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J. C. v Central Vermont Hospital (August 20, 2007)

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J. C. v Central Vermont Hospital (August 20, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
J. C. Opinion No.: 23-07WC
v. By: Jane Dimotsis, Hearing Officer
Codee McDaniel, Law Clerk
Central Vermont Hospital For: Patricia Moutlon Powden
Commissioner
State File No.: C-18210
Hearing held on May 10, 2007
Record Closed on July 20, 2007
APPEARANCES:
Claimant, Pro se
John Valente, Esq., for the Defendant
ISSUES:
1. Whether Claimant’s current medical regime is reasonable and necessary treatment for a work-related injury.
EXHIBITS:
1. Medical Records of Claimant
2. Pretrial disclosures which includes a letter from Dr. Lucy Patti
3. Curriculum Vitae of Dr. Philip Carling
FINDINGS OF FACT:
1. Claimant contracted Hepatitis A when she was approximately 20 years old and made a complete recovery with no residual symptoms.
2. In 1987, Claimant began working as an operating room nurse at Central Vermont Hospital. This was her occupation during all times relevant to the pending action.
3. In December 1989, Claimant alleges that she contracted Hepatitis C, presumably from a needle stick, while working as an operating room nurse at Central Vermont Hospital. There is no documentation of a needle stick in the medical records.
4. After reviewing lab test results of December 1989, Dr. Mark Yorra concluded in his March 27, 1990 report, that Claimant’s symptoms (headaches, body aches, muscle
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fatigue, low back pain, chronic diarrhea, loss of appetite, memory loss, and sleep deprivation) were consistent with acute Hepatitis.
5. Dr. Yorra attributed Claimant’s symptoms to chronic fatigue syndrome related to her “job-acquired Hepatitis infection” on August 7, 1990.
6. However, approximately two months later, Dr. Yorra observed that Claimant was no longer symptomatic of Hepatitis because her liver enzyme levels were normal. He diagnosed Claimant with “residual fatigue syndrome,” and opined that she could return to work on a part time basis.
7. On a referral from Dr. Yorra, Dr. Dieter Gump examined the Claimant on May 14, 1991 and noted a butterfly tattoo on her right shoulder. He speculated that the Claimant could have contracted Hepatitis from a tattoo needle. However, the exact date of when the Claimant acquired the butterfly tattoo is not indicated in the medical records.
8. Dr. Gump placed the Claimant at medical end result on June 11, 1991. Consequently, Dr. Gump added that he was without a medical explanation for why Claimant continued to complain of “undue fatigue” and why she was unable to work eight hours a day.
9. In 1991, Claimant became a patient of Dr. Anthony Komaroff, Brigham and Women’s Hospital. During this time, Dr. Komaroff was conducting a research program on the cause of chronic fatigue immune dysfunction syndrome.
10. Dr. Komaroff reported that Claimant has a history of depression dating back to 1981 which was prior to her Hepatitis episode. He diagnosed Claimant with a “chronic debilitating condition following in the wake of an apparently non-A, non-B, non-C Hepatitis” and added that “she probably had an active depressive disorder at the time of her Hepatitis.” Dr. Komaroff treated Claimant for three years and diagnosed her symptoms as post-infectious fatigue syndrome.
11. On March 8, 1995 Dr. Yorra’s medical opinion was that Claimant did not have the capacity to return to employment as an operating room nurse. His prognosis was that Claimant remained totally disabled from her former occupation and he estimated that she had an 85% whole person impairment rating.
12. Dr. Dorothy Ford, Physical Medicine and Rehabilitation, disagreed with Dr. Yorra’s impairment rating in belief that the rating was “extremely” high. Rather, she opined that an 85% whole person impairment rating was equal to the rating for quadriplegics and greater than the rating for all but the most severe head injuries.
13. On July 11, 1995 Dr. Ford evaluated the Claimant. She based the Claimant’s impairment rating on an endurance test because chronic fatigue syndrome was not addressed by the AMA Guides. She assigned a 40% whole person impairment rating and placed the Claimant at medical end result.
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14. A functional capacity examination of the Claimant was performed by Marge Lavoie Skroski, Green Mountain Industrial Rehabilitation, on June 22, 2005. Ms. Skroski concluded that Claimant had a less than sedentary work capacity.
15. Dr. Christopher Matkovic, Diplomate of American Board of Internal Medicine and Infectious Disease, examined the Claimant on February 28, 2006. From this examination, he concluded that Claimant “truly has ongoing fatigue” but that it was not causally related to the Hepatitis episode that occurred eighteen years ago. Dr. Matkovic rejected any theory of possible causation because he believes that there is no association between Hepatitis and chronic fatigue syndrome. He reasoned that there was no medical evidence to support that Claimant’s symptoms were “chronic” in nature or evidence of a needle stick which could explain the 1989 Hepatitis episode. According to Dr. Matkovic, approximately 95% of needle sticks are associated with Hepatitis B and C; and since neither was detected in Claimant’s medical tests, he was not convinced that Claimant’s acute Hepatitis was even job-related.
16. Dr. Philip C. Carling, Caritas Carney Hospital, specializes in infectious diseases. His March 31, 2007 report also indicated disagreement with Dr. Yorra’s diagnosis of chronic fatigue syndrome. Dr. Carling ruminated that Dr. Yorra failed to rule out other bases for Claimant’s symptomalogy. He concluded that Claimant’s 1989 episode of Hepatitis was not causally related to her employment. Dr. Carling brought to light that there are many different causes of Hepatitis because it is a very general term used to describe inflammation of the liver.
17. On May 10, 2007 Dr. Carling testified that chronic fatigue syndrome was in no way associated with Hepatitis. He explained that the “constellation” of symptoms (low grade fevers, inability to achieve adequate amounts of rest, mental status changes, cognitive problems, and sore throats) associated with chronic fatigue syndrome usually subside within four to six years. Dr. Carling speculated that it is very controversial for symptoms of chronic fatigue syndrome to persist longer than for these periods of time. His testimony also reflected concern that there is no specific treatment for chronic fatigue syndrome; that Dr. Yorra was a general internist at the time he made the chronic fatigue syndrome diagnosis; and that Dr. Yorra failed to rule out other potential explanations for Claimant’s symptoms.
18. Dr. Lucy Patti, Associates in Family Health, is Claimant’s current treating physician. Dr. Patti agreed with Dr. Komaroff’s chronic fatigue syndrome diagnosis and is supervising Claimant’s treatment regime for symptoms of this condition.
19. Claimant has been unemployed since 1990 (seventeen years) and testified that she spends most of her time resting.
20. Claimant’s current treatment regime includes the following medications: Zoloft, Prolosec, Raglan, Transadone, Ambien; with intermittent use of Zocor and Toprol. These medications were all prescribed to treat Claimant’s symptoms of insomnia, digestive problems, depression, short term memory loss, muscular aches and joint pain, and fatigue.
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CONCLUSIONS OF LAW:
1. Ultimately, the burden of proof rests upon the Claimant who must prove all facts essential to the rights asserted in Workers’ Compensation cases. Goodwin v. Fairbanks, Morse and Co., 123 Vt. 161 (1963). The Claimant is also required to establish the character and extent of their injury as well as the causal connection between the injury and the employment by a demonstration of sufficient credible evidence. Egbert v. The Book Press, 144 Vt. 367 (1984).
2. The Claimant has not satisfied her burden of proof because she has not convinced the Department that her symptoms, arguably consistent with chronic fatigue syndrome, are causally related to her 1989 Hepatitis episode or related to her employment. Credible experts, namely Dr. Carling, Dr. Matkovic, and Dr. Gump have successfully cast doubt upon this causal relationship.
3. Dr. Patti and Dr. Komaroff, have diagnosed Claimant’s current symptoms as chronic fatigue disorder related to her 1989 Hepatitis episode while Dr. Carling, Dr. Matkovic, and Dr. Gump disagree with the chronic fatigue diagnosis and deny the causal relationship. Traditionally, when conflicting expert medical opinions arise, the Department applies the following test to determine which expert’s opinion is the most persuasive: 1) the nature of the treatment where a patient-provider relationship has existed; 2) whether the expert had an opportunity to examine all the relevant 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); see also S.S. v. The Book Press, Opinion No. 06-07WC (Feb. 21, 2007). The opinions of Dr. Carling, Dr. Matkovic, and Dr. Gump are the most persuasive. The doctors examined Claimant and her relevant medical records in an effort to determine the cause of her symptoms and the appropriate medical treatment regime for these symptoms; based their opinions on objective support; conducted a thorough examination of the Claimant; and finally, the doctors are all qualified experts in their respective fields.
4. In terms of medical expertise, more weight should be assigned the opinions of Dr. Gump, Dr. Carling, and Dr. Matkovic. Because, at the time Dr. Mark Yorra diagnosed the Claimant with chronic fatigue syndrome, he was a general internist. Therefore, his level of expertise in the field of internal medicine and infectious disease was not comparable to expertise of the other experts. Dr. Carling, further, testified that Dr. Yorra did not follow the standard approach for diagnosing chronic fatigue syndrome because he failed to rule out other possible explanations for Claimant’s symptoms. To believe that Claimant’s current symptoms are in any way associated with the 1989 Hepatitis episode is medically untenable in light of the aforementioned experts’ review of the medical records, their objective diagnoses and their belief that Claimant’s eighteen years of symptomalogy is without a basis in internal or infectious medicine. Additionally, the Hepatitis episode could have been associated with the Claimant’s tattoo and not her employment at the Defendant’s because no needle stick was reported in the medical records.
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5. Therefore, absent a causal connection between Claimant’s symptoms and her 1989 Hepatitis episode, and without evidence the Hepatitis was work-related, there is no basis for holding the Defendant liable for her current medical treatment regime. Establishing the requisite connection requires more than mere possibility, suspicion or surmise. It requires that inferences from the facts asserted must be the most probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941). The most probable hypothesis is that Claimant’s symptoms are not casually related to her employment or episode of Hepatitis.
6. Medical treatment may be unreasonable either because it is not medically necessary or because it is not related to the compensable work injury. See Morrisseau v. State of Vermont, Agency of Transportation, Opinion No. 19-04 WC (May 17, 2004). In the instant case, the Department does not find Claimant’s current symptoms to be work-related.
ORDER:
Based on the foregoing findings of fact and conclusions of law, it is hereby ORDERED that the Defendant is precluded from any further liability for Claimant’s medical treatment regime. The Departments finds that Claimant’s current medical treatment regime is NOT related to her alleged work injury.
Dated at Montpelier, Vermont this 20th day of August 2007.
______________________________________
Patricia Moulton Powden
Commissioner
APPEAL:
Within in 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 (September 24, 2008)

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N. B. v. Verizon (September 24, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
N. B. Opinion No. 24R-08WC
By: George K. Belcher
v. Hearing Officer
Verizon For: Patricia Moulton Powden
Commissioner
State File No. J-13315
APPEARANCES:
Christopher McVeigh, Esq., for the Claimant
J. Christopher Callahan, Esq., for the Defendant
RULING ON CLAIMANT’S MOTION FOR ATTORNEY FEES
The Claimant prevailed in a contested, expedited hearing concerning the reasonableness and necessity of a specific surgery upon his back. Bonnano v. Verizon, Opinion No. 24-08 WC (June 12, 2008). Thereafter the Defendant sought a stay of the decision. That motion was denied on July 30, 2008. Bonnano v. Verizon, Opinion No. 24S-08 WC (July 30, 2008). Thereafter, the Claimant sought attorney’s fees for work in defending the Motion for Stay. The request for attorney’s fees has been vigorously opposed with several rounds of arguments filed by the parties.
The Claimant sought attorney’s fees in the first instance for 9.2 hours in opposing the Motion for Stay.1 As authority for such an award he cited the case of Menard v. Vermont Castings, Opinion No. 17S-00WC (August 24, 2000). In opposing the request for attorney’s fees, the Defendant has made the following arguments. First, the Defendant argues that the Menard case is a “singular ruling” that has not been followed and that contained no real analysis of the rules and law concerning this issue. Second, the Defendant argues that Workers’ Compensation Rule 10.1300 would not justify an award of attorney’s fees because the Motion for Stay was not a proceeding requiring a formal hearing, and there was no showing of misconduct, neglect or undue delay. Finally, the Defendant argues that attorney’s fees at this stage of the proceedings can only be decided after the appellate court rules upon the appeal. The Defendant cites Sargent v. Town of Randolph, 2007 VT 56, as authority for this last proposition.
1 Claimant’s counsel ultimately claimed 10.7 hours concerning the work around the issue of the stay and the attorney’s fees. Thus, a portion of the bill related to attorney’s fees being billed for arguing over the attorney’s fees.
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The Sargent case actually supports the Claimant’s position. In that case the Vermont Supreme Court held that the Commissioner was empowered to rule upon attorney’s fees for matters before her, even though her earlier ruling for the Defendant at the administrative level was superceded by a successful de novo appeal. The court gave wide deference to the Commissioner and stated, “Attorney’s fees for the work at the administrative level, [however], should be determined in the first instance, by the Commissioner.” Quoting Jackson v. True Temper, Corp., 156 Vt. 247 (1991). Likewise the court pointed out that the appellate court under Vermont law could not determine a request for attorney’s fees for services rendered at the Department level, citing Coleman v. United Parcel Serv., 155 Vt. 646 (1990). The court stated several times in the Sargent decision that the Commissioner had discretion to award attorney’s fees for work done at the Department level and that great deference was given to her discretion. Nothing in the Sargent case can reasonably be construed to prevent the Commissioner from awarding attorney’s fees in this case pursuant to 21 V.S.A. §678(a), whether an appeal is taken or not.
The Defendant’s second argument is that Workers’ Compensation Rule 10.1300 does not authorize the award. That rule states in part:
Awards to prevailing claimants are discretionary. In most instances, awards will only be considered in proceedings involving formal hearing resolution procedures. In limited instances an award may be made in proceedings not requiring a formal hearing where the claimant is able to demonstrate [unreasonable delay, denial of a claim without reasonable basis, etc.] (emphasis added).
A motion for stay of a contested decision is part of the formal hearing resolution procedure. The granting of a stay will postpone benefits during the appeal and will deny the prevailing party the benefit of the decision. The stay is part of the formal hearing procedure also in the sense that it must be acted upon by the Commissioner. 21 V.S.A. §675(b). Thus, it logically follows that issues concerning attorney’s fees arising from such a motion should be decided by the Commissioner as part of the formal hearing process.
Finally, the case of Menard v. Vermont Castings, supra, was not a “singular ruling.” The heart of the ruling was followed in G. H. v. Ethan Allen, Opinion No. 30-06WC (September 21, 2006) (allowing attorney fees for post-judgment work where the work was “integral to the main issues decided at the hearing”) and Gisele Roberts v. Vermont State Hospital, Opinion No. 36R-07WC (March 31, 2008).
I find that 9.2 hours of attorney time surrounding the issue of the stay is reasonable. The Claimant may recover from the Defendant for 9.2 hours of attorney time calculated at the rate of $90.00 per hour. The additional time billed by the Claimant’s attorney is not awarded.
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ORDER:
The award granted to the Claimant shall include $828.00 for attorney’s fees associated with the Motion for Stay.
Dated at Montpelier, Vermont this 4th day of September 2008.
____________________________
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 (July 30, 2008)

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N. B. v. Verizon (July 30, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
N. B. Opinion No. 24S-08WC
By: George K. Belcher
v. Hearing Officer
Verizon For: Patricia Moutlon Powden
Commissioner
State File No. J-13315
APPEARANCES:
Christopher McVeigh, Esq., for the Claimant
J. Christopher Callahan, Esq., for the Defendant
RULING ON DEFENDANT’S MOTION FOR STAY
Defendant moves the Department to grant a stay pursuant to 21 V.S.A. Section 675 concerning the Department’s decision dated June 12, 2008. The Claimant opposes the requested stay.
The Defendant seeks a stay arguing that the four criteria set forth in In re Insurance Services Offices, Inc., 148 Vt. 634, 635 (1987) are met. Those criteria are: (1) that the Defendant has a strong likelihood of success on appeal; (2) that there will be irreparable injury to the Defendant if the stay is not granted; (3) that a stay will not substantially harm the other party; and (4) that the stay will serve the best interests of the public. Id.
The Commissioner has ruled that the granting of a stay should be the exception, not the rule. Bodwell v. Webster Corporation, Opinion No. 62S-96 WC (Dec. 10, 1996). A simple factual dispute is not a sufficient basis upon which to grant a stay. Id. The issue in this case is the reasonableness and necessity of a particular operation on the Claimant’s back. The Defendant argues that it will prevail on appeal because a single disc replacement would be sufficient treatment rather than the multi-level disc surgery, which was approved in the decision. Dr. Delamarter’s testimony at the hearing was quite clear and persuasive that the Claimant has multi-level disc problems and that a comprehensive, multi-disc replacement surgery is the better approach. While the defendant may disagree with the evidence or the conclusion of the Department, this does not equate to a strong likelihood of success on appeal.
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Next, the Defendant argues that the Commissioner’s decision is advisory, premature, and unripe. In appropriate cases, the Department has made rulings concerning the reasonableness of proposed treatments. See Conclusion of Law No. 4 in the basic decision. Such decisions are not precluded as being advisory or “unripe” under the Workers’ Compensation Statute, particularly where an employer has refused in advance to pay for a treatment which is recommended by a treating physician. See Bebon v. Safety-Kleen/Sedgwick, State File No. T-19416, Denial of Motion for Summary Judgment, August 21, 2007 and Bebon v. Safety-Kleen/Sedgwick, CMS, Chittenden Superior Court Docket No. 1286-05, Entry Order Dated January 9, 2007. Since this argument has not prevailed previously at either the Department or the Superior Court level, the likelihood of success is weak rather than strong.
The Defendant argues that it will suffer irreparable harm if the stay is not granted since it will have been denied its ability to contest the medical bills generated by the surgery. This argument is spurious since the issues involved in this case were the reasonableness and necessity of the surgery. The charges for the surgery were not litigated and have not been acted upon. Thus, if there is an issue concerning unreasonable charges for the surgery, those issues may still be litigated. On the other hand, irreparable harm would likely arise to the Claimant if the stay were granted. The Claimant was scheduled to have the proposed surgery in January of 2008. The surgery did not happen at that time in order for the Defendant’s medical expert to examine and evaluate the Claimant. The Claimant participated in this exercise, but disagreed with the conclusion of this expert. The matter was then submitted for decision to the Department. We are now some seven months after the Claimant would have had his surgery but for the consideration of the Defendant’s evidence and arguments. The Claimant has pursued conservative treatment for back pain for many years before pursuing this surgery. A stay would cause irreparable harm to the Claimant in the form of a delay of a reasonable and necessary treatment.
Finally, the Defendant argues that the public interest requires that “the judiciary heed its own rules regarding the impropriety of advisory opinions” and that employers should not be “forced to pay for surgery that, while recommended, never in fact occurs.” The order in this case only ordered the Defendant to pay for the surgery if it were performed. The ability of employers and claimants to determine the necessity and reasonableness of a particular treatment in an appropriate case is consistent with the requirement that Workers’ Compensation process and procedure be “as summary and simple as reasonably may be,” particularly where an Employer is refusing to pay for a procedure in advance of it being done. 21 V.S.A. 602. A stay of the decision in this case would not be in the public interest.
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ORDER:
(1) The Motion for Stay is DENIED.
Dated at Montpelier, Vermont this 30th day of July 2008.
____________________________
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.

J. B. v. Two Go Dry Cleaning, Inc. and Robert Mitiguy dba Discount Medical Supply

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J. B. v. Two Go Dry Cleaning, Inc. and Robert Mitiguy dba Discount Medical Supply
(January 24, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
J. B. Opinion No. 02-08WC
v. Phyllis Phillips, Esq.
Contract Hearing Officer
Two Go Dry Cleaning, Inc.
and Robert Mitiguy d/b/a Patricia Moulton Powden
Discount Medical Supplies Commissioner
State File No. X-03039
OPINION AND ORDER
Hearing held in Montpelier on October 22, 2007.
APPEARANCES:
Craig Jarvis, Esq. for Claimant
Bonnie Shappy, Esq. for Defendant Two-Go Dry Cleaning, Inc.
Robert Mitiguy, pro se
ISSUES PRESENTED:
1. Whether Claimant’s left arm neuropathies are work-related;
2. If so, to what workers’ compensation benefits is Claimant entitled, and which employer is obligated to pay them.
EXHIBITS:
Joint Exhibits:
Joint Exhibit I: Medical Records
Claimant’s Exhibits:
Claimant’s Exhibit 1: Preservation deposition of Dr. Adam Shafritz, October 2, 2007
Claimant’s Exhibit 2: Photographs
Claimant’s Exhibit 3: Medical bills and billing summary
Defendant Two Go Dry Cleaning, Inc.’s Exhibits:
Defendant’s Exhibit A: Wage statement
Defendant’s Exhibit B: Curriculum vitae of Dr. John Peterson
Defendant’s Exhibit C: Curriculum vitae of Dr. Richard Levy
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Defendant’s Exhibit D: Curriculum vitae of Dr. John Johansson
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CLAIM:
Temporary total disability benefits under 21 V.S.A. §642
Permanent partial disability benefits under 21 V.S.A. §648
Medical benefits under 21 V.S.A. §640(a)
Attorney’s fees, costs and interest under 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. Claimant began working for Defendant Two Go Dry Cleaning, Inc. (hereinafter “Two Go”) on October 28, 2005. At all times relevant to these proceedings Two Go was an employer within the meaning of the Vermont Workers’ Compensation Act.
2. Claimant’s job responsibilities involved operating the machines that pressed shirts. There were three machines – one to press collars and cuffs, one for the bodice of the shirt, and one for sleeves. Claimant had to position each shirt on the proper machine, push and hold the appropriate buttons while the machine pressed, then remove the shirt and either position it on the next machine or button it onto a hanger. Although the machines did the actual ironing, moving the shirts through the pressing process required a significant amount of repetitive upper extremity motion.
3. Claimant testified that she pressed 500 to 600 shirts daily, working 9 hours per day and 5 days per week. However, the wage statement submitted by Two Go contradicts this testimony. It documents that Claimant worked between 35 and 41 hours per week during the term of her employment there.
4. Within 2 weeks after starting this job, Claimant began experiencing troublesome symptoms in her neck and arms, including tenderness in her neck, radiating pain into her arms (left worse than right) and occasional numbness in her hands and fingers. Claimant sought medical treatment for these symptoms with Dr. Paul Reiss, a general practitioner, on November 27, 2005. Subsequently, on December 5, 2005 Claimant began treating with Dr. Stephanie Bellomo, her primary care provider. Dr. Bellomo diagnosed muscle strains and probable upper extremity and forearm tendonitis (left greater than right), with a “suggestion” of cubital tunnel syndrome.
5. Cubital tunnel syndrome is a condition involving inflammation or impingement of the ulnar nerve at the point where it crosses the elbow. Symptoms include numbness and tingling along the outer aspect of the hand and in the small and ring fingers. In its early stages, cubital tunnel syndrome can be reversible, such that symptoms resolve with conservative management. Once the condition becomes chronic, however, surgery is necessary to relieve the nerve compression.
6. Dr. Bellomo advised Claimant to speak to her employer about possible temporary job reassignment, but no such position was available. Claimant stopped working for Two Go on or about December 5, 2005. In all, therefore, Claimant worked for Two Go for approximately 5 weeks.
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7. Dr. Bellomo next examined Claimant on December 27, 2005. Claimant reported some dysthesias in her hands at night, though less than previously. Dr. Bellomo diagnosed multiple muscle strains. She prescribed pain medications and anti-inflammatories, and referred Claimant for physical therapy.
8. Claimant underwent physical therapy from January 6, 2006 until May 10, 2006. At the outset, the physical therapist reported Claimant’s chief complaint to be bilateral elbow pain, left hand numbness and left shoulder pain. As treatment progressed, the therapist reported decreased pain in the elbows and fewer episodes of numbness in the hands. By the time physical therapy concluded, the therapist reported that Claimant estimated her neck and shoulder pain to be “80% better,” and her elbows “90% better.” The therapist also reported that Claimant “[hasn’t] had any hand tingling/numbness for quite a while.” In her formal hearing testimony, Claimant maintained that the physical therapist misunderstood Claimant’s report of her subjective status. She testified that her elbows were not 90% improved and that the episodes of tingling and numbness in her hand had continued.
9. Dr. Bellomo also reported improvement in Claimant’s symptoms during this time. In January 2006 she noted that Claimant continued to experience troublesome symptoms in her left elbow, with some radiation of pain into her forearm, but that the “tingling and numbness seem to have resolved.” In March 2006 Dr. Bellomo reported that physical therapy was now focused primarily on Claimant’s shoulder pain, and that her arms and elbows were “much better,” with only occasional tingling and numbness. Dr. Bellomo’s assessment at that time was “improved hand/forearm tendonitis” and “chronic shoulder weakness/muscular tightness left shoulder [status post] dry cleaning work.”
10. On April 21, 2006 Claimant was involved in a motor vehicle accident when her car was rear-ended and pushed into the car ahead of her. Claimant treated with Dr. Bellomo on that day. Dr. Bellomo diagnosed muscular strains and spasm in the neck and lower back. There is no evidence that Claimant injured her left shoulder or elbow in any way in the accident.
11. At Defendant Two Go’s referral, Dr. John Johansson, an osteopath, performed an independent medical evaluation on May 1, 2006. Dr. Johansson reported that his physical examination of Claimant’s neck, shoulders, arms, elbows, wrists and hands was completely unremarkable. Specifically, Dr. Johansson found no evidence of nerve compression at the elbow, which would have been a symptom of cubital tunnel syndrome, or at the wrist, which would have indicated carpal tunnel syndrome. Dr. Johansson concluded that Claimant had suffered a bilateral forearm strain that had fully resolved with no residual permanent impairment.
12. On May 7, 2006 Claimant began working for Defendant Robert Mitiguy, doing business as Discount Medical Supplies. At all times relevant to these proceedings Defendant Mitiguy was an employer within the meaning of Vermont’s Workers’ Compensation Act. Defendant Mitiguy did not maintain workers’ compensation insurance coverage in accordance with the Act, however.
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13. Claimant’s job responsibilities for Defendant Mitiguy involved taking telephone orders and entering them on the computer as well as waiting on customers in the store. Business was very slow and Claimant’s workload was very light. In a typical day Claimant would take in about 6 telephone orders. To enter an order into the computer accounting system took only a few keystrokes, such that in total Claimant spent only twenty minutes or so, spread out over the course of the day, doing data entry work. As for walk-in customers, there were only 1 or 2 per week. With such a light workload, Claimant was free to move about the store as she pleased, to change positions at will and to take frequent breaks.
14. On May 31, 2006 Claimant returned to see Dr. Bellomo. The office note for that visit reflects that it having been 6 months since Claimant had stopped working for Two Go, she believed it was time to assess the extent of her permanent impairment for workers’ compensation purposes. Interestingly, there is no mention in Dr. Bellomo’s note of Dr. Johansson’s IME, which ostensibly had been conducted for exactly that purpose. Claimant reported that she had stopped physical therapy when she started her new job working for Defendant Mitiguy, and that since then she was experiencing tightness in her shoulder again as well as increasing pain symptoms. She reported that using her left arm bothered her “to about 60-80% of the time” and that the tingling in her hands had returned “on and off.” Because Dr. Bellomo did not do formal permanency evaluations, she suggested that Claimant contact her workers’ compensation insurance adjuster to discuss how best to proceed.
15. At Claimant’s request, Defendant Two Go scheduled a “second opinion IME” with Dr. John Peterson, an osteopath, on June 14, 2006. Dr. Peterson reported that Claimant’s physical exam was troublesome in that she exhibited signs of symptom magnification, including vocalizations, bracing and inconsistent sensory findings. In addition, Dr. Peterson reported that Claimant had not been truthful when questioned about her prior medical history. Specifically, Claimant denied having been involved in any prior motor vehicle accidents despite having been treated for injuries suffered in a rear-end collision barely a month before. Claimant also denied any prior history of similar orthopedic complaints, when actually Dr. Peterson’s review of Dr. Bellomo’s medical records revealed that Claimant had treated numerous times for a variety of musculoskeletal problems, including right arm and elbow pain and chronic neck, upper back and shoulder pain. Dr. Peterson found Claimant’s lack of candor “quite disturbing,” and concluded that it “raise[d] serious questions about the veracity of [Claimant’s] ongoing complaints as well as her physical presentation.”
16. Dr. Peterson diagnosed Claimant with “multiple somatic complaints” from her injury at Two Go. He remarked that in his twenty-two years of practice he could not recall a case in which overuse complaints such as those Claimant reported while working at Two Go had not resolved completely some six months after stopping work, particularly after months of physical therapy as well. With that in mind, Dr. Peterson concluded that Claimant had reached an end medical result from her injury at Two Go and had no permanent impairment.
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17. On July 31, 2006 Claimant returned to Dr. Bellomo, complaining of weakness and discomfort with use of her left hand, swelling and prickling and numbness in her ring and small fingers “pretty much chronically at this time.” Claimant reported that the pain was accentuated if she placed her elbow on her desk while working. Such a position likely would compress the ulnar nerve and thereby elicit pain in a patient with cubital tunnel syndrome. Claimant also complained of shoulder pain radiating from her neck. Dr. Bellomo questioned whether her symptoms might be cervical in origin and therefore referred her for a cervical spine MRI.
18. Claimant underwent a cervical spine MRI on August 9, 2006 and subsequently was evaluated by Dr. Rayden Cody. Dr. Cody determined that Claimant’s symptoms probably did not originate in her neck but rather most likely represented cubital tunnel syndrome.
19. Claimant’s employment for Defendant Mitiguy terminated in early September 2006 for performance reasons unrelated to any claimed medical condition or injury.
20. In October 2006 Claimant underwent an EMG/nerve conduction study which confirmed the diagnosis of left cubital tunnel syndrome of mild to moderate severity. Such electrodiagnostic studies are conclusive – they cannot be faked or manipulated in any way. The study also confirmed that Claimant suffered from borderline to mild left carpal tunnel syndrome.
21. On October 25, 2006 Dr. Adam Shafritz, an orthopedic surgeon, examined Claimant. Dr. Shafritz confirmed the diagnosis of left cubital tunnel syndrome. Because Claimant had ongoing symptoms despite conservative management, Dr. Shafritz recommended surgery.
22. Dr. Shafritz also confirmed the diagnosis of borderline to mild left carpal tunnel syndrome. Dr. Shafritz recommended that this condition be surgically addressed at the same time as the cubital tunnel syndrome, but more as a matter of surgical economy than because of troubling symptoms.
23. At some point in October or November 2006 Claimant worked briefly at a data entry job for The Medical Store. When questioned under oath at the formal hearing about this employment, Claimant first testified that she did not recall working for this employer. After further questioning, Claimant admitted that she had worked at The Medical Store and that her employment there had been the subject of some serious legal difficulties for her. These difficulties were unrelated to the medical condition at issue in this claim. It does not appear, furthermore, that Claimant’s employment at The Medical Store caused or contributed in any relevant way to her cubital tunnel syndrome.
24. Following her employment at The Medical Store, which lasted for only 2 or 3 weeks, Claimant worked at a temporary data entry position for Vermont Central Vacuum in December 2006.
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25. Claimant underwent the surgery recommended by Dr. Shafritz on January 3, 2007 following which she reported complete resolution of her left elbow symptoms as well as the paresthesias in her left hand and fingers.
26. Following the January 3, 2007 surgery Claimant underwent physical therapy until April 10, 2007. She has not treated since that time. Dr. Shafritz testified that Claimant would have been totally disabled from working following the surgery for approximately 3 months, or until April 2007.
27. Dr. Shafritz determined that Claimant had reached an end medical result for her condition by August 3, 2007. He has not yet rated the extent of Claimant’s permanent impairment, if any.
28. Defendant Two Go’s workers’ compensation insurance carrier accepted Claimant’s initial injury claim – reported as bilateral arm pain occurring on November 28, 2005 – and paid temporary disability benefits beginning on November 29, 2005 and continuing presumably until Claimant began working for Defendant Mitiguy. Based on Dr. Peterson’s IME report, Defendant Two Go denied responsibility for any further workers’ compensation benefits when Claimant resumed treatment with Dr. Bellomo in July 2006.
Causation
29. Cubital tunnel syndrome is believed to be multifactorial in origin, with no one definitive cause in most cases. Repetitive use has not been proven conclusively to cause cubital tunnel syndrome, although it may be a factor in one who is genetically predisposed, particularly if the repetitive use involves back-and-forth elbow motions. Repetitive keyboarding has not been proven to cause or aggravate cubital tunnel syndrome, according to the most recent scientific studies.
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30. All of the doctors who treated or evaluated Claimant have rendered opinions as to both diagnosis and causation. These can be summarized as follows:
(a) Dr. Bellomo has opined that Claimant’s work at Two Go “was the original cause of her painful muscle strains and tendonitis,” and that these symptoms ultimately progressed to include forearm pain, swelling, hand tingling and weakness.
(b) Dr. Johansson believed that Claimant suffered a forearm strain causally related to her employment at Two Go that had resolved by the time of his IME in May 2006. Dr. Johansson concurred in the ultimate diagnosis of cubital tunnel syndrome as of October 2006, but opined that Claimant exhibited no signs of such injury in May. Therefore, Dr. Johansson concluded that Claimant must have developed cubital tunnel syndrome at some point during the intervening months. Dr. Johansson hypothesized that Claimant’s work for Defendant Mitiguy may have caused the syndrome to develop, but when advised as to the minimal amount of data entry work Claimant did during this employment, he testified that such a causal relationship was “much less likely.”
(c) Like Dr. Johansson, Dr. Peterson found no evidence of cubital tunnel syndrome as of his IME in June 2006. Dr. Peterson diagnosed multiple somatic complaints causally related to Claimant’s employment at Two Go but all of which Dr. Peterson believed should have long since resolved. Dr. Peterson agreed that the work Claimant did at Two Go involved the type of repetitive motion that could cause or aggravate cubital tunnel syndrome, but as noted above, maintained that Claimant did not have cubital tunnel syndrome as of June 2006. Dr. Peterson also agreed that the minimal amount of data entry work Claimant did while employed by Defendant Mitiguy probably would not cause or contribute to her injury.
(d) Dr. Cody diagnosed Claimant with cubital tunnel syndrome in September 2006. As for causation, Dr. Cody opined that Claimant’s symptoms were “most likely directly related to the activity she was doing at dry cleaning if what she tells me is the correct scenario.” Notably in this regard, however, Dr. Cody’s report states that Claimant advised her symptoms first arose “during three months of working at a dry cleaning business.” In actuality Claimant’s employment at Two Go lasted only 5 weeks.
(e) Dr. Shafritz confirmed the diagnosis of cubital tunnel syndrome in October 2006. Dr. Shafritz believes that Claimant probably was predisposed genetically to developing cubital tunnel syndrome and that the condition probably was exacerbated and “brought to light” while working at Two Go. Dr. Shafritz testified that he believed this was the case notwithstanding that Claimant may not have worked at Two Go for as many hours per day or as many weeks in total as she led him to believe.
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(f) Last, Dr. Richard Levy, a neurologist, conducted an IME on February 26, 2007 and concluded that Claimant suffered from a “generalized overuse syndrome of the left upper extremity resulting in epicondylitis and probable left cubital tunnel syndrome.” Dr. Levy agreed with Dr. Shafritz’ opinion that Claimant probably had a genetic predisposition to upper extremity complaints, but concluded that it was impossible to state to the required degree of medical certainty which job or life activities might have caused or aggravated her cubital tunnel syndrome. As with Dr. Peterson, Dr. Levy testified that Claimant’s work at Two Go involved the type of repetitive motion that could cause or aggravate cubital tunnel syndrome in one predisposed to it. Dr. Levy also testified that the limited keyboarding work Claimant did for Defendant Mitiguy was less likely to be a causative factor than the dry cleaning work she did at Two Go.
31. All of the doctors’ opinions as to causation suffer from marked inconsistencies in Claimant’s reporting of important details as to the duration of her employment for Two Go, the nature of her employment duties both there and while working for Defendant Mitiguy and the progression of her symptoms. For example, Claimant reported to various medical providers that she had worked at Two Go for 3 months, when in fact her employment there lasted for only 5 weeks. She repeatedly reported that she worked 9 hours a day, 5 days a week while employed there, when actually most weeks she worked less than forty hours. She failed to mention either her relevant prior medical history or her prior motor vehicle accident even when asked directly by both Dr. Johansson and Dr. Peterson. She led both Dr. Shafritz and Dr. Levy to believe that her work for Defendant Mitiguy involved a significant amount of data entry when in fact it was minimal.1
CONCLUSIONS OF LAW:
Causation
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).
1 Claimant also lied under oath about her employment at The Medical Store. Although not directly relevant to the causation issue, Claimant’s lack of truthfulness in this regard demonstrated her willingness to play fast and loose with the facts in order to suit her own purposes. As a result, one cannot help but question the veracity of both the information she gave to her medical providers and her testimony at formal hearing.
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2. At issue in the current claim is whether Claimant has sustained her burden of proof as to the causal relationship between her work for Two Go and her cubital tunnel syndrome. Claimant argues that her employment at Two Go caused the symptoms that ultimately led to the definitive diagnosis of cubital tunnel syndrome in October 2006. Two Go argues that whatever injury Claimant sustained while working there had fully resolved by June 2006, and that the chain of causation was broken thereafter.
3. Where the causal connection between an accident and an injury is obscure, and a lay person would have no well-grounded opinion as to causation, expert medical testimony is necessary. Lapan v. Berno’s, Inc., 137 Vt. 393 (1979).
4. When considering conflicting expert medical opinions, the Commissioner traditionally uses a five-part test to determine which is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
5. As noted above, to the extent that all of the medical providers who treated or evaluated Claimant assumed her to be an accurate and honest historian, all of their opinions necessarily must suffer from the fact that she was no such thing. Notwithstanding Claimant’s lack of truthfulness, however, certain facts do stand out and are supported by credible evidence:
(a) The results of the October 2006 electrodiagnostic studies cannot be faked or manipulated. As of that date, therefore, Claimant suffered from documented, verifiable cubital tunnel syndrome;
(b) Cubital tunnel syndrome is caused or exacerbated by activities involving repetitive motion at the elbow, particularly in one who is genetically predisposed to developing compressive neuropathies;
(c) Repetitively positioning shirts on pressing machines and then buttoning them onto hangers involves the type of repetitive elbow motions that can cause cubital tunnel syndrome;
(d) Minimal data entry work such as that Claimant performed while working for Defendant Mitiguy is unlikely to cause or exacerbate cubital tunnel syndrome.
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6. It is important to highlight these facts, first because they bear directly on the causation issue, second because they are unaffected by Claimant’s lack of truthfulness, and third because all of the medical experts agreed as to their accuracy. In fact, upon close examination the expert opinions are not altogether contradictory. They differ only as to the degree of medical certainty to which the causation issue can be resolved. Drs. Johansson, Peterson and Levy all point to Claimant’s employment at Two Go as a possible cause of her condition, but are unwilling to state that it is a probable cause. Drs. Bellomo and Shafritz believe the evidence is sufficient to do so.
7. Although it is a close question, I conclude that Dr. Shafritz’ opinion is the most persuasive. He was Claimant’s treating surgeon and he is well skilled in evaluating and treating upper extremity neuropathies. When confronted with the inaccuracies in Claimant’s description of her job duties at Two Go he explained credibly why they did not alter his opinion as to causation. His analysis was clear and concise. As compared with the other experts, Dr. Shafritz provided the most credible explanation for the progression of Claimant’s condition and its relationship to her employment at Two Go.
Aggravation
8. Defendant Two Go argues that even if Claimant reported symptoms consistent with cubital tunnel syndrome causally related to her employment there, her condition had stabilized by May 2006. It contends that the further progression of her injury must have been causally related to her employment for Defendant Mitiguy.
9. Two Go is correct that if the medical evidence establishes that Claimant’s work for Defendant Mitiguy “aggravated, accelerated or combined with a preexisting impairment or injury” to produce a disability greater than what otherwise would have occurred, Defendant Mitiguy would become solely responsible for her current condition. Farris v. Bryant Grinder, 177 Vt. 456, 458 (2005), citing Pacher v. Fairdale Farms, 166 Vt. 626, 627 (1997). In order to determine if such an aggravation has occurred, the Department historically has used a five-part test: (1) whether a subsequent incident or work condition destabilized a previously stable condition; (2) whether the claimant had stopped treating medically; (3) whether the claimant had successfully returned to work; (4) whether the claimant had reached an end medical result; and (5) whether the subsequent work contributed independently to the final disability. Trask v. Richburg Buliders, Opinion No. 51-98WC (August 25, 1998).
10. Applied to the facts of this claim, the key factor is the fifth one. Essentially, it embodies the concept that, just as in the case of an initial injury, to establish an aggravation requires medical evidence causally connecting the claimant’s work with his or her disability. That evidence is lacking here. Although all of the medical experts initially opined that significant data entry work might cause or aggravate cubital tunnel syndrome, all conceded on cross-examination that the work Claimant did for Defendant Mitiguy was so minimal as to have been unlikely to do so.
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11. We are left, therefore, with a chain of causation that began with Claimant’s employment for Two Go, resulting in symptoms that abated with treatment but never fully resolved, and then recurred and worsened. Two Go is responsible for whatever workers’ compensation benefits are proven to be owed.
Benefits
12. Claimant is entitled to temporary total disability benefits from the date of her surgery, January 3, 2007, until April 10, 2007, when her physical therapy concluded and she stopped treatment. Claimant also is entitled to payment of all medical bills associated with treatment of her cubital tunnel syndrome.
13. Claimant is entitled to permanency benefits related to her cubital tunnel syndrome if any ratable impairment is found. Claimant did not establish to the requisite degree of medical certainty that her work at either Two Go or for Defendant Mitiguy caused her left carpal tunnel syndrome, and therefore she is not entitled to permanency benefits related to that condition.
14. Under 21 V.S.A. §664, an award of interest is mandatory from the date on which the employer’s obligation to pay compensation began. Claimant is entitled to interest on the temporary total disability benefits awarded from January 3, 2007 until April 10, 2007.
15. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $2,692.81 and attorney’s fees totaling $4,644.00. An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded. As for attorney’s fees, these lie within the Commissioner’s discretion. I find they are appropriate here, and therefore these are awarded as well.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant Two Go is ORDERED to pay:
1. Reasonably necessary medical and hospital benefits causally related to treatment of Claimant’s cubital tunnel syndrome;
2. Temporary total disability benefits from January 3, 2007 until April 10, 2007, plus interest at the statutory rate;
3. Permanency benefits causally related to Claimant’s cubital tunnel syndrome, in an amount to be determined based on the extent of her ratable impairment, if any;
4. Costs of $2,692.81 and attorney’s fees of $4,644.00.
DATED at Montpelier, Vermont this 24th day of January 2008.
__________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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