6: Curriculum vitae, Dr. MacArthur
Defendant’s Exhibit A: American Academy of Orthopedic Surgeons, appropriate use
criteria
Defendant’s Exhibit B: Left knee x-ray, March 6, 2014
Defendant’s Exhibit C: Left knee x-ray, upright view
Defendant’s Exhibit D: Left knee x-ray, bent knee view
Defendant’s Exhibit E: Right and left knee x-ray, upright view
Defendant’s Exhibit F: Left knee x-ray, top view
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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.
3. Claimant worked for Defendant for 22 years; her last position was that of final inspector
on the production line. On November 29, 2007 she was inspecting an armoire when it
fell onto and over her. The bottom of the armoire remained on the tracks and Claimant’s
workbench stopped it from falling completely on top of her. The drawers of the armoire,
in Claimant’s credible words “nailed her on her left knee.”
Claimant’s Course of Treatment
4. Claimant experienced significant pain and that day applied ice packs to her knee. She
sought medical attention on December 3, 2007 in the emergency department of her local
hospital. The physician diagnosed her with a knee contusion, noting mild swelling, a
mild limp and a slight hematoma. Claimant was released to return to sedentary work.
5. Over the next week Claimant returned twice to the emergency department complaining of
knee pain without improvement. Thereafter she was referred to Dr. Spina, an orthopedic
surgeon. He diagnosed her with a patellar contusion with subsequent traumatic bursitis
and referred her to physical therapy.
6. Despite time, rest and physical therapy, Claimant’s left knee pain did not improve. In
January 2008 an MRI revealed a complex tear in the posterior horn of her medial
meniscus. Dr. Spina performed a diagnostic and therapeutic arthroscopy in February
2008. He found Grade III articular cartilage injury to the patella and widespread Grade
III articular cartilage damage to the medial femoral condyle.
7. Over the course of the next year, Claimant participated in physical therapy and received
cortisone injections to her left knee. During this entire time she reported no improvement
in her pain levels. She saw several different physicians in an attempt to improve her
condition, all to no avail.
3
8. In January 2009 Claimant saw Dr. O’Neill, a knee specialist at the Alpine Clinic. In Dr.
O’Neill’s opinion, she presented a difficult case. Despite excellent care, her knee was not
“cooperating.” Dr. O’Neill recommended a repeat diagnostic arthroscopy. If that
surgery did not alleviate her symptoms, Dr. O’Neill advised that a total knee replacement
might be necessary.
9. Dr. O’Neill performed a second arthroscopy in March 2009. During the surgery, he
observed Grade III changes diffusely on the medial femoral condyle, as Dr. Spina had
during Claimant’s February 2008 arthroscopy. Dr. O’Neill made a lateral release and
removed adhesions. Believing that the adhesions were the source of Claimant’s pain, he
was optimistic about her prognosis.
10. After feeling better initially, Claimant’s pain returned. Again, physical therapy and
injections over the next 18 months did not improve her condition.
11. Claimant returned to Dr. Spina’s care in September 2010. His diagnosis was progressive
degenerative arthritis of the medial and patellofemoral compartments of the left knee.
12. After additional x-rays and an MRI, Dr. Spina recommended a third exploratory and
diagnostic arthroscopy. This surgery, performed in February 2011, consisted of a
chondroplasty with microfracture to promote new cartilage growth. During this surgery
Dr. Spina noted widespread Grade III and IV degenerative changes on the weight-bearing
surface of the medial femoral condyle, which was the site of the original work injury.
13. Claimant engaged in regular physical therapy and showed some improvement. However,
from May through November 2011, as Claimant followed up with Dr. Barnard, an
orthopedic surgeon, she complained of aching, burning and at times stabbing knee pain.
Her objective signs were all normal, however. Dr. Barnard did not think any further
surgery was warranted and instead recommended more physical therapy.
14. In August 2011 Claimant saw Dr. Glorieux-Sullivan, another orthopedic surgeon, who
filled in for Dr. Barnard. Dr. Glorieux-Sullivan reported that since her work injury
Claimant had suffered four years of persistent left knee pain, which severely limited her
activities of daily living. Nevertheless, her MRI did not reveal sufficiently abnormal
findings to justify a total knee replacement. For that reason, Dr. Glorieux-Sullivan did
not think further surgery was warranted.
15. In a November 2011 office visit with Dr. Barnard, Claimant continued to complaint of
stabbing pain and knee buckling that caused her to fall. As he did not have much to offer
her, Dr. Barnard advised her to seek a second opinion at Dartmouth-Hitchcock Medical
Center.
16. At DMHC Claimant saw Dr. Bernini, an orthopedic surgeon specializing in knees. Dr.
Bernini reviewed Claimant’s x-rays and examined her. He believed her symptoms were
far in excess of what her exams and x-rays demonstrated. Concerned that Claimant
might have developed complex regional pain syndrome, Dr. Bernini felt that further
surgery was the worst possible intervention for her.
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17. At Defendant’s request, in March 2012 Claimant underwent an independent medical
examination with Dr. Boucher, a specialist in occupational medicine. Dr. Boucher
diagnosed Claimant with left patellofemoral chondromalacia, with an additional
component of somatization disorder. That is, he thought Claimant’s pain was “nonnegotiable,”
and out of proportion both to her physical findings and to the findings on her
diagnostic studies. Dr. Boucher did not believe Claimant required any further medical
treatment other than over-the-counter analgesics and exercise. In his opinion she had
reached an end medical result, with a three percent whole person permanent impairment
attributable to atrophy in her left quadriceps muscles.
18. Claimant next saw Jason Raehl, a physician’s assistant at the Alpine Clinic, in June 2012.
New x-rays revealed advanced patellofemoral arthritis, to the point that her knee was
bone on bone. Given that Claimant had exhausted all possible conservative treatments,
Mr. Raehl referred her to Dr. MacArthur, also at the Alpine Clinic, for a consultation.
Dr. MacArthur is a board certified orthopedic surgeon with a subspecialty in total joint
replacements. Over the course of his career, he has replaced at least 2,000 knees.
19. Claimant first saw Dr. MacArthur in October 2012. He diagnosed her with osteoarthritis
of the left knee with primary bone on bone changes. These changes affected the manner
in which the patellofemoral joint came together and, in his opinion, were likely what
caused most of Claimant’s knee pain. I find this analysis credible.
20. For treatment Dr. MacArthur offered Claimant three options: (1) “benign neglect,” that
is, pain management via non-steroidal anti-inflammatory agents and activity
modification; (2) patellofemoral joint replacement surgery; or (3) total knee replacement.
As between the two surgical options, Dr. MacArthur voiced a stronger preference for a
total knee replacement, because it has a history of better outcomes than patellofemoral
joint replacement surgery. I find this analysis credible.
21. Dr. MacArthur next saw Claimant in October 2013. New x-rays showed that the arthritis
in her left knee seemed to be progressing radiologically. Dr. MacArthur continued to
believe that a total knee replacement was the treatment of choice.
5
Expert Medical Opinions
22. The parties presented conflicting expert opinions on the issue whether a total knee
replacement constitutes reasonable treatment causally related to Claimant’s work injury.
(a) Dr. Spina
23. In Dr. Spina’s opinion, Claimant’s best treatment option at this time is total knee
replacement. She continues to suffer from pain, both activity-related and, more recently,
when at rest while sleeping as well. In the course of his February 2011 arthroscopy
(Claimant’s third such surgery), Dr. Spina visualized a wide area of bone-on-bone
involvement in her knee, which he suspects is the cause of her pain. Having already
undergone both conservative therapies and multiple arthroscopies without effective
resolution of her symptoms, Dr. Spina thus believes that a total knee replacement is now
medically necessary. I find this opinion credible.
(b) Dr. MacArthur
24. In Dr. MacArthur’s opinion, there is “no doubt” that Claimant needs a total knee
replacement and that the procedure will “very, very likely alleviate her symptoms.” He
conceded that she is relatively young for the procedure and that it is an option of last
resort. However, given that she has “toughed out” her pain since the original work injury
in 2007, and also that she has exhausted all other conservative treatment alternatives, a
total knee replacement presents the best remaining treatment available to her. That
historically, total knee replacement surgeries have an 85 to 90 percent success rate makes
it an even stronger option. I find this analysis credible.
25. In rendering his opinion, Dr. MacArthur acknowledged that he did not review the
medical records of Drs. Barnard, Glorieux-Sullivan or Bernini. Having consulted with
his practice partner, Dr. O’Neill, he felt that it was unnecessary for him to do so. Dr.
O’Neill informed him that the degeneration he visualized while performing Claimant’s
second arthroscopic surgery was even worse than what her x-ray showed. Actually
visualizing the knee is widely accepted as the gold standard for diagnosing the extent of
degeneration. Thus, with the benefit of Dr. O’Neill’s surgical observations, Dr.
MacArthur was confident that his opinion was well-supported, and his treatment
recommendation justified.
26. Dr. MacArthur buttressed his opinion with objective findings. As shown on her 2012 xray,
Claimant’s left knee joint was bone on bone medially and laterally (that is, on both
sides). In addition, Drs. Spina and O’Neill both had observed Grades III and IV cartilage
damage in the course of their respective arthroscopic surgeries. According to Dr.
MacArthur, Claimant’s prior surgeries served to “buy her some time.” Unfortunately,
however, as she is no longer tolerating her pain, the joint now needs to be replaced. Dr.
MacArthur was credible in all respects in this testimony.
6
(c) Dr. Glorieux-Sullivan
27. Dr. Glorieux-Sullivan testified by deposition. In her opinion, which she limited to her
knowledge of Claimant’s condition as of August 2011,1 Claimant is not an appropriate
candidate for a total knee replacement. First and foremost, at age 53 she is a relatively
young patient for such a procedure. The lifespan of a total knee replacement is twenty
years. Thus, the possibility exists that she will need revision surgery, which is more
invasive and carries the risk of more complications, when she is 73 years old. With that
in mind, and considering also the apparent lack of significant disease in Claimant’s knee,
Dr. Glorieux-Sullivan recommends against the procedure.
(d) Dr. Sobel
28. At Defendant’s request, Dr. Sobel, a board certified orthopedic surgeon, performed a
records review in Claimant’s case in April 2013, followed by an in-person independent
evaluation in May 2013. Dr. Sobel diagnosed Claimant with a contusion of the distal
quadriceps as well as a contusion of the superior patella.
29. In Dr. Sobel’s opinion, total knee replacement surgery is not a reasonable and necessary
treatment in this case. He based his opinion on the following:
· Throughout all of her treatment, Claimant’s objective findings revealed a
relatively normal knee with typical age-related wear and tear patterns;
· The work injury did not cause severe trauma, as evidenced by the lack of
significant abrasion, hemarthrosis, effusion or ligamentous injury reported in the
first operative report;
· Claimant’s ongoing subjective reports of pain have not been supported by
objective examination or diagnostic tests and therefore suggest somatization
and/or symptom exaggeration on her part;
· Four previous orthopedic surgeons have advised against a total knee replacement,
and three previous arthroscopies have failed to relieve her pain; and
· According to his analysis, the medical records do not document bone on bone end
stage arthritis.
1 Dr. Glorieux-Sullivan did not review any of Claimant’s medical records subsequent to her August 2011 visit.
7
30. Dr. Sobel conceded that in order to assess the condition of a patient’s knee joint, direct
visualization is preferable to reviewing an x-ray. That both Dr. Spina and Dr. O’Neill
were able to visualize objective findings during their surgeries thus weakens Dr. Sobel’s
conclusion that Claimant was exaggerating her symptoms, therefore. Dr. Sobel also
failed to document the bone on bone status of Claimant’s knee as shown in the x-rays
taken in conjunction with her June 2012 evaluation, Finding of Fact No. 18 supra. This
omission further undermines his conclusions.
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. Vermont’s workers’ compensation statute obligates an employer to pay only for those
medical treatments that are determined to be both “reasonable” and causally related to the
compensable injury. 21 V.S.A. §640(a); MacAskill v. Kelly Services, Opinion No. 04-
09WC (January 30, 2009). The commissioner has discretion to determine what
constitutes “reasonable” medical treatment given the particular circumstances of each
case. Id. A treatment can be unreasonable either because it is not medically necessary or
because it is not related to the compensable injury. Baraw v. F.R. Lafayette, Inc., Opinion
No. 01-10WC (January 20, 2010).
3. The sole issue presented in this case is whether left total knee replacement surgery is
reasonable medical treatment for Claimant’s 2007 work injury.2 The parties presented
conflicting expert medical testimony on this question. In such cases, the commissioner
traditionally uses a five-part test to determine which expert’s opinion is the most
persuasive: (1) the nature of treatment and the length of time there has been a patientprovider
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).
2 Defendant did not contest that Claimant’s left knee condition was causally related to her compensable work injury.
8
4. Relying primarily on the third factor, I conclude that the opinions of Drs. Spina and
MacArthur are more credible than the opinions of Drs. Glorieux-Sullivan and Sobel. Drs.
MacArthur’s and Spina’s opinions were clear and thorough. More important, they were
based on the objective findings that each of Claimant’s three arthroscopies revealed. For
these reasons, I conclude that they were more compelling.
5. In contrast, Dr. Glorieux-Sullivan’s opinion was dated and specifically limited to what
she knew of Claimant as of August 2011. She thus failed to take into account both the
worsening appearance of Claimant’s knee joint, as documented in the June 2012 x-rays,
and Claimant’s worsening symptoms, which now include pain even at rest. For those
reasons, her opinion is of questionable usefulness.
6. As for Dr. Sobel, his analysis lacks the benefit of having directly visualized Claimant’s
knee joint, which even he admitted was preferable to merely viewing it on x-ray. As
such, his opinion does not carry as much weight as Dr. Spina’s.
7. 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). Based on Dr. MacArthur’s
credible opinion, I conclude here that a total knee replacement is very likely to alleviate
Claimant’s symptoms.
8. This is not a case, as Defendant argues, where the three prior failed surgeries
contraindicate a fourth surgery. See Simmons v. Landmark College, Opinion No. 07-
13WC (March 6, 2013). The cervical surgeries in that case were intended to cure the
claimant’s pain, but failed to do so. The treating surgeon hoped that a fourth surgery
would be more effective. However, lacking any objective basis for concluding that the
area of the proposed fourth surgery was actually the pain generator, her opinion was
deemed unpersuasive. On those grounds, the Commissioner determined that the surgery
did not constitute reasonable medical treatment.
9. In contrast, the three surgeries Claimant previously has undergone here were intended
primarily to “buy her some time” before a total knee replacement became necessary.
Indeed, as early as January 2009 Dr. O’Neill predicted that if her second surgery failed to
alleviate her symptoms ultimately Claimant would require a total knee replacement. That
time has now arrived; total knee replacement surgery has become the treatment of choice.
10. I conclude that Claimant has sustained her burden of proving that total knee replacement
surgery constitutes reasonable medical treatment for her compensable work-related
injury. Under 21 V.S.A. §640, Defendant is therefore obligated to pay for it.
11. As Claimant has prevailed on her claim for benefits, she is entitled to an award of costs
and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days
from the date of this opinion within which to submit her itemized claim.
9
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED
to pay:
1. Medical benefits covering all reasonable medical services and supplies associated
with a total left knee replacement in accordance with 21 V.S.A. §640; and
2. Costs and attorney fees in amounts to be determined, in accordance with 21
V.S.A. §678.
DATED at Montpelier, Vermont this 25th day of July 2014.
__________________
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.

Nada Avdibegovic v. University of Vermont (February 23, 2009)

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

Nada Avdibegovic v. University of Vermont (February 23, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Nada Avdibegovic Opinion No. 06-09WC
By: Jane Gomez-Dimotsis, Esq.
v. Hearing Officer
University of Vermont For: Patricia Moulton Powden
Commissioner
State File No. W-50166
OPINION AND ORDER
Hearing held in Montpelier on August 8, 2008.
Record closed on September 5, 2008.
APPEARANCES:
Steve Robinson, Esq. for Claimant
Glenn Yates, Esq. for Defendant
ISSUES PRESENTED:
1. Was Claimant’s January 10, 2008 spinal fusion surgery reasonable and necessary medical treatment pursuant to 21 V.S.A. §640(a)?
2. If yes, is Claimant entitled to any reimbursement for, or interest on, the medical expenses incurred in connection with such surgery?
EXHIBITS:
Claimant’s Medical Exhibit and attachments
Defendant’s Medical Exhibit and attachments
Deposition of Dr. Martin Krag
Article coauthored by Dr. Scott Tromanhauser entitled “Low Back Pain with Risk Factors for Compromised Recovery”
2
CLAIM:
Compensation for the differential in medical expenses between the amounts paid by Claimant’s group health insurance coverage and the amounts required to be paid according to the Workers’ Compensation Medical Fee Schedule;
Interest pursuant to 21 V.S.A. §664;
Costs and attorney’s fees pursuant to 21 V.S.A. §678.
FINDINGS OF FACT:
1. Judicial notice is taken of all forms and correspondence contained in the Department’s files relating to this claim.
2. At all times relevant to these proceedings, Claimant was an employee and Defendant was an employer as those terms are defined in Vermont’s Workers’ Compensation Act.
3. On June 19, 2004 Claimant injured her lower back while doing janitorial service work for Defendant. Claimant had worked for Defendant for approximately six years prior to her date of injury. She had no prior history of injury or other problems in her back or legs. Claimant suffered an acute lumbar spine injury as a result of her work injury. Defendant accepted this injury as compensable and began paying workers’ compensation benefits accordingly.
4. Since the date of injury Claimant has seen numerous doctors. In September 2004 Dr. Binter, a neurosurgeon, performed a bilateral laminotomy and discectomy at L4-5. Claimant did not believe the surgery was successful because she continued to have both lower back and leg pain thereafter. Following the surgery Dr. Binter recommended physical therapy. She also referred Claimant to Dr. Abdu, another spine surgeon, for a second opinion. As of the formal hearing, Dr. Binter had not seen Claimant in almost four years.
5. In March 2005 Dr. Abdu evaluated Claimant for the purposes of rendering a second opinion as to her options for relieving the low back and right leg pain she was continuing to experience. Dr. Abdu noted that although Claimant had undergone physical therapy, pool therapy and injections, these treatments had not alleviated her ongoing pain complaints successfully. Dr. Abdu did not recommend fusion surgery at that point but instead suggested that Claimant undergo a functional restoration program.
6. Dr. Binter disagreed with Dr. Abdu’s treatment recommendation. She opined that Claimant’s best pain control options were continued physical therapy, pool therapy and work hardening.
3
7. At her attorney’s suggestion, Claimant underwent an evaluation with Dr. Gennaro, an orthopedic surgeon, in May 2005. Dr. Gennaro felt that Claimant had a number of treatment options, including additional physical therapy, medication, pool therapy and lumbar fusion surgery. As to the last option, Dr. Gennaro strongly suggested that Claimant stop smoking prior to undergoing any future surgeries. Cigarette smoking delays the healing process following a fusion and also increases the risk of infection.
8. Claimant is a lifetime smoker. At various periods in her life she has smoked from a half a pack of cigarettes daily to as much as two packs daily. As a result of concerns raised by her medical providers, however, Claimant reduced her smoking to four cigarettes per day. She has maintained herself at that lower level for several years.
9. At Defendant’s request, in June 2005 Claimant underwent an independent medical examination with Dr. Jonathan Fenton. Dr. Fenton suggested a pain management regimen. In that context, he referred Claimant to Dr. Cummings for prolotherapy, a treatment that involves injecting sugar water into the ligaments. Claimant attended two appointments with Dr. Cummings, but did not obtain any significant relief of her pain. Dr. Cummings refused to treat her subsequently because she was involved in a workers’ compensation case.
10. In 2007 Claimant pursued another course of physical therapy, again without success. By this time she was suffering from depression due to her pain and her limited ability to resume her normal activities.
11. For several years Claimant took significant dosages of pain medications, including methadone and fentanyl patches, in an effort to reduce her pain levels. These medications prevented her from thinking clearly and enjoying her life.
12. Claimant next was referred to Dr. Rinehart for another surgical consult. Dr. Rinehart in turn referred Claimant to Dr. Krag. Dr. Krag is a board certified orthopedic surgeon with many years of experience. He is well published on the topic of fusion surgery. Dr. Krag reviewed Claimant’s history and conducted diagnostic testing, including a provocative discogram.
13. Dr. Krag recommended that Claimant undergo fusion surgery. Among the factors he considered was the fact that the discogram revealed excessive angular motion between the L4-5 vertebrae. Dr. Krag also found relevant the fact that Claimant had failed to improve with conservative care such as physical therapy over a period of years.
14. Defendant disputed the reasonable necessity of the fusion surgery recommended by Dr. Krag and instead referred Claimant to Dr. Tromanhauser, a board certified orthopedic surgeon, for an independent medical evaluation. Dr. Tromanhauser later opined that fusion surgery was a reasonable medical option, but not one that he would recommend for Claimant. In his opinion, the results of such a surgery would be unpredictable given Claimant’s smoking, her prior lumbar surgery and her difficulty coping with pain.
4
15. With Dr. Tromanhauser’s opinion as support, Defendant refused to pay for the fusion surgery recommended by Dr. Krag. Claimant underwent the surgery nonetheless, on January 10, 2008. As of the formal hearing, she was approximately seven months post-surgery.
16. In Dr. Krag’s opinion, the surgery was successful. It reduced Claimant’s pain to a more reasonable level, albeit not to the extent she had hoped it would. Claimant continues to struggle with pain but needs less medication and thus is less mentally affected by her medication. She is trying to reconcile her expectations with reality and hopes that she will continue to improve.
17. As Defendant had denied coverage for the fusion surgery, Claimant submitted the medical bills for coverage under her husband’s group health insurance provider, Blue Cross/Blue Shield. Claimant’s husband also works for Defendant, and receives group health insurance coverage as an employee benefit. There is no evidence that Claimant herself paid any portion of the medical expenses related to her surgery out of her own pocket.
18. Claimant has submitted a claim for costs totaling $1,042.59 and attorney’s fees. As to the latter, Claimant argues that her attorney’s fees should be based on a contingent fee amounting to either 20% of the total cost of her fusion surgery, estimated to be more than $45,000.00, or $9,000.00, whichever is less.
CONCLUSIONS OF LAW
1. At issue in this claim is whether the spinal fusion surgery Claimant underwent in January 2008 was reasonably necessary. If it was, a secondary issue exists as to whether Claimant is entitled to monetary compensation for the difference between the amounts paid to her medical providers under her husband’s group health insurance coverage and the amounts that Defendant would have been obligated to pay under the Workers’ Compensation Medical Fee Schedule. Claimant also seeks interest as to any such amounts determined to be due.
2. 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).
5
3. Vermont’s workers’ compensation statute obligates an employer to pay only for “reasonable” medical services. 21 V.S.A. §640(a). The Commissioner has discretion to determine what constitutes “reasonable” medical treatment given the particular circumstances of each case. Where the employer has denied responsibility for the treatment ab initio, the burden of proving reasonableness rests with the claimant. P.M. v. Bennington Convalescent Center, Opinion No. 55-07WC (January 2, 2007).
4. The reasonableness of a medical procedure must be determined from the perspective of what was known at the time the treatment decision was made. MacAskill v. Kelly Services, Opinion No. 04-09WC (January 30, 2009). Expert medical testimony is required to make this determination. See Lapan v. Berno’s, Inc., 137 Vt. 393 (1979).
5. 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).
6. Defendant argues that Claimant’s spinal fusion surgery was not reasonable because four out of five spine surgeons determined she was not a good candidate for it. Defendant claims that Dr. Krag only agreed to perform the surgery because he “stretched” the case in favor of it.
7. Defendant’s argument is unpersuasive. First, none of the four surgeons to which it refers rendered an opinion as to the reasonableness of fusion surgery after all of the diagnostic tests had been completed, as Dr. Krag did. Dr. Binter had not evaluated or treated Claimant for almost four years prior to Dr. Krag’s decision to proceed. Drs. Abdu and Gennaro did not see her after 2005. Dr. Tromanhauser saw Claimant in 2007, but his evaluation occurred before the diagnostic studies considered by Dr. Krag were completed.
8. In the intervening years, Claimant’s situation changed. Most notably, she significantly reduced the extent of her cigarette smoking, which had been one of Dr. Gennaro’s primary concerns in 2005, when he listed fusion surgery as an option but not a recommendation. Claimant also underwent additional attempts at conservative therapy, all of which failed to reduce her pain complaints to more reasonable levels. Dr. Krag noted this consideration as a key factor to his decision to proceed with surgery.
9. It also is significant that while Dr. Tromanhauser did not recommend fusion surgery, he acknowledged that it was a reasonable medical option. By its plain language, §640 requires no more than that.
6
10. I find Dr. Krag’s opinion to be the most credible. It was timelier than any of the other experts’ opinions. It adequately considered both the progression of Claimant’s subjective complaints despite various attempts at conservative therapy and her objective findings. As a neurosurgeon, Dr. Krag has performed many surgeries of the type he performed for Claimant. His post-surgical determination was that the surgery was successful and that Claimant was experiencing less pain. Although such hindsight is not conclusive on the reasonableness issue, it is noteworthy nonetheless.
11. Claimant testified credibly as to the impact her condition has had on her life, the pain she experienced and the functional limitations she endured. She committed herself to conservative treatment measures, but those failed. Claimant has sustained her burden of proving that the surgical treatment option was a reasonable one for her to pursue.
12. Claimant has no basis, however, for demanding that Defendant pay her the difference between the amounts that her husband’s group health insurance carrier paid to her medical providers and the amounts Defendant should have paid pursuant to the Workers’ Compensation Medical Fee Schedule. This is a matter for resolution solely between the group health insurance carrier and Defendant.
13. Similarly, there is no basis for awarding Claimant interest. The statute directs that interest be paid on the total amount of “unpaid compensation” awarded to a prevailing claimant. 21 V.S.A. §664. Claimant herself has been awarded nothing, as she did not herself incur any medical expenses. To award her interest under these circumstances would result in a windfall neither contemplated nor intended by the statute. Rather, should any interest be awarded, it should flow to the group health insurance carrier, as it was the one that actually expended the funds that Defendant should have paid. Again, however, that is a matter to be determined between Defendant and the group health insurance carrier, one in which Claimant plays no role.1
14. Claimant has prevailed on her claim that her fusion surgery was reasonably necessary, but not on her claim for interest or other monetary compensation. Under these unique circumstances, I find that she is entitled to recover her costs, but not her attorney’s fees.
1 To the extent that this conclusion conflicts with the Commissioner’s determination in Clark v. Consolidated Memorials, Inc., Opinion No. 54C-06WC (June 6, 2007), that opinion is now expressly overruled.
7
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED:
1. Upon request, Defendant shall reimburse the group health insurance carrier, or any other third-party payer, for all medical benefits paid or payable that are related to the January 2008 fusion surgery; and
2. Defendant shall pay costs totaling $1,042.59.
DATED at Montpelier, Vermont this 23rd day of February 2009.
_________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

N. B. v Verizon (June 12, 2008)

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

N. B. v Verizon (June 12, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
N. B. Opinion No. 24-08WC
By: George K. Belcher
v. Hearing Officer
Verizon For: Patricia Moulton Powden
Commissioner
State File No. J-13315
OPINION AND ORDER
Hearing held on May 2, 2008 in Montpelier, Vermont.
Record Closed, May 21, 2008
APPEARANCES:
Christopher McVeigh, Esq., for the Claimant
J. Christopher Callahan, Esq., for the Defendant
EXHIBITS:
Joint Medical Exhibit: Medical Records of the Claimant
Claimant’s Exhibit 1: Photo of Claimant’s vehicle following accident
Defendant’s Exhibit 1: Curriculum Vitae of Dr. Tony Tannoury
ISSUE:
Is Claimant’s proposed double disc replacement and single level fusion surgery, to be performed by Dr. Delamarter in Santa Monica, California, a reasonable and necessary treatment option and should such treatment be authorized under Vermont Workers’ Compensation Law?
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FINDINGS OF FACT:
1. This matter was heard as an expedited hearing under Rule 7.4000 or the Workers’ Compensation and Occupational Disease Rules.
2. The Claimant, Nicholas Bonanno, suffered a work-related injury in a motor vehicle accident during the scope of his employment on December 22, 1995. Following the accident the Claimant had increasing lower back and leg pain. He received extensive, conservative treatment including injections and physical therapy for pain.
3. In November of 1998 the Claimant was in another motor vehicle accident on his way to physical therapy. The second accident was accepted as work related by the Defendant.
4. The Claimant continued to have lower back and right leg pain and, over time, the injections for pain became less effective. Despite many attempts at conservative treatment, the Claimant’s back pain has persisted to the current date.
5. In February of 2004 the Claimant had a “discogram”. This is a procedure which tests the structural integrity of the discs within the spine. This test determined that he had disc problems at the L5-S1 level and the L4-L5 level. It was proposed that he have a “two-level, 360 degree fusion surgery”. This type of surgery greatly concerned the Claimant because the fusion surgery was said to be irreversible with an 80% chance of success. Moreover, the Claimant was concerned that a result of the spinal fusion surgery would be a loss of spinal flexibility. The rigid spine caused by a fusion surgery transmits shocks and vibrations to the next level of spine above or below the fused disc.
6. In August of 2005, the Claimant went out of work despite accommodations. He had constant pain and trouble sitting or standing for long periods of time. He has not returned to work since August of 2005.
7. In 2007 additional tests were done on the L5-S1 level and it was determined that there was a mild spondylolithesis (slippage) at this level. Likewise it was determined that there were additional disk problems at the L4-L5 and L3-L4 levels. Dr. Rand proposed a three level fusion surgery. (Tab 26, Joint Medical Exhibit)
8. The Claimant has researched various back treatments. He learned of Dr. Rick Delamarter who is an expert in synthetic disc replacement surgery. In March of 2007, Dr. Delamarter evaluated the Claimant in California. Additional diagnostic tests were done in August of 2007. Dr. Delamarter determined that the Claimant was a good candidate for synthetic disc replacement surgery in the L4-L5 and L4-L3 levels of his spine. Dr. Delamarter determined that the Claimant would need a fusion surgery of his L5-S1 level. Dr. Delamarter proposed to do a hybrid surgery (one which combines a fusion of one level of the spine with disc replacements at other levels of the spine). The Claimant was scheduled for this surgery to be done on January 22, 2008.
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9. In mid-November, 2007, the Defendant scheduled the Claimant to be evaluated by Dr. Tony Tannoury. Dr. Tannoury gave the Claimant the recommendation that he have a fusion surgery to the L5-S1 level but that he not have disc replacement or fusion to the other two levels.
10. Based upon the opinion of Dr. Tannoury, the Defendant refused to pay for the surgery offered by Dr. Delamarter and the scheduled surgery was cancelled. Thus, the issue in this case is essentially whether the proposed surgery by Dr. Delamarter is reasonable.
11. Dr. Rick Delamarter is a board certified orthopedic surgeon. He became board certified in 1989. He has been an Associate Clinical Professor at the UCLA School of Medicine. He is the co-founder and director of the West Coast Spine Institute. He is credited in over 68 professional publications and has presented numerous times concerning artificial disc replacement. He is an instructor for surgeons who desire to be certified in the use of “Prodisc” artificial discs. He participated as a surgeon in one of the 17 centers that studied artificial discs for the U. S. Food and Drug Administration (FDA) approval in the United States.
12. The use of synthetic discs in back surgery has been studied in the United States following its use in Europe for some time. Dr. Delamarter is quite familiar with the use of synthetic discs because his workplace was a FDA approved site for the FDA study. The study had one “arm” which studied single level synthetic disc replacement. That study is complete and the FDA has approved the use of single-level, synthetic disc replacements in the United States. The use of synthetic discs in more than one level was another “arm” of the study and has not been acted upon by the FDA because the conclusions of that “arm” of the study have not been completed. The FDA action on this part of the study might not be complete for another 18 months.
13. Dr. Delamarter testified that the use of synthetic discs has been approved for single level disc replacements and that double synthetic disc replacements can be done legally “off-label”. The term “off-label” refers to the practice of prescribing drugs for a purpose outside of the scope of the drug’s label as approved by the FDA. While the FDA approves drugs and medical devices which are safe and effective, once a drug or device is approved, physicians may prescribe the drug or use the device as they deem medically effective. According to Dr. Delamarter, use of devices and drugs “off-label” is a common practice and is legal.1
14. Dr. Delamarter has performed several hundred double disc replacements with synthetic discs. His conclusions are that the synthetic disc replacements are significantly superior to fusions because the resulting range of motion is greater, the recovery time is one-third of the recovery time of fusion surgery, and the cost is less. The disc replacement decreases the “adjacent level process” significantly. According to Dr. Delamarter, under almost every measure, the outcome of synthetic disc replacement is better than fusion for those candidates who qualify. He characterized both the single level and double level synthetic disc replacements as safe and efficacious.
1 For a discussion of the legal effect of “off-label” practice see Conclusion of Law number 5.
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15. Dr. Delamarter examined the Claimant and is in a treating-physician role with him. He found that the Claimant needed a fusion at the L5-S1 level but that he would benefit from a synthetic disc replacement at levels L4-L5 and L4-L3. Dr. Delamarter was asked whether it might be possible to do the fusion first and then the disc replacements if the fusion surgery did not resolve the Claimant’s pain. Dr. Delamarter was unequivocal. His firm opinion was that both the L4-L5 level and L3-L4 were “pain generators” and needed disc replacement. He was also of the opinion that it would not be good practice to do the surgery twice. The scarring and lesions, which would result from the first surgery, would increase risk to the Claimant if the surgery were done in stages.
16. Dr. Tony Tannoury is an orthopedic surgeon who became board certified in July of 2005. He completed medical school in 1993. He has been an assistant professor of Orthopedic Surgery at the University of Virginia and Boston University.
17. Dr. Tannoury examined the Claimant and his medical records. His examination took place on November 28, 2007. He reviewed two discographies which appear to be those dated February 2, 2004 and March of 2007. (It does not appear that he reviewed the discogram of March of 2008 and it was unclear whether he reviewed the August 2007 discogram since that test report was not referred to by date as were the other discograms referenced in his report.) The CAT scan of March 18, 2008 showed abnormal morphology of the disc at L4-L5. The discogram of March 18, 2008 indicated abnormal disc morphology at L4-L5 and typical central burning pain with pressure (indicating “concordant” pain).
18. Dr. Tannoury determined that the L5-S1 level needed a fusion. (In this he agreed with Dr. Delamarter.) He concluded however that the L4-L5 was “mildly degenerative” and not the source of pain. He also concluded that the L3-L4 level was normal. He felt that disc replacement at both of the upper levels would be “excessive”.
19. Dr. Tannoury has never performed disc replacement surgery although he has attended conferences concerning it, including at least one in which Dr. Delamarter was a presenter. Dr. Tannoury performs a form of minimally invasive, interior fusion surgery which he recommended to the Claimant.
20. Counsel for the Claimant expended 128.1 hours of work in representation of the Claimant in this claim and incurred costs in the amount of $1,314.55.
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CONCLUSIONS OF LAW:
1. In Worker’s Compensation cases the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963).
2. When choosing between conflicting medical opinions, the Department has looked at several factors: (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. 37-03 WC (Sept. 17, 2003).
3. Applying these criteria to the competing medical opinions of Dr. Tannoury and Dr. Delamarter, it is clear that Dr. Delamarter is the more experienced of the two. He has a longer history of practice, and a wider breadth of practice than that of Dr. Tannoury. Dr. Delamarter is experienced in both fusion surgery and disc replacement, whereas Dr. Tannoury has not performed disc replacement surgery and has no direct experience with it. Dr. Delamarter is the treating surgeon for the Claimant while Dr. Tannoury is not. Dr. Tannoury did not have the benefit of the March 18, 2008 discogram and CAT scan, although portions of it were read to him during his testimony. Dr. Delamarter did have access to this test report before his testimony.
4. An employer is required to furnish reasonable surgical and hospital services to an injured employee. 21 VSA Sec. 640(a). The employee may select a health care provider upon notice to the employer of his or her dissatisfaction with any provider selected by the employer. 21 VSA Sec. 640(b). The commissioner retains authority to determine issues of reimbursement and medical necessity. e.g. 21 VSA Sec. 640(b) and (d). See also Kobel v. C&S Wholesale Grocers, Opinion No. 28-99 WC (August 2, 1999); Bertrand v. McKernon Group, Opinion No. 20-03 WC (April 16, 2003)(expedited hearing regarding cervical fusion surgery); Morrisseau v. State of Vermont, Opinion No. 19-04 (May 17, 2004)(expedited hearing denying gastric by-pass surgery).
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5. A proposed surgery may be found to be reasonable where it is recommended by the treating physician and where the surgery has an objective basis or foundation. Beaudin v. H.P. Hood, Inc. Opinion No. 39-99 WC (September 3, 1999). Surgical treatment for the Claimant’s spine has been recommended for three levels by both Dr. Rand and Dr. Delamarter. Dr. Rand, Dr. Delamarter and Dr. Tannoury all recommend fusion surgery for the L5-S1 level of the spine. Dr. Delamarter’s recommendation of the hybrid surgery with artificial disc replacement at the L3-L4, and L4-L5 levels has an objective basis and foundation. With significant experience in both types of surgery, his opinion is that the proposed hybrid surgery would have a better result, a quicker recovery period, and a lower cost. Moreover, the argument that this particular type of surgery is beyond the FDA approval, does not mean that the proposed surgery is not reasonable. This same argument was made in the case of State ex rel. Bax Global, Inc v. Indus. Comm., 2007 Ohio 695 (Ohio App. 10th Dist., Feb. 20, 2007). In that case, the court refused to set aside a ruling of the Industrial Commission that the Claimant should have a Charite artificial disc replacement at L3-L4, even though that artificial disc had been approved by the FDA for use at the L4-L5 or L5-S1 levels. The employer argued that the use of an artificial disc at the L3-L4 level was “off-label” and not approved by the FDA. The court approved the Commissioner’s determination that the FDA “neither regulates practice of medicine nor restricts uses to those which have been officially approved.” Id. Page 10, para. no. 37. An “off-label” use of a FDA approved device can be approved where the claimant’s need for the surgery and the propriety of the proposed surgery are shown by competent medical opinions. Id.
6. I conclude that the proposed surgery offered by Dr. Delamarter (a hybrid, fusion and double disc replacement) is a reasonable and necessary surgery for the Claimant and that the defendant is obligated to pay for the reasonable costs associated with it.
7. The Defendant argues in its Proposed Findings of Fact that the Department has “no jurisdiction to order pre-authorization of medical treatment”. (See page 2, Defendant’s Proposed Findings of Fact and Conclusions of Law.) This issue has been ruled on in the case of Bebon v Safety-Kleen/Sedgwick at both the Department and the Superior Court levels (See Bebon v. Safety-Kleen/Sedgwick, State File No. T-19416, Denial of Motion For Summary Judgement dated August 21, 2007 and Bebon v. Safety-Kleen/Sedgwick, CMS, Chittenden Superior Court Docket No. 1286-05, Entry Order dated January 9, 2007.)
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ORDER:
Therefore, based upon the foregoing findings of fact and conclusions of law, the Commissioner determines that:
1. The Claimant’s proposed hybrid surgery with Dr. Delamarter is reasonable medical treatment and should be paid for by the Defendant, if performed;
2. Attorney’s fees of 128.1 hours be awarded to the Claimant at the rate of $90.00 per hour pursuant to the Department’s fee schedule. Costs in the amount of $1,314.55 are also awarded to the Claimant.
Dated at Montpelier, Vermont this 12th day of June 2008.
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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. Sec. 670, 672.

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