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

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Kathleen Lackey v. Brattleboro Retreat (April 21, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Kathleen Lackey Opinion No. 15-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Brattleboro Retreat
For: Patricia Moulton Powden
Commissioner
State File No. AA-50459
OPINION AND ORDER
Hearing held in Montpelier, Vermont on January 19, 2010
Record closed on February 3, 2010
APPEARANCES:
John Mabie, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant’s proposed cervical surgery reasonable and necessary treatment causally related to her July 8, 2008 work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Curriculum vitae, Hulda Magnadottir, M.D.
CLAIM:
Medical benefits pursuant to 21 V.S.A. §640
Costs and attorney fees pursuant to 21 V.S.A. §678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
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3. Claimant worked as a charge nurse at Defendant’s in-patient mental health treatment facility. On July 8, 2008 she was responding to an emergency situation involving a patient who had tried to hang herself. The patient collapsed while Claimant was escorting her back to her room. As Claimant eased the patient to the floor, she felt pain both in her lower back and across her shoulder blades.
4. Claimant had a prior history of occasional low back pain, and over the course of the ensuing weeks her low back pain resolved back to its pre-injury baseline. Claimant’s mid- and upper back pain did not resolve, however. She experienced persistent pain, stiffness and significantly reduced range of motion in her neck, with numbness and tingling radiating down both arms and into her hands and fingers.
5. Claimant’s symptoms failed to respond to conservative therapy. An MRI of her cervical spine revealed degenerative changes at multiple levels, most notably C5-6 and C6-7. In October 2008 she consulted with Dr. McLellan, an occupational medicine specialist. Dr. McLellan suggested a cervical epidural steroid injection, but Claimant was reluctant to proceed. Instead, she sought a referral to a neurosurgeon, Dr. Magnadottir, for evaluation of possible surgical options.
6. Dr. Magnadottir first evaluated Claimant in February 2009. Her office note reflects that Claimant was complaining of pain “not so much in the neck itself” but rather in her shoulders and mid-back, radiating down both arms and into her fingers bilaterally. Dr. Magnadottir attributed Claimant’s shoulder and thoracic region symptoms to myofascial pain, but felt that Claimant consistently described as well a C6-7 radicular pattern to the pain in her arms, hands and fingers.
7. Given the radicular nature of Claimant’s upper extremity symptoms, Dr. Magnadottir suggested cervical disc fusion surgery as an appropriate treatment option. She stressed, however, that such a surgery likely would not have a significant impact on the myofascial-type pain Claimant was experiencing in her neck, upper back and shoulders. It might help in that regard, but there could be no guarantees.
8. Dr. Magnadottir acknowledged that it is difficult to predict how positive the surgical outcome will be in situations where a patient’s symptoms are a mixture of both radicular and myofascial pain. Nevertheless, she expressed confidence that the surgery would alleviate the radiating pain and paresthesias in Claimant’s arms, hands and fingers. Dr. Magnadottir testified that the surgery in question is one of the more common ones she performs, that she is very selective in choosing the patients to whom she offers it, and that it would be very unusual for a patient not to derive at least some benefit from it.
9. Dr. Magnadottir has reevaluated Claimant on two occasions since her initial evaluation in February 2009. She continues to believe that Claimant is an appropriate surgical candidate.
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10. Defendant’s medical expert, Dr. Ahn, disagrees. Dr. Ahn, an orthopedic surgeon, conducted an independent medical evaluation in April 2009. Noting that Claimant’s MRI revealed disc degeneration at four levels in her cervical spine, Dr. Ahn predicted that Dr. Magnadottir’s proposed fusion surgery, which would address only two levels, was unlikely to be successful. Dr. Ahn also questioned whether the proposed surgery would meet Claimant’s expectations. According to him, Claimant reported that her neck symptoms were as problematic as her arm symptoms. In Dr. Ahn’s opinion, surgery might help address the latter, but would be ineffective at relieving the former.
11. Both Dr. Magnadottir and Dr. Ahn testified that the cervical epidural steroid injection that Dr. McLellan proposed in October 2008 might be a viable treatment option for Claimant. According to Dr. Magnadottir, injections are not a pre-requisite to surgery, but merely another option for her to consider. In Dr. Ahn’s opinion, such treatments as injections, chronic pain management and/or behavioral therapy pose less of a risk and present a greater likelihood of success than surgery does.
12. Claimant testified credibly at the formal hearing that she understands that the primary purpose of Dr. Magnadottir’s proposed surgery is to address her radicular symptoms, not her myofascial pain. In that regard, her expectations appear to be realistic. Claimant testified that she experiences constant pain in her upper extremities and shooting pains down her arms and into her hands and fingers. Her fingers are consistently numb, and she often drops things while holding them. On a typical day she can engage in mild activity for approximately two and a half hours, after which she starts to lose function in her hands. She experiences frequent muscle spasms in her neck, forearms, hands and fingers. Sometimes her hands freeze up and she cannot use them at all.
13. Claimant expressed hope that Dr. Magnadottir’s proposed surgery will alleviate her symptoms enough so that she can both increase her level of functioning and reduce her reliance on narcotic medications for pain relief. This is a critical consideration for someone in her profession, as for the most part registered nurses are precluded from providing direct patient care if they are taking narcotic medications.
14. In their written reports, both Dr. Magnadottir and Dr. Ahn concluded that Claimant’s current symptoms most likely represent an exacerbation of her underlying degenerative disc disease causally related to her July 2008 work injury. Dr. Magnadottir reaffirmed this opinion in her formal hearing testimony. In his testimony, Dr. Ahn stated that Claimant’s current symptoms were driven by a clearly degenerative condition that was ongoing, and in that sense the proposed surgery was not causally related.
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CONCLUSIONS OF LAW:
1. Vermont’s workers’ compensation statute obligates an employer to pay only for those medical treatments that are determined to be both “reasonable” and causally related to the compensable injury. 21 V.S.A. §640(a); MacAskill v. Kelly Services, Opinion No. 04-09WC (January 30, 2009). The Commissioner has discretion to determine what constitutes “reasonable” medical treatment given the particular circumstances of each case. Id. A treatment can be unreasonable either because it is not medically necessary or because it is not related to the compensable injury. Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January 20, 2010).
2. The treatment dispute at issue here is straightforward. Claimant’s treating physician, Dr. Magnadottir, believes that cervical disc fusion surgery likely will alleviate at least some of Claimant’s most troublesome symptoms, and that therefore it is medically appropriate to proceed. Defendant’s medical expert, Dr. Ahn, believes that disc fusion surgery likely will be unsuccessful, and that therefore it should not be attempted.
3. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
4. Balancing all of these factors, I conclude that Dr. Magnadottir’s opinion is the most persuasive. Dr. Magnadottir credibly described both the anticipated benefits of the proposed disc fusion surgery and its expected limitations. She is well experienced in surgeries of this nature and utilized a thoughtful selection process in determining that Claimant was an appropriate candidate. I accept as truthful her testimony that she would not offer Claimant a surgical option if she were not reasonably confident of a successful outcome.
5. Equally important, Claimant credibly testified that she understood which symptoms the surgery was designed to address, and which ones it likely would not alleviate. Claimant also credibly articulated the impact her current symptoms have had on her ability to function, both personally and professionally. The impact has been significant, and Claimant deserves the opportunity to improve her situation by undergoing the surgery that her treating physician has offered.
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6. Although I am mindful of Dr. Ahn’s misgivings, in the end I am unconvinced by his opinion. Certainly the proposed surgery will not cure all of Claimant’s symptoms, but that does not render it an unreasonable treatment option. Indeed, the same might be said for the treatment options Dr. Ahn identified as well – injections, chronic pain management and/or behavioral therapy. The discretion I wield under the statute is limited to determining whether a treatment is “reasonable” under the circumstances. It does not necessarily extend to mandating which among a variety of reasonable treatment options a claimant might choose.
7. Nor do I accept Dr. Ahn’s testimony that the proposed surgery is causally related to Claimant’s underlying degenerative disc disease rather than to her July 2008 work injury. Both Dr. Ahn and Dr. Magnadottir acknowledged that Claimant’s underlying condition had been exacerbated by her work injury. That work injury precipitated a progression of worsening symptoms, which has led directly to the current surgical treatment recommendation.
8. I conclude, therefore, that Dr. Magnadottir’s proposed cervical disc fusion surgery constitutes reasonable and necessary treatment causally related to Claimant’s July 2008 work injury.
9. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $1,398.08 and attorney fees totaling $8,600.85. An award of costs to a prevailing claimant is mandatory under the statute. Of the costs submitted, however, $1,125.00 represents Dr. Magnadottir’s charge for 1.5 hours of formal hearing testimony, an hourly rate of $750.00. According to Workers’ Compensation Rule 40.110, such charges are limited to $300.00 per hour. The maximum allowable charge for Dr. Magnadottir’s testimony, therefore, is $450.00. After deducting the excess charge, Claimant is awarded $723.08 in allowable costs. As for attorney fees, these lie within the Commissioner’s discretion. I find they are appropriate here, and therefore these are awarded as well.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. All medical costs associated with the proposed cervical disc fusion surgery, including but not limited to hospital and physician charges and reasonable follow-up care;
2. Costs totaling $723.08 and attorney fees totaling $8,600.85.
DATED at Montpelier, Vermont this 21st day of April 2010.
_______________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

M. M. v. State of Vermont, Department of Corrections (May 13, 2008)

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M. M. v. State of Vermont, Department of Corrections (May 13, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
M. M. Opinion No. 20-08WC
By: George K. Belcher
v. Hearing Officer
State of Vermont, For: Patricia Moulton Powden
Department of Corrections Commissioner
State File No. U-11445
Hearing held on February 8, 2008 in Montpelier, Vermont.
Record closed on March 18, 2008.
APPEARANCES:
Heidi Groff, Esq., for the Claimant
Nathaniel K. Seeley, Esq., for the Defendant
EXHIBITS:
Pre-Trial Stipulation dated February 8, 2008
Joint Medical Exhibit: Medical Records of the Claimant
Claimant’s Exhibit A: Chart of Medical Opinions
Claimant’s Exhibit B: Curriculum Vitae of Dr. Mark Bucksbaum
Defendant’s Exhibit 1: Letter from K. Donahue to Mr. Seeley dated January 31, 2008
Defendant’s Exhibit 9: Insurance Claim from Dr. Bucksbaum dated January 25, 2008
ISSUES:
1. What permanent partial disability is the Claimant entitled to as a result of his work-related injury?
2. Is the Claimant entitled to reimbursement for the Functional Capacity Evaluation that was recommended by Dr. Shulman and Dr. Bucksbaum?
3. Is the Claimant entitled to reimbursement for the permanent partial disability evaluation performed by Dr. Bucksbaum (since the Claimant’s treating doctor, Dr. Shulman, does not do PPD evaluations)?
4. Are the Claimant’s chiropractic treatments following Dr. Boucher’s report of November 7, 2006 reasonable and necessary?
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FINDINGS OF FACT:
1. At the time of his injury, the State of Vermont was Claimant’s employer and the Claimant was an employee of the State of Vermont as defined in the Workers’ Compensation Act.
2. The Claimant, Myron Messeck, was born on October 23, 1954. On February 2, 2004, he was working as a corrections officer for the State of Vermont, Department of Corrections. He suffered a workplace injury when an inmate assaulted him. This was a serious assault, which caused injuries to his face, eye socket, and neck.
3. At the time of the assault, the Claimant was moving a prisoner to a lock-down cell when the prisoner struck him with his right arm. The Claimant’s memory of the incident thereafter is poor but he was taken to the Northwestern Medical Center emergency room where he was examined. The examination showed irritated right and left eye, soft tissue swelling, cut and contusion over the right eyebrow. Mr. Messeck complained of double vision (diplopia). A CAT scan was performed which showed a “trace left parietal irregularity, which may be a very tiny SDH [subdural hematoma] versus bony artifact. The CAT scan showed evidence of an internal broken eye socket or sinus cavity. He also had some blurred vision.
4. The Claimant did not return to his job with the Department of Corrections, in large part, because of concerns by medical providers that another head injury would put him at greater risk due to the injuries of the assault.
5. As of the date of the hearing, the Claimant was complaining of neck pain, back pain, headaches, diplopia, impaired lateral vision, impaired memory, impaired concentration and altered speech (speaking in a high-pitched voice). In September of 2007, the Claimant returned to work for the State of Vermont at a Vermont Welcome Center for 32 hours per week.
6. It is not disputed that the Claimant suffered a work-related injury and that his spine, facial nerve, mental functioning, and eyesight were affected by the injury. Causation is not an issue. The issue in the case primarily involves the extent of permanent impairment of the Claimant. On this, the evaluating doctors disagree.
7. Concerning the facial nerve impairment, the doctors did agree that the Claimant’s facial nerve impairment justified a 1% whole person impairment. Concerning the claim that the Claimant’s voice was affected by the injury, there was no expert evidence offered in support of this claim. The other impairments are discussed separately.
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8. The Claimant’s principal medical expert was Dr. Mark Bucksbaum. Dr. Bucksbaum is a medical doctor who is Board Certified by the American Board of Physical Medicine and Rehabilitation, the American Board of Pain Management, and the American Board of Independent Medical Examiners. He is licensed as a medical doctor in the states of Vermont, New York and Maine. See Claimant’s Ex. B. The Defendant’s principal medical expert was Dr. William F. Boucher. Dr. Boucher is a medical doctor who is licensed to practice medicine in Vermont, Maine, and New Hampshire. The bulk of his work is independent medical evaluations but he also maintains a part-time clinical practice. He is board certified in occupational medicine. The Defendant’s psychiatric expert was Dr. Albert M. Druckteinis who is a psychiatrist, medical doctor and juris doctor. He holds medical licenses in Vermont, New Hampshire, Maine, and Florida. He is board certified by the American Board of Psychiatry and Neurology, The American Board of Forensic Psychiatry, and the American Academy of Pain Management. He operates a part-time clinical practice but the bulk of his work is criminal and civil assessments and evaluations. All of the evaluators were equally familiar with the AMA Guides to the Evaluation of Permanent Impairments, 5th edition (hereinafter referred to as “the Guides”). All three experts regularly do evaluations and provide testimony in workers’ compensation cases. None of these three experts were the Claimant’s treating physician. The Claimant’s treating physician, Ned Shulman, MD, does not do permanency ratings.
Visual Impairment
9. The Claimant testified that he had double vision following the injury. He was prescribed prism lenses for his glasses, which appear to have substantially corrected the double vision. Mr. Meesick testified, however, that his left peripheral vision is still blurred and that he has trouble reading in weak light conditions and when the print is small.
10. Dr. Bucksbaum attributed a 10% whole person impairment on account of the Claimant’s vision. He made this assessment based upon a medical record which he interpreted to show an acuity impairment (20/25 right eye; 20/40 left eye; report of Dr. Fazzone dated February 9, 2005, Page 147 of the Joint Medical Exhibit). Dr. Bucksbaum used Table 12-4 of the Guides to calculate a 10% impairment of visual acuity, and Table 12-10 to calculate a ten per cent whole person impairment. (Testimony of Dr. Bucksbaum).1
1 Dr. Bucksbaum’s report of December 8, 2006 indicated that his conclusion as to vision was based on a visual examination of March 16, 2005 of Optimetrics Associates, Inc. That report showed that the corrected vision of the Claimant was 20/13 (right eye) and 20/25 (left eye).
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11. According to Dr. Bucksbaum, even if the Claimant’s visual acuity were normal, the Claimant would be justified in a 10% whole person impairment due to the diplopia, loss of reserve vision capacity and the need for a vision aid device (prism glasses). Under Sec. 12.4b of the Guides, page 298, impairment to vision other than loss of acuity or field of vision (such as double vision) can be given an impairment rating. That section states in part,
If significant factors remain that affect functional vision and that are not accounted for through visual acuity or visual field loss, a further adjustment of the impairment rating of the visual system may be in order. The need for adjustment, however, must be well documented. The adjustment should be limited to an increase in the impairment rating of the visual system (reduction of FVS) by, at most, 15 points.
12. Dr. Bucksbaum concluded that, with the Claimant’s eye examination and his “incompletely controlled diplopia with the use of prism lens, he most closely fits into the entry end of Class 2 of the vision impairment table 12-10”. Joint Medical Exhibit, Page 319.2
13. Dr. Boucher, on the other hand, attributed a 5% whole person impairment for the Claimant’s vision. Dr. Boucher discounted any vision loss due to lack of visual acuity under the Guides because visual acuity is to be measured under the Guides with the “best correction”. See Section 12.2b, Page 282. Dr. Boucher recognized that up to 15 points under the Functional Vision Score can be attributed to diplopia, but he noted that the Claimant’s diplopia was “well rectified with glasses”. His rating of 5% placed the Claimant in the middle of the Class 1 of table 12-10.
14. Dr. Bucksbaum’s use of uncorrected acuity scores does not appear to be consistent with the Guides. His rating 10% whole person impairment without loss of acuity would have required at least a 10 point Functional Vision Score for the diplopia (which would be 10 of the 15 available points).3
Cervical Impairment
15. Dr. Bucksbaum evaluated the Claimant’s neck and determined that he was entitled to 8% whole person impairment based upon Table 15-5 of the Guides. Dr. Bucksbaum did an extensive physical examination of the Claimant and noted that he had asymmetrical loss of range of motion and muscle guarding. The Claimant had a well-documented history of neck pain and headaches following the injury. Dr. Bucksbaum placed the Claimant in the high end of the range of DRE Cervical Category II from Table 15-5 of the Guides because of the neck pain and headaches. He explained that it would be possible to place the Claimant in the low end of this range (5% whole person impairment) and allocate a separate 3% for Occipital Neuralgia. Dr. Bucksbaum felt, however, that it was more efficient to simply place the Claimant at the high end of the range.
2 Dr. Buckbaum continually referred to the prism glasses as “vision enhancements”. The Guides do not support his position.
3 On February 9, 2005, Dr. Fazzone found that the prism lenses improved the vision of the Claimant and that the Claimant “has no, or minimal, double vision.” Page 146 of Joint Medical Exhibit.
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16. Dr. Boucher agreed that the Claimant fit within the same Category II and deserved a rating between 5-8%, but he placed him at 5% because “…the examinee’s cervical condition has a minimal effect on activities of daily living.”
17. The Claimant testified that he never had neck pains or problems before this injury. He now has neck pain, which radiates up into his head and causes headaches. The headaches sometimes become so severe that he develops an upset stomach. Frequently in the medical records, the Claimant’s neck pain and headaches were mentioned as significant obstacles to his ability to work and function.
Lumbar Impairment
18. The Claimant noticed lower back problems during the healing process of the other injuries. He had never had lower back problems before. He notices his lower back has pain when he sits for long periods of time or when he walks on uneven ground.
19. Dr. Bucksbaum examined the Claimant’s lower back. Dr. Bucksbaum’s examination showed abnormal range of motion in the Claimant’s lower back, and an asymmetrical range of motion. See page 313, Joint Medical Exhibit. In addition, he noted pain on palpation. The Claimant had a positive “Jolt test”, pain while walking on his toes, and “postural sway difficulty”. These indicators led Dr. Buckbaum to conclude that the Claimant had chronic mechanical low back pain caused by the injury and that the Claimant was justified in a 5% whole person impairment from Table 15-3 of the Guides for this problem.
20. Dr. Boucher also did an examination of the Claimant’s low back but approached the examination with a “low suspicion” of finding anything. Dr. Boucher measured the Claimant’s range of motion in the lumbar area once, using only one inclinometer instead of three readings using two inclinometers as recommended in the Guides.
21. Dr. Boucher noted that the Claimant’s range of motion was 20 degrees right and left lateral flexion, with normal being 25 degrees. Because the 20% reduction in flexion was equal on both sides, Dr. Boucher’s opinion was that the Claimant’s range of motion was “normal”. Dr. Boucher also noted tenderness in the lower back on palpation. Despite these findings, Dr. Boucher determined that the Claimant’s back condition was “normal” and gave a 0% impairment rating.
22. It was clear from the testimony that Dr. Bucksbaum did a much more thorough examination of the Claimant’s lower back than did Dr. Boucher. Dr. Bucksbaum’s examination was more consistent with the criteria set forth in the Guides.
Mental Condition
23. The Claimant complained of memory problems following the injury. His ability to focus seemed to be less. He had problems sleeping. He was worried that he might leave a store or public place and forget to take his daughter with him, so he always asked that she stay with him in public.
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24. Dr. Bucksbaum diagnosed the Claimant as having Traumatic Head Injury/Post-concussion syndrome. He rated the Claimant as having a whole person impairment of 8% whole person impairment based upon Table 13-6 of the Guides. This table gives a range of whole person impairment from 1% to 14% for impairment related to mental status after evaluating memory, orientation, judgment and problem solving, community affairs, homes and hobbies and personal care. Clearly, Dr. Bucksbaum was rating the Claimant based upon the belief that the Claimant had a subdural hematoma or concussion. See page 319 of Joint Medical Exhibit. Dr. Bucksbaum noted that his assessment of impairment under Chapter 13 was “consistent with a Class II impairment rating under chapter 14; mental and behavioral disorder.” Id. He also emphasized that it was the impairment which was being rated and not the underlying cause, regardless of whether the cause was physiological or emotional.
25. Chapter 13 of the Guides is used to rate impairment of the central and peripheral nervous system. “Chapter 13 provides criteria for evaluating permanent impairment due to documented dysfunction of the brain, cranial nerves, spinal cord, nerve roots, and/or peripheral nerves and muscles.” Page 305 of the Guides.
26. Chapter 14 is used to evaluate the impairment of mental and behavioral disorders. This chapter of the Guides does not include percentage impairments. According to the Guides, “Numerical impairment ratings are not included, however, instructions are given for how to assess an individual’s abilities to perform activities of daily living.” See page 357 of the Guides. “The use of percentages implies a certainty that does not exist.” Page 361 of the Guides.
27. Dr. Drukteinus saw the Claimant for evaluation on February 22, 2005, January 13, 2006, and again on March 30, 2007. Dr. Drukteinus reviewed the medical records of the claimant and he administered various psychological tests. Dr. Drukteinus was doubtful that the Claimant actually suffered a subdural hematoma and was of the opinion that the Claimant did not have a traumatic brain injury or residual post-concussion syndrome. Rather he determined that the Claimant was suffering from anxiety disorder and adjustment disorder with depressed mood. He believed that these conditions were causally related to the injury and that the Claimant was at medical end result.
28. Because the Guides do not use percentages in Chapter 14 assessments, Dr. Drukteinus looked to the Colorado system of rating mental impairments. Under this system of percentage allocation, and, considering that the Claimant’s mental condition was in partial remission, he calculated that the Claimant’s impairment was minimal to mild and that it deserved a rating of 5% whole person impairment. Dr. Drukteinus left open the possibility of an additional award for pain, but felt that the pain question should have been taken into account with the other medical impairment assessments.
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Functional Capacity Examination
29. Dr. Ned Shulman (the primary care physician) recommended to the Department on October 19, 2006 and May 11, 2007 that the Claimant have a Functional Capacity Examination. Pages 257 and 329, Joint Medical Exhibit. Dr. Shulman did not testify in this case as to why he wanted the Claimant to have a functional capacity examination. Before he made these recommendations, Dr. Shulman made a fairly detailed evaluation of the Claimant’s work capacity, including lifting capacity, in a letter dated September 6, 2006. Joint Medical Exhibit, Pages 250-252. The emphasis in his letter was upon his diagnosis of “post traumatic stress disorder”.4 It is unclear in the record why Dr. Shulman felt a functional capacity examination would assist him or the Claimant.
30. Dr. Bucksbaum recommended in his report of December 8, 2006 that the Claimant could benefit from a functional capacity examination. Joint Medical Exhibit, page 320. His recommendation was that an FCE could assist in determining his work tolerances. Dr. Bucksbaum felt that the Claimant’s plan of becoming a commercial truck driver was “likely above his work limits”. Id. Dr. Peyser had determined on August 3, 2006 that, “There is no reason why Mr. Meeseck could not be employed as a truck driver.” Page 243 Joint Medical Exhibit. Dr. Drukteinus came to the same conclusion on April 5, 2007. Page 328, Joint Medical Exhibit. Dr. Todd Faxvog, Chiropractor, also thought commercial driving was feasible, at least for a trial. Page 246, Joint Medical Exhibit.
31. The Commissioner takes judicial notice under Vermont Workers’ Compensation and Occupational Health Rule 7.1800 of the Vocational Rehabilitation forms in the Department’s file. The Claimant was found to be eligible for vocational rehabilitation services on September 8, 2004. On February 28, 2007 Vocational Rehabilitation Counselor, Wayne Sullivan, reported that he and Mr. Meesek had agreed to place the Vocational Rehabilitation file on “suspension” for six months so that the Claimant’s employment status with the State of Vermont could be determined. It appears from the records that the vocational rehabilitation counselor had not requested the FCE, and, in fact, the vocational rehabilitation case was in “suspension” at the time the FCE was performed. See Department File, Wayne Sullivan Voc. Rehab. Report of February 28, 2007. No Individual Written Rehabilitation Plan was ever formulated by the counselor.
32. The Claimant participated in a functional capacity examination on July 20, 2007. He paid the expense of this and would now like this expense ($1,500.00) to be assessed against the employer. The FCE determined that the Claimant had a medium, full-time work capacity. See page 353, Joint Medical Exhibit.
4 This diagnosis was consistently made by Dr. Shulman as late as August, 2007, (Page 362, Joint Medical Exhibit) despite the conclusions by Dr. Drukteinis, Janis M Peyser, PhD, Dr. Steve Sobel, that this diagnosis did not apply to the Claimant. See pages 179, 249, and 327, Joint Medical Exhibit.
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Ongoing Chiropractic Care
33. Dr. Shulman recommended in July of 2005 that the Claimant see a chiropractor. Page 301, Joint Medical Exhibit. The Claimant has regularly seen Dr. Todd Faxvog about every two weeks. During the visits he regularly has a manipulative adjustment and moist heat packs. He also receives a massage after the chiropractic treatment. The Claimant testified that the adjustments and massages help him with coping with his neck and back pain and doing his activities. The chiropractic treatments seemed to help him with his headaches as well. When he must miss an appointment, he finds that it is very difficult to last until the next appointment.
34. Dr. Bucksbaum testified that the chiropractic treatment was palliative and helpful to the Claimant in coping with his pain without medication. His opinion was that this treatment was reasonable. Dr. Shulman originally recommended the chiropractic treatments in July of 2005. His medical notes of May 18, 2006 indicated that Dr. Shulman thought that the Claimant will “most likely need to continue treatment such as chiro indefinitely.” Page 231, Joint Medical Exhibit. On May 22, 2006 Dr. Shulman’s notes state that, “I am aware he continues with Dr. Faxvog on weekly basis for correction and ideal resolution of cephalgia.” Page 232, Joint Medical Exhibit. Neither Dr. Bucksbaum or Dr. Shulman addressed the need for massages as a separate, on-going treatment.
35. Dr. Boucher testified that the chiropractic treatments and massages probably made the Claimant feel better immediately afterward, but that the treatments did not improve function and would not be missed if they were discontinued for several months. In his report at page 271 of the Joint Medical Exhibit, Dr. Boucher stated,
As regards to the examinee’s neck pain, further chiropractic adjustments are not indicated. Studies have shown that manipulative therapies can be helpful in the acute phase of injury, but are not helpful in the chronic situation. In this case, the examinee has no ongoing benefit (i.e. improvement) from current chiropractic adjustments and further adjustments are neither reasonable or necessary.
36. Dr. John Peterson, D.O. did a medical evaluation of the Claimant on October 31, 2005. His report questioned the frequency of the chiropractic treatments but acknowledged that the Claimant seemed to benefit from them and that they might be serving a “palliative” purpose. Page 208, Joint Medical Exhibit.
Costs and Attorneys Fees
37. The Claimant incurred litigation costs in this matter of $1,201.00. This amount excludes Dr. Bucksbaum’s permanency assessment which is dealt with in paragraph 49 and it does not include the $1,500.00 paid for the functional capacity examination. The Claimant has entered a contingent fee agreement with his counsel calling for attorney’s fees of 25% of the gross award.
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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). 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. Under Vermont practice, impairments to various body parts and functions are rated pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment. 21 VSA Sec. 648(b); Workers’ Compensation Rule 11.2210. The application of the Guides in this case is a complex matter which can be confusing at times, even to the experts. The experts in this case agreed on only one of the claims of impairment: the facial nerve impairment.
3. Where the claimant’s injury is obscure, and the layman could have no well-grounded opinion as to its nature or extent, expert testimony is the sole means of laying a foundation for an award for both compensability issues as well as the extent of the award sought. Lapan v. Berno’s Inc., 137 Vt. 393 (1979). The Claimant’s complaint concerning his voice alteration must be denied since no expert testimony was offered to support it.
4. 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).
5. Here Drs. Bucksbaum and Boucher have similar experience, education, and history with the Claimant. Both appear to have examined all the pertinent records.
6. Concerning the vision impairment, I find that Dr. Boucher offered the most clear and thorough analysis of the vision impairment. His rating of a 5% whole person impairment for vision loss was more consistent with the language of the Guides, including the use of corrected vision capability.
7. Concerning the cervical impairment, I find that Dr. Bucksbaum’s analysis was more persuasive since he gave due consideration to the Claimant’s headaches and pain. Dr. Boucher seemed to downplay the continued pain and neck soreness which appears constantly through the medical records and which was never seriously questioned as to its veracity. Dr. Buckbaum’s rating of 8% whole person impairment is more thorough and supported.
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8. Concerning the lumbar impairment, I find that Dr. Bucksbaum’s examination was significantly more thorough than that of Dr. Boucher. The examination provided a basis for Dr. Bucksbaum’s opinion which makes his opinion the more persuasive. His rating of 8% to the lumbar spine is accepted.
9. Concerning the evaluation of mental impairment, I find that Dr. Drukteinus had more information due to his examination of the Claimant at three different times over a longer period of time. Moreover, his diagnosis of adjustment disorder and anxiety disorder was supported by other evaluations and was more credible. I find that the qualifications and experience of Dr. Drukteinus in rating a mental or neurological impairment is superior to that of Dr. Bucksbaum. Dr. Drukteinus convincingly refuted Dr. Bucksbaum’s diagnosis of traumatic brain injury/post concussion disorder. Dr. Drukteinus’ rating of a 5% whole person impairment is the more cogent assessment. The Department has recognized the Colorado system for the purpose of assigning an impairment percentage to mental disorders. See, e.g. Bodell v. Webster Corporation, Opinion No. 62-96WC (October 22, 1996), Sargent v. Town of Randolph Fire Department, Opinion No. 37-02WC (August 22, 2002).
10. The various impairments are combined pursuant to Workers’ Compensation Rules 11.2200, 11.2300, and the Combined Values Chart of the Guides. The vision impairment of 5%, plus mental impairment of 5%, plus nerve impairment of 1% equal 11% whole person impairment, times 405 weeks, to equal 44.55 weeks. The spine impairment is: 8% cervical impairment, plus 5% lumbar impairment, for a total of 13% whole person impairment, times 550 weeks, to equal 71.5 weeks. The total permanent partial impairment award is 116.05 weeks of benefits.
11. The Claimant asks that the expense of Dr. Bucksbaum’s permanency assessment be paid by the Defendant. According to Workers’ Compensation Rule 11.2400,
It shall be the employer’s responsibility to pay for at least one permanency examination and impairment rating from the claimant’s treating physician, notwithstanding its decision to obtain a rating from another medical examiner as well if it so desires. All impairment ratings received by the employer shall be copied to the claimant or [to] his or her attorney. At the commissioner’s discretion, the employer may be ordered to pay for additional permanent impairment evaluations.
12. Since Dr. Shulman did not do permanency evaluations, it made sense for someone with familiarity with the Guides to do such an evaluation. Both Dr. Bucksbaum and Dr. Boucher agreed that a thorough record review and examination of the Claimant would be necessary for an assessment of permanent impairment. The rule’s reference to “treating physician”, should not bar the Claimant from having at least one evaluation paid for by the employer which is independent from the employer’s own expert. The Commissioner has, on occasion, exercised her discretion to order that such evaluations be paid for by the employer. See Sanz v. Collins, Opinion No. 25-05 WC (April 26, 2005). In this case it is appropriate for the employer to pay for Dr. Bucksbaum’s assessment ($2,160.00). The Commissioner approves it, in her discretion, for payment by the Defendant.
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13. The Claimant also asks that the Defendant pay for the functional capacity examination. Although the Claimant’s treating physician recommended that such an examination be done, it was not proven that this was needed for treatment. In fact, it is unclear why it was needed at all. The Claimant had been cleared by most of the evaluators to do the job of truck driver. Although, Dr. Bucksbaum questioned that conclusion, he was evaluating the physical impairment of the Claimant and he was not structuring an employment plan.
14. The Claimant has cited no express authority by which the Defendant can be ordered to pay for a functional capacity examination. Such examinations are often ordered as part of a vocational rehabilitation plan, but in this case the vocational rehabilitation program was “suspended” with the approval of the Claimant.
15. The Commissioner has concern that if Employers are to be charged with the expense of functional capacity examinations, then the necessity for such an examination should be shown as a clear medical purpose or as part of a vocational rehabilitation assessment/plan as contemplated by the statute. 21 VSA Sec. 641. Otherwise, such examinations might become a routine tactic in litigation preparation. In this case, there was no clear medical need for the functional capacity examination. There was no evidence that the vocational rehabilitation counselor asked for this evaluation. The Defendant should not be charged for it. Other facts in other cases might justify such an order, but not here.
16. The Claimant has shown through his own testimony, the testimony of Dr. Bucksbaum, and the report of Dr. Peterson, that the ongoing chiropractic treatments have a beneficial, palliative affect. They benefit the Claimant by relieving his pain, without the need for additional medication. They assist in his maintenance of function. They are recommended by the treating physician, Dr. Shulman. Under prior rulings of the Commissioner, continuing chiropractic care may be ordered when recommended by persuasive medical authority. See Forrest v. Rockingham School District, Opinion No. 30-96 WC (May 16, 1996), but see also Burnah v. Carolina Freight Carriers, Opinion No. 37-98 WC (June 28, 1998). The weight of the evidence in this case is in favor of the compensability of such treatments as a palliative measure.
17. The Claimant seeks costs which are mandatory under 21 VSA Sec. 678. (The costs allowed in this case do not include Dr. Bucksbaum’s permanency assessment since that is being awarded under a different rule and costs do not include the cost of the FCE since that has been determined to be unrelated to this litigation and not recoverable under other provisions.) Recoverable costs are $1,201.00.
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18. An award of interest is mandatory under 21 VSA Sec. 664 from the date on which the employer’s obligation to pay compensation began. The evidence does not reflect the specific amount of the chiropractic bills, nor the amounts paid by the Claimant or his insurer. Likewise the dates upon which permanent partial disability payments have become due is unclear from the record. Under the statute I conclude that the Defendant is obligated to reimburse Claimant for any amounts he paid, along with interest at the statutory rate from the date of payment forward. The defendant is obligated to reimburse any third party payors as well, including interest charges or other late payment penalties assessed by them. To the extent that the Claimant is entitled to permanent partial disability benefits which were due according to this order but which have not yet been paid, the Defendant is obligated to pay interest from the due date to the date of payment.
19. In the discretion of the Commissioner, the prevailing party may be awarded “reasonable” attorney fees. 21 VSA Sec. 678 (a). Rule 10.1000 Vermont Workers’ Compensation and Occupational Health Rules. The Commissioner has discretion as to whether to base an award of attorney fees on either an hourly or contingency basis. Rule 10.1200 Vermont Workers’ Compensation and Occupational Health Rules. The Claimant prevailed in this formal proceeding on four of the seven issues presented (lumbar spine impairment, cervical spine impairment, permanency rating recovery, and chiropractic care). While counsel for the Claimant submitted a copy of the contingency fee agreement, she did not submit any evidence of her itemized time. In past cases, the Commissioner has weighed various factors in making determinations of reasonableness of attorney fees including the difficulty of the issues involved, the results achieved, the time and effort expended and whether the claim for fees is proportional to the efforts of the attorney. See Estate of Lyons v. American Flatbread, Opinion No. 36A-03 WC. Without some evidence as to the time and effort expended, the Commissioner cannot in this case make a reasoned decision as to the reasonableness of attorney fees. Accordingly, the record should remain open for the Claimant to submit such evidence. See Estate of Roland Pion v. Vermont Asbestos Group, Inc. Opinion No. 02R-07 WC.
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ORDER:
Therefore, based upon the foregoing findings of fact and conclusions of law, the Commissioner determines that the Claimant’s claim for workers’ compensation benefits, is approved in part and the Defendant is ORDERED to pay:
1. Permanent Partial Impairment benefits of 11% whole person impairment not related to the spine (vision 5%; facial nerve 1%; mental condition 5%) and spine impairment of 13% whole person impairment (8% cervical and 5% lumbar) for a total of 116.05 weeks of permanent partial disability benefits;
2. Dr. Bucksbaum’s permanency assessment cost of $2,160.00;
3. Litigation costs of $1,201.00;
4. Unpaid chiropractic bills;
5. Interest upon any of the items in paragraphs 1, 2, and 4 at the legal rate from the date the charges were incurred as set forth in paragraph 55 above;
6. Claimant’s attorney may submit to the Department with a copy to the Defendant, within 30 days of the date of this order, an itemized statement of the time expended and the work performed. The Defendant shall have 10 days from the date of receipt to file any objection to the submission. The Commissioner will then act upon the issue of attorney fees.
Dated at Montpelier, Vermont this 13th day of May 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.

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.

Donald Maurice v. Merchants Bank (November 25, 2009)

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

Donald Maurice v. Merchants Bank (November 25, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Donald Maurice Opinion No. 46-09WC
By: Jane Dimotsis, Esq.
v. Hearing Officer
Merchant’s Bank For: Patricia Moulton Powden
Commissioner
State File No. H-14629
OPINION AND ORDER
Written filings completed on September 30, 2009
Record closed on September 30, 2009
APPEARANCES:
Carey Rose, Esq. for Claimant
Keith Kasper, Esq. for Defendant
ISSUES:
Is Claimant entitled to attendant care assistance for 6-8 hours per day as reasonable and necessary medical care pursuant to 21 V.S.A. § 640(a)?
EXHIBITS:
Joint Exhibit A – Relevant Medical Records
Joint Exhibit B – Attendant care notes
Joint Exhibit C – Nurse Case Manager Reports
Joint Exhibit D – Deposition Transcript of Dr. Empting
Joint Exhibit E – Deposition Transcript of Claimant
Joint Exhibit F – Deposition Transcript of Margaret Maurice
Joint Exhibit G – Deposition Transcript of Vaughan Schmutz
Joint Exhibit H – Deposition Transcript of Home Health Aide Nadia
CLAIM:
Medical benefits pursuant to 21 V.S.A. § 640
Reasonable costs and attorney’s fees pursuant to 21 V.S.A. § 678 and 664
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STIPULATED FACTS AS SUBMITTED BY THE PARTIES
1. Claimant began working for Defendant on October 6, 1987. Claimant suffered a compensable work injury to his back on January 5, 1995.
2. On March 24, 2006, Claimant was found to be at end medical result by Dr. Mark Bucksbaum with a 30% whole person impairment for his physical injuries of chronic back and leg pain, foot drop, levator ani spasms (pain, pressure and discomfort in the coccyx region), and L5-S1 lumbar laminectomy.
3. On April 24, 2006, Claimant was found at end medical result by Dr. Mann with a 55% whole person psychological impairment based on major depressive disorder and pain disorder.
4. On June 14, 2006, Defendant accepted Claimant’s claim for permanent total disability.
5. In March of 2007 Claimant began receiving home care assistance with services provided by the Vermont Visiting Nurses Association. A May 2007 home health care assessment by the VNA tallied a potential of 41 hours of home health care needs.
6. In July of 2008, Claimant moved to Atlanta, Georgia to be closer to his daughter. Defendant again provided in-home care assistance for Claimant.
7. In August of 2008, Claimant’s in-home attendant care was increased to 24 hour care seven days a week due to syncope (loss of consciousness) and other unresponsive episodes.
8. On November 14, 2008, a diagnostic evaluation was performed at the Shepherd Center to evaluate Claimant’s needs and independence levels.
9. On December 1, 2008, a diagnostic evaluation was done by an occupational therapist.
10. On January 9, 2009, a neuropsychological evaluation was done at the Shepherd Center.
11. In February 2009, Dr. Larry Empting, Claimant’s primary treating physician and both a neurologist and psychiatrist, issued an opinion that the maintenance of the home care was still necessary.
12. Also in February 2009, Dr. John Lin issued an opinion recommending the discontinuance of in-home care. On March 30, 2009, Defendant, relying on Dr. Lin’s opinion, filed a Form 27 terminating 24 hour attendant care over a graduated two month basis.
13. Claimant did not file an objection to the Form 27, but notified Defendant through counsel of their objection.
14. In April of 2009 the Department rejected the Form 27 and sought an opinion as to an appropriate schedule for the weaning process for the attendant care.
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15. Following clarification from Dr. Lin opining on an even shorter weaning process than that originally proposed by Defendant, Defendant filed another Form 27 on April 16, 2009, terminating attendant care over a one month period of time.
16. Claimant filed no objection to this Form 27, but notified counsel that they were awaiting a home care assessment by Dr. Empting.
17. On April 23, 2009 the Department approved the Form 27.
18. On May 7, 2009, Claimant filed an appeal of the previously approved Form 27.
19. On June 2, 2009, Dr. Empting provided a written assessment of Claimant’s home health care needs stating he needed at least 6 to 8 hours of home care per day and that the care was medically necessary.
20. The Department treated this opinion as equivalent to a Form 6 and scheduled the matter for an informal conference resulting in the current expedited formal hearing.
21. The sole issue for resolution in this matter is :
Is Claimant’s request for attendant care assistance pursuant to Dr. Empting’s suggestion of 6 -8 hours per day reasonable and necessary compensable medical care pursuant to 21 V.S.A. §640(a)?
ADDITIONAL FINDINGS OF FACT:
22. At all times relevant to this case, Claimant was an employee and Defendant was an employer as defined by the Vermont Workers’ Compensation Act.
23. Judicial notice will be taken of all correspondence and forms in Claimant’s file.
24. Claimant has been unable to work since 2003. He was determined permanently totally disabled in 2006.
25. Medical records and testimony establish that Claimant has documented functional limitations which impact his ability to perform his activities of daily living. For example, Claimant has trouble with dressing due to pain, foot drop, limited range of motion with his arms, inability to lift over his head, and poor balance. Claimant has difficulty transferring out of bed to his wheelchair due to pain and weakness and will stay in bed due to lack of assistance. Claimant has difficulty preparing meals due to pain, lack of energy, and an inability to lift heavy items like a pot or milk jug.
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26. Claimant is essentially wheelchair bound. He cannot drive. He cannot safely stand or walk due to leg weakness, foot drop and neurological symptoms, inability to lift above his head and limited range of arm motion. He also has shoulder pain and bilateral wrist pain from the use of his manual wheelchair. He has diminished sensation in both hands which leads to accidents and burns. He has also exhibited impaired judgment which has led to some unsafe activities and accidents.
27. In March of 2007 Defendant began to pay for medically necessary home care services for Claimant based on the recommendations of Dr. Brian Erickson, his pain management specialist and Dr. Steven Mann, his treating psychologist. Both doctors had concerns for Claimant’s safety. They opined that Claimant needed an assisted living environment due to mishaps with medication usage, confusion, inability to care for himself, inadequate nutrition, missing medical appointments and an increased risk of further suicidal behaviors.
28. His home health care needs were assessed by a physical therapist, nurse and social worker in May of 2007, and it was determined that Claimant required 41 hours per week of medically necessary home health nursing and attendant care. The hours listed were to help Claimant dress, bathe, assist him with hygiene, toilet and bathroom use, assist with transfers, eating, medication management and meal preparation. These are separate from transportation needs, shopping and housekeeping functions.
29. Claimant moved to Atlanta in July of 2008 to be closer to his daughter, Margaret and her husband, Vaughn. Claimant stated that he required too much help from his wife of 30 years and they had separated. Thus, he moved closer to his daughter. She and her husband have assisted Claimant with some medication management, transportation, home health services, housekeeping and financial assistance.
30. On August 15, 2008, Achieve Services, Claimant’s home health provider, assessed Claimant’s functional limitations. They documented problems with walking, lifting, self-bathing, and cooking, decreased mobility, and safety issues, and created a service plan that stated Claimant needed 28 hours of home health care per week. Achieve Services’ records from July of 2008 until September of 2009 document that the majority of the services performed for Claimant were for medication use and management, toilet and bathing issues, and encouraging fluid intake and meal preparation.
31. In late August 2008, Claimant began having episodes during which he would lose consciousness. Based on emergency medical needs he was determined to need 24 hour daily home care. Defendant paid for this service until April 27, 2009 based on the recommendations of Dr. Empting and Dr. Lin. Dr. Empting is Claimant’s primary medical provider. He consulted with Dr. Erickson regarding Claimant’s history and medical needs.
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32. Dr. Empting is Director of the Independent Diagnostic Clinic in Atlanta, Georgia and the Director for Prospective Outcome Studies. He is board certified in psychiatry and neurology. He completed two residencies with Johns Hopkins Hospital. He is also a part-time instructor at Johns Hopkins Hospital in neurology and also serves on the Medical Advisory Committee for the Georgia State Board of Workers’ Compensation. He is well published and has done much training for doctors regarding neurological back problems.
33. Dr. Lin works for the Shepherd Center in Georgia. Claimant was referred to Dr Lin, a physiatrist at the Shepherd Center to assess his level of independence in October of 2008. Physiatrists are medical doctors who, in addition to medical school, also complete four additional years of postdoctoral residency training. During this residency training, they spend one year studying fundamental clinical skills and three years specifically on physical medicine and rehabilitation.
34. In November of 2008, another “Comprehensive Diagnostic Evaluation” was done by the Shepherd Center regarding Claimant’s home health needs. The recommendation was for continued 24 hour care unless otherwise determined by a neuropsychological evaluation.
35. In mid-November a registered nurse from Maxim Healthcare assessed Claimant’s home health care needs and noted Claimant had decreased mobility and cognition after his recent hospitalization. She stated “he now required assistance with most transfers and assistance with daily living.”
36. On December 1, 2008, a home evaluation was done by Sara Brockman, Occupational Therapist. She recommended home modifications, a speech evaluation, and no use of the toaster or oven due to Claimant’s distractibility without supervision which would be a safety and fire hazard. She documented Claimant’s history of falls and decreased balance.
37. In January of 2009 a neuropsychological evaluation was done at the Shepard Center, which showed that Claimant had highly functional general intellectual skills but severely impaired problem solving skills, limited bilateral impairment in fine motor speed and dexterity, mild visual perceptual impairment, mildly impaired processing skills, and digressive speech. Claimant’s medication regime was noted as a significant factor in his ability to concentrate. The conclusion was that Claimant had the cognitive capacity necessary to perform most activities of daily living, but that his impaired problem solving and visual and motor impairment inattention impacted his abilities.
38. In February of 2009 Dr. Lin saw Claimant for the second time. Dr. Lin was asked to provide an opinion regarding the continuing need for home care for Claimant. Dr. Lin wrote a prescription for discontinuance of home health care services and, instead, the installation of a Medic Alert system. The note was very brief without much reasoning for the abrupt change.
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39. Upon learning of this, Dr. Empting wrote a letter disagreeing with Dr. Lin’s opinion regarding stopping all home health care finding it risky and unwise. It is Dr. Empting’s responsibility to coordinate home health care as Claimant’s primary physician. Dr. Empting requested home health care continue at the same hours as were in place until he had a chance to visit with Claimant.
40. Dr. Empting reviewed all of Claimant’s history and home health care both in Vermont and Georgia. He did a thorough assessment of Claimant’s needs. Dr. Empting contacted Dr. Lin to try to understand his reasoning behind discontinuing Claimant’s home health care.
41. In May 2009 Dr. Lin refused to offer any reasoning and refused to comment on Dr. Empting’s opinions. Dr. Lin would not be deposed and did not participate in this hearing.
42. In June of 2009 Dr. Empting issued a written opinion that Claimant needed between 6 to 8 hours per day of home health care assistance due to his work related injuries. He testified that the home health care was for help with transfers, toileting, dressing, medication issues, eating and nutrition activities and help in prevention of falls. Dr. Empting was extremely concerned with Claimant’s safety. Claimant has fallen and was hospitalized due to the fall. Dr. Empting testified that in an ideal world Claimant would have 24 hour care, there has to be a compromise and having someone with him for 6-8 hours when he needs them the most would satisfy that.
43. Claimant’s home health attendant is a certified nurse’s aide. She testified that Claimant is unsafe alone at home. He cannot reliably take his medications. He is not good at decision making which places him at physical risk. She assisted Claimant with medications, bathing, fall prevention, transfers, dressing, hygiene, cooking and eating and some limited housework. She testified she is not a housekeeper. The majority of her time is devoted to preventing falls, assisting with transfers and bathroom needs.
44. The testimony of Claimant’s home health attendant, his daughter and his son-in-law all agree that a home health attendant or nurse’s aide needs to assist Claimant with medication doses, transfers, bathroom activities and safety, hygiene, dressing, doctor’s appointments and some meal preparation for nutritional purposes. Claimant testified that when no one is present he sometimes does not leave his bedroom and bathroom all day.
45. There was testimony from both his daughter and son-in-law that Claimant loses his balance easily and needs assistance to ensure he will not injure himself. This is the basis of the need for transfer assistance. All the witnesses who observed Claimant in his home testified that since home health services were discontinued Claimant had fallen several times and he has had a decline in his daily functioning. Claimant fell in June and needed not only emergency treatment but hospitalization for several days. The physical therapist at the hospital did not find it safe for Claimant to return home without home health care but eventually released him.
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46. Claimant requests six to eight hours of daily home health care and attorney’s fees and costs. Claimant’s counsel asks for thirty days from the date of decision to submit reasonable and necessary costs and attorney’s fees if the Claimant prevails.
CONCLUSIONS OF LAW:
1. It is the Claimant’s burden to establish all facts essential to support a workers’ compensation claim. King v. Snide, 144 Vt. 395, 399 (1984). Sufficient competent medical evidence must be admitted to verify the extent of injury and disability as well as the causal connection to the work related injury. Egbert v. The Book Press, 144 Vt. 367 (1984).
2. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five part test to determine which expert’s opinion is the most persuasive: 1) the nature of treatment and the length of time there has been a patient provider relationship; 2) whether the expert examined all of the 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 their training and expertise. Geiger v. Hawk Mountain, Opinion No. 37-03WC (September 17, 2003).
3. The two experts in the instant case, Dr. Lin and Dr. Empting, came to very different conclusions. Dr. Empting has more of a longstanding relationship with the Claimant and has seen him approximately 22 times over the past year whereas Dr. Lin only saw Claimant on two or three brief occasions. Dr. Empting also reviewed all of Claimant’s home health care history and his current needs in a thorough, comprehensive manner as well as consulting his previous physician in Vermont.
4. As previously stated, Dr. Empting is both a psychiatrist and a neurologist and is a highly qualified expert in these types of cases having 30 years of experience with patients similar to Claimant.
5. Dr. Lin of the Shepherd Center, one of the leading rehabilitation centers in the country, terminated Claimant’s home health attendant care abruptly. He failed to state his reasoning behind these recommendations when challenged by Dr. Empting and failed to participate in this appeal.
6. Vermont’s Workers’ Compensation Act covers medically necessary home medical and nursing services under 21 V.S.A. §640(a). The controlling provision states “[a]n employer subject to the provisions of this chapter shall furnish reasonable surgical, medical and nursing services and supplies to an injured employee.” The statute is remedial in nature and must be liberally construed to provide an injured employee with benefits unless the law is clear to the contrary. St. Paul Fire and Marine Ins. Co. v. Surdam, 156 Vt. 585, 590 (1992) citing Montgomery v. Brinver Corp., 142 Vt. 461, 463 (1983).
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7. In Close v. Superior Excavating Co., 166 Vt. 318 (1997), the Vermont Supreme Court upheld compensation for home care services performed by Claimant’s wife. In Close, the Claimant suffered a head injury and required 24 hour supervision. Claimant’s spouse provided care including administering and monitoring medications as well as logging and supervising the claimant’s behavior for safety and well being. Claimant’s spouse was paid for her services including housekeeping services when they were incidental to her medical and monitoring services. There is no disagreement that just housekeeping services alone have been found not compensable. Patch v. Cummings Construction, et al., Opinion No. 49-02WC (2002).
8. The services requested for 6-8 hours per day in the instant case are not for housekeeping purposes. They are for medically necessary medical and or nursing services such as medication management, assistance with transfers, toileting and safety management. They were provided by a certified nursing aide.
9. Defendant tries to make a distinction between mere housekeeping being noncompensable and only skilled registered nursing services being compensable under the statute and case law. However, there is a middle ground and level of care that can be provided by a spouse, as in the Close opinion, or by a certified nurse’s aide. Cases like this, as stated in the Close opinion, should be determined on a case by case basis at the discretion of the Commissioner. In my opinion, the certified nurse’s aide in the instant case is performing similar services as the spouse in the Close case and such services qualify as compensable under the statute.
10. I find Dr. Empting credible that Claimant needs this middle level of medical and nursing care, something less than a registered nurse would provide, but more than mere cooking and cleaning. Claimant needs help taking his medication, transferring from his bed to his wheelchair, toileting assistance, and care to ensure his safety.
11. Claimant has sustained his burden by a preponderance of the evidence for his need for home health care services for 6 to 8 hours per day due to his work related injuries. These services are found both medically necessary and appropriate.
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ORDER:
Based on the foregoing findings of facts and conclusions of law, the DEFENDANT is hereby ordered to pay:
1. Medical benefits in the form of certified nursing aide care for Claimant for 6 to 8 hours per day beginning immediately and to continue until his primary care physician finds them no longer necessary or decreases the hours of care needed;
2. Reasonable and necessary costs and attorney’s fees to be established. These costs and fees should be documented and filed with the Department within 30 days of the date of this opinion. Defendant will then have ten days to respond to the amounts if it argues they are unnecessary or inappropriate under the statutes and rules.
DATED at Montpelier, Vermont this 25th day of November 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.

Susan Daignault v. SOV, Economic Services Division (September 2, 2009)

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Susan Daignault v. SOV, Economic Services Division (September 2, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Susan Daignault Opinion No. 35-09WC
v. By: Jane Dimotsis, Esq.
Hearing Officer
State of Vermont,
Economic Services Division For: Patricia Moulton Powden
Commissioner
State File Nos. Y-5638 and T-18733
OPINION AND ORDER
Hearing held in Montpelier on May 12, 2008
Record closed on June 27, 2008
APPEARANCES:
Kelly Massicotte, Esq., for Claimant
Wesley Lawrence, Esq., for Defendant
ISSUES PRESENTED:
1. Does Claimant suffer from work-related carpal tunnel syndrome?
2. If yes, is the proposed surgery reasonable and necessary?
3. May Defendant claim a credit against any workers’ compensation benefits awarded for the amount it paid as a deposition fee in excess of the applicable fee schedule amount?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit A: Curriculum vitae, James Mogan, M.D.
Claimant’s Exhibit B: Work Station/Work Place Assessment, July 17, 2003
Defendant’s Exhibit 1: Curriculum vitae, William Boucher, M.D.
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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 and correspondence contained in the Department’s file relating to this claim.
3. Claimant has been a State of Vermont employee for more than twenty years. Since 2002 she has worked in the Economic Services Division as a Benefits Program Specialist. She is responsible for determining whether applicants are eligible for food stamps, Medicaid and long-term care benefits. Thus, her job duties include processing both new applications and recertifications, conducting telephone interviews and analyzing verification information.
4. Functionally, Claimant estimates that she spends approximately 95% of her work day actively using her hands, whether it be inputting data on the computer via keyboard and/or mouse, printing out and folding letters, taking handwritten notes or filing. Her work is varied, however, and does not involve doing any one of these tasks for an entire day without stopping.
Claimant’s Prior Medical History
5. Claimant has a prior medical history of thyroid cancer. Her thyroid was surgically removed in 1997. Since then she has been treated for hypothyroidism – low thyroid function – with synthetic thyroid replacement medications. Some of the symptoms of low thyroid function include fatigue, diffuse joint pain, weight gain and feeling cold. When Claimant’s thyroid level gets out of sync with her medications, as has happened about once yearly since 2000, these symptoms become exacerbated. They tend to dissipate once the dosage levels are adjusted and her body has time to readjust.
Claimant’s 2003 Injury Claim
6. In May 2003 Claimant complained that her right wrist and hand were swollen. She related her symptoms to the repetitive tasks she had to perform at work, such as filing, keyboarding, writing and stapling. Defendant filed a First Report of Injury and referred her to Dr. Backus for evaluation.
7. Dr. Backus diagnosed degenerative arthritis in Claimant’s thumbs. Although he noted some signs of median nerve irritation in her right wrist, he did not believe these symptoms to be consistent with carpal tunnel syndrome, but rather thought that they more likely were referable to the inflamed tendons in her thumb.
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8. Based on Claimant’s report that her symptoms seemed to flare occasionally regardless of either work or home activity, Dr. Backus concluded that her condition was not work-related. Nevertheless, he recommended that Claimant’s work station be assessed for possible ergonomic improvements. As a result of that assessment, various changes were suggested, including an articulating keyboard tray, a repositioned monitor and wide-grip pens. Claimant testified that only the last recommendation – that she use wide-grip pens to “reduce her current symptoms when taking extensive notes” – was ever implemented.
9. Claimant testified that after Dr. Backus’ evaluation she treated her aching hands with over-the-counter medications and Ben-Gay. From 2005 to 2007 she underwent additional evaluations with Dr. Nielson, her primary care provider, Drs. Lau and Jones, both rheumatologists, Dr. Nathan, an endocrinologist, and Dr. Winokur, an orthopedist. During this time period, Claimant was complaining not just of bilateral hand pain but of more diffuse joint pains as well, including pain and swelling in her ankles, pain in her feet, achiness in her right knee and right shoulder pain.
10. No clear diagnosis for any of these complaints ever emerged. Of note, Dr. Nielson reported in April 2006 that Claimant had stiffness and pain bilaterally with wrist rotation, but did not report that she was experiencing numbness or tingling, the classic first sign of carpal tunnel syndrome. Both Tinel’s and Phalen’s tests were negative for the condition, furthermore. Also of note, Dr. Nathan concluded that at least as of August 2006 Claimant’s symptoms were not related to any thyroid replacement or thyroid cancer issues.
Claimant’s 2007 Injury Claim
11. In June 2007 Claimant filed another workers’ compensation claim, again alleging work-related bilateral hand pain. By this point, she testified, she was experiencing numbness, tingling and pain in both hands. At times she would awaken at night because her hands were bothering her. Claimant testified that she felt that working “non-stop” all day made her symptoms worse.
12. This time, Claimant treated with Dr. Mogan, a board-certified hand surgeon. EMG testing documented mild carpal tunnel syndrome bilaterally, and Dr. Mogan determined that both her subjective report and her physical examination (positive Tinel’s and Phalen’s tests bilaterally) were indicative of the condition. When a steroid injection failed to produce any relief of symptoms, Dr. Mogan recommended surgery.
13. Defendant denied the compensability of Claimant’s condition on the grounds that it was neither caused nor aggravated by her work. It also has denied responsibility for the surgery recommended by Dr. Mogan. As of the date of the formal hearing, Claimant had not undergone the surgery, but was continuing to work full-time without restrictions nonetheless.
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Expert Medical Opinions
14. Dr. Mogan testified on Claimant’s behalf as to the work-relatedness of her condition and the reasonable necessity of surgery as the most appropriate treatment. Dr. Boucher testified on Defendant’s behalf to the opposite conclusion. Despite their opposing views, both doctors agreed on the following salient points:
• Carpal tunnel syndrome is a condition that results from the compression of the median nerve in the hand. The compression causes specific symptoms – numbness, tingling and pain – in the areas innervated by the median nerve – the thumb, index and long fingers, and occasionally half of the ring finger as well. These symptoms often occur at night.
• The most prevalent cause of carpal tunnel syndrome is idiopathic, meaning that no specific reason for the nerves or tendons that pass through the carpal tunnel to have become swollen or inflamed can be identified. Age and obesity are risk factors, as are systemic diseases such as diabetes. Hypothyroidism also has been associated with carpal tunnel syndrome, as evidenced by the increased incidence of the condition in the population of people who suffer from low thyroid function.
• As for work-related risk factors, the medical literature currently supports a connection between carpal tunnel syndrome and work that requires both repetition and forceful gripping – a machinist working with small hand tools throughout the day, for example. According to the medical literature, there is no proven relationship or association between carpal tunnel syndrome and work that involves repetition alone, with no element of forceful gripping.
15. Dr. Mogan testified that Claimant suffers from bilateral carpal tunnel, which in his opinion was not caused by her work but has been aggravated by it. Dr. Mogan did not speculate as to what might have caused Claimant to develop the condition initially. As to his opinion that work aggravated it, he referred only to Claimant’s subjective report that her symptoms were worse at the end of her work day.
16. Dr. Mogan admitted that aside from the most general understanding of Claimant’s job – that it was administrative in nature and that it involved “repetitious” typing, filing and writing – he knew nothing about the specifics, for example, the extent of each of these activities during Claimant’s work day or the layout of her work station. In fact, Dr. Mogan acknowledged that he spent less than a minute discussing Claimant’s job with her. He testified that his primary concern is to treat his patients’ symptoms, not to discern their forensic cause. Thus, Dr. Mogan conceded that he had “no idea” what it was about Claimant’s work that made her symptoms worse, only that it did so.
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17. Dr. Mogan also acknowledged that Claimant’s job likely does not involve the type of repetitive forceful gripping that has been proven to be associated with carpal tunnel syndrome. Although he agreed that the medical literature no longer supports any association between repetition alone and carpal tunnel syndrome, in his own clinical practice he has observed that patients who are both predisposed to develop the condition and who work in repetitive jobs are more likely to develop carpal tunnel syndrome than those who are predisposed but do not work in repetitive jobs.
18. Dr. Boucher disagreed both with Dr. Mogan’s diagnosis and with his opinion as to causal relationship. According to Dr. Boucher, Claimant’s symptoms are indicative not of carpal tunnel syndrome, but of a more diffuse neuropathy most likely involving the median nerve. For the following reasons, Dr. Boucher believes this neuropathy is causally related to Claimant’s hypothyroidism, not her work:
• Claimant’s work is only intermittently repetitive, and does not involve any forceful gripping;
• Claimant’s symptoms are bilateral and symmetric, which more likely indicates a systemically caused neuropathy rather than one related to activity;
• Claimant’s lack of response to Dr. Mogan’s steroid injection is indicative of a primary problem involving the median nerve itself rather than some activity-related tendon inflammation; and
• Claimant’s particular complaints, which included not only bilateral hand and wrist numbness and pain, but also diffuse neck, right shoulder and lower extremity joint pains, are all compatible with active hypothyroidism and are better explained by that condition than by a diagnosis of carpal tunnel syndrome.
19. Dr. Boucher also disagreed with Dr. Mogan’s treatment recommendation. According to Dr. Boucher, patients who suffer from carpal tunnel syndrome secondary to hypothyroidism tend not to improve with surgery. At a minimum, therefore, Dr. Boucher would recommend waiting until Claimant’s thyroid function has tested normal for at least three months and then, if her hand symptoms have not improved, conducting repeat EMG testing prior to considering surgery.
Dr. Mogan’s Deposition Fee
20. On April 9, 2008 Claimant’s counsel notified Defendant’s counsel that Dr. Mogan would be available to be deposed on April 21, 2008. Claimant’s counsel also forwarded a copy of Dr. Mogan’s fee schedule, which indicated an hourly fee of $400 for deposition testimony.
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21. Defendant took Dr. Mogan’s deposition as scheduled and later paid the $400 fee in full. At some later date, Defendant challenged the fee on the grounds that the maximum allowable fee for such services under Workers’ Compensation Rule 40.111 was $300. Defendant now seeks a credit of $100 against any benefits it is determined to owe Claimant.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
3. I appreciate Dr. Mogan’s candor in acknowledging that his job is to treat his patient’s symptoms, not to discern their forensic cause. This is, unfortunately, evidenced by his opinion as to causation, which is based principally on one factor – the temporal relationship between Claimant’s work and her symptoms – and little if anything else. And while a temporal relationship combined with other factors may be sufficient to show causation, Hatin v. Our Lady of Providence, Opinion No. 21-03WC (April 29, 2003), a temporal relationship alone is too shaky a base upon which to rest an award. Norse v. Melsur Corp., 143 Vt. 241, 244 (1983); Bockus v. Datatrac Information Services, Opinion No. 14-05WC (February 8, 2005).
4. Here, the other factors relevant to causation work against a finding of work-relatedness rather than in favor of it. Most notably, Claimant’s work did not include the forceful gripping component that both experts agree has been proven to be the key to establishing an association between carpal tunnel syndrome and repetitive work. With that in mind, to posit that Claimant’s condition was aggravated by her work activities rather than by the other risk factors with which she presented, including her hypothyroidism, is too speculative for me to accept.
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5. I conclude, therefore, that Claimant has failed to sustain her burden of proving that her work for Defendant either caused or aggravated her carpal tunnel syndrome. It follows, therefore, that she is not entitled to workers’ compensation benefits related to Dr. Mogan’s proposed surgery.
6. As for Defendant’s claim that it is entitled to a credit for the amount it paid Dr. Mogan in excess of the maximum charge allowed by Workers’ Compensation Rule 40.111, there being no benefits owed there is nothing from which to take a credit. That said, common sense dictates that it is far easier to avoid responsibility for an unwarranted charge before one pays the bill, not after.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for workers’ compensation benefits is hereby DENIED.
DATED at Montpelier, Vermont this 2nd day of September 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.

Madelyn Sinon v. State of Vermont (April 1, 2009)

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Madelyn Sinon v. State of Vermont (April 1, 2009)
STATE OF VERMON
DEPARTMENT OF LABOR
Madelyn Sinon Opinion No. 10-09WC
v. By: Jane Gomez-Dimotsis
Hearing Officer
State of Vermont For: Patricia Moulton Powden
Commissioner
State File No. R-15007
OPINION AND ORDER
Hearing held in Montpelier on October 14, 2008
Record closed on November 17, 2008
APPEARANCES:
Patricia Turley, Esq. for Claimant
William Blake, Esq. for Defendant
ISSUES:
Is Claimant’s ongoing medical treatment, including medications, reasonably necessary and causally related to her work injuries?
EXHIBITS:
Joint Medical Exhibit (657 pages)
CLAIM:
Medical benefits under 21 V.S.A. §640(a)
Attorney’s fees and costs under 21 V.S.A. §678
FINDINGS OF FACT:
1. On the date of injury Claimant was an employee of Defendant and Defendant was an employer within the meaning of Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all forms and correspondence contained in the Department’s files relating to this claim.
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Claimant’s Work-Related Injuries
3. Claimant began working for the State of Vermont as an administrative assistant in May 1986. In May 1997 Claimant reported a work injury to her neck, shoulder and trapezius muscle caused by her daily repetitive activities, such as filing and answering the phone. Defendant accepted her claim as compensable and began paying workers’ compensation benefits accordingly.
4. Claimant suffered a second injury, causally related to the first, on July 7, 1999. She was undergoing treatment at the Spine Institute when she injured her sacroiliac joint. Claimant also alleged right shoulder blade and rib cage pain while participating in physical therapy. Again, Defendant accepted all of these injuries as compensable and paid benefits accordingly.
Diagnosis, Treatment and Resolution of Original Injury Claims
5. Both Claimant’s original injury in 1997 and her second injury in 1999 were diagnosed as musculoskeletal and mechanical in origin. Neither MRI scanning nor electrophysiological studies revealed any cervical radiculopathy or brachial plexopathy that would account for her back, shoulder or rib cage pain.
6. Claimant underwent extensive conservative therapy for her pain complaints, including acupuncture, chiropractic manipulation, pool therapy, injections and physical therapy. When her pain complaints continued, Dr. Cove, her primary care physician, prescribed a number of narcotic pain medications.
7. Claimant saw Dr. Lapinsky in 1998, who recommended conservative treatment for her pain complaints, including exercise therapy, smoking cessation, weight loss and back and neck strengthening. Dr. Lapinsky also recommended that Claimant discontinue all psychoactive drugs, including Valium, narcotics, and muscle relaxants.
8. Dr. Lefkoe also evaluated Claimant in 1998. According to Dr. Lefkoe, when he refused to prescribe narcotic pain medications, Claimant terminated her care with him.
9. In August 2000 Dr. Fenton performed an independent medical examination. Dr. Fenton diagnosed Claimant with a mild chronic pain disorder and suggested that she have her hormone levels checked for an imbalance, as abnormalities of estrogen, progesterone, thyroid or pituitary adrenal axis can be a maintaining factor for such pain syndromes. Dr. Fenton stated that it was unlikely that any physical medicine would improve Claimant’s condition. The record does not reflect whether Claimant ever underwent the hormone level testing Dr. Fenton recommended.
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10. In July 2001 Dr. Pizzo, a chiropractor, evaluated Claimant. He diagnosed soft tissue complaints without any hard, confirmatory orthopedic or neurological signs. Dr. Pizzo attributed at least some of Claimant’s problems to poor physical conditioning. In his opinion, there was no ratable impairment causally related to either the 1997 or the 1999 work injuries. As for ongoing medical treatment, Dr. Pizzo stated that further chiropractic care was not reasonably necessary and would not further improve Claimant’s condition. In fact, Dr. Pizzo noted that Claimant was overly dependent on health care providers. He also advised that Claimant’s regimen of narcotic pain medications be reevaluated.
11. In 2001 the parties agreed that Claimant had reached an end medical result for her 1997 injury, with a 5% whole person permanent impairment. The parties executed a Form 22 Agreement for Permanent Partial Disability Compensation to that effect and Defendant paid permanency benefits accordingly.
12. In 2003 the parties executed a second Form 22, in which they agreed that Claimant had reached an end medical result for her 1999 injury, and now had a 7.5% whole person permanent impairment. Taking credit for the 5% already paid in conjunction with the 1997 injury, Defendant paid the additional 2.5% owed.
Post-Form 22 Medical Treatment
13. Claimant continued to treat with Dr. Cove, her primary care physician, for the next twelve years. Her treatment consisted primarily of a regimen of drugs. Claimant has taken, and still takes, the following medications: Oxycodone for pain relief, Topamax for pain control, Mobic, a non-steroidal anti-inflammatory, and Glycolax, for constipation caused by the other medications. Dr. Cove also prescribed Wellbutrin and Buspar, antidepressants, and Diazepam, a sleep aide. Earlier in her treatment Claimant was on methadone and tried other pain medications as well, but she discontinued those drugs when Topamax was added to her medication regimen. Despite this extensive and ongoing regimen of narcotic pain medications, Claimant has realized no real improvement in her pain complaints over the past twelve years.
14. Dr. Cove has acknowledged that it would be reasonable to attempt to schedule a taper of Claimant’s Oxycodone. In his opinion, this would take up to six months to accomplish. Claimant has reduced her use of Oxycodone down from as many as twenty-four 5 mg pills per day. She still remains on a dosage of ten per day, however, in addition to the other pain medications Dr. Cove continues to prescribe.
New Degenerative Condition
15. In March 2006 Dr. Cove noted that Claimant was reporting not only increased pain but new symptoms as well, including electrical jolts down her left upper extremity, numbness in the back of her right knee and increased lumbar pain. Dr. Cove ordered an MRI to identify the source of Claimant’s new complaints.
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16. The MRI confirmed cervical and lumbar disc disease caused by natural degeneration. This is undisputed by the parties. Previous MRI scans taken of Claimant’s back in both October 1998 and February 2000 had been normal. The newly discovered degenerative condition is known to cause pain in the cervical and lumbar regions of the back.
17. In June 2006 Claimant sought treatment for pain in her sacroiliac region allegedly related to her work injuries. She received an injection for pain on June 26, 2006. The bill for this treatment remains outstanding and has had an adverse effect on Claimant’s credit rating. Defendant did not file a Form 27 terminating its responsibility for such treatment until October 2006, some four months later.
Expert Medical Opinions
18. Dr. Backus first saw Claimant for an independent medical examination in April 2003. His diagnosis was chronic myofascial cervical trapesial pain syndrome, or in other words, muscle pain.
19. In April 2006 Dr. Backus conducted a second IME. Based in part on the new MRI findings, Dr. Backus diagnosed spinal stenosis, cord impingement at C5-6 and C6 radiculopathy. In his opinion, these conditions all resulted from age-related degenerative changes in Claimant’s spine, neither caused nor aggravated by either of her prior work injuries. Dr. Backus attributed all of Claimant’s current symptoms to these degenerative conditions. As a result, he concluded that the ongoing treatment and medications Claimant continues to undergo is no longer related to her work injuries.
20. Dr. Rinehart conducted a medical records review in July 2007 and an independent medical evaluation in September 2007. In his opinion, Claimant’s pain had been caused from the beginning by degenerative changes in her spine, and not by either of her work injuries.1 Dr. Rinehart theorized that these degenerative changes were mild initially, and therefore did not show up on earlier MRI scans. With time, however, they became overt and recognizable on the 2006 MRI. Dr. Rinehart firmly believes that Claimant’s symptoms were not caused by any work injury, and that her current treatment and need for pain medications are caused by the age-related degeneration of her spine, and exacerbated by tobacco use, not by any work injury.
21. Dr. Rinehart also believes that there has been a significant psychological component to Claimant’s condition. He noted what he considered to be excessive dependence on medical providers, citing records to establish that over a ten-year period Claimant saw a physician on an average of 4.6 visits per month. Dr. Pizzo had raised similar concerns as early as 2001.
1 Notwithstanding Dr. Rinehart’s opinion, the parties agree that causation of the original injuries is not at issue in the current claim.
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22. Even Dr. Cove, Claimant’s treating physician for more than twelve years, now admits that he cannot state to the required degree of medical certainty that Claimant’s cervical and lumbar disc disease was either caused or aggravated by her work injuries. Nevertheless, in Dr. Cove’s opinion Claimant still would need all of the pain medications he has prescribed even absent her cervical and lumbar disc disease. There is no objective support for this opinion.
23. With Dr. Rinehart’s opinion as support, Defendant filed a Form 27 terminating all medical benefits as of July 20, 2007. The Department approved the termination.
CONCLUSIONS OF LAW:
1. When an employer seeks to terminate coverage for medical benefits, it has the burden of proving that the treatment at issue is not reasonable. Scranton v. The Book Press, Opinion No. 06-07WC (February 22, 2007). A treatment can be unreasonable either because it is not medically necessary or because it is not related to the compensable condition or injury. See, e.g., Morriseau v. State of Vermont Agency of Transportation, Opinion No. 8-00WC (May 17, 2004).
2. In this case, Defendant argues that Claimant’s current symptoms and need for ongoing medical treatment is causally related to her degenerative disc disease, and not to any work-related or compensable condition. Therefore, Defendant argues it is no longer responsible for any further treatment, including pain medications.
3. It is well accepted that when a compensable work-related injury occurs, all of the medical consequences and sequelae that flow from it are compensable as well. Larson’s Workers Compensation Law §10.01. Determining which medical consequences flow from the work injury and which do not requires expert testimony. Lapan v. Berno’s, Inc., 137 Vt. 393 (1979). Establishing the connection requires more than conjecture, surmise or mere possibility. The inference from the facts proved must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
4. 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: (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. 3-03WC (Sept. 17, 2003).
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5. Applying this test to the instant claim weighs in favor of the two orthopedic experts, Dr. Backus and Dr. Rinehart. It is their particular training and expertise in the field of work injuries involving orthopedics, pain and occupational medicine that makes them the most credible. Both doctors have made this type of medicine their specialty for many years and both are employed doing this particular work on a daily basis. With this training and experience as a backdrop, both performed comprehensive reviews of Claimant’s medical records in addition to their examinations.
6. While admittedly Dr. Cove has had a longstanding treatment relationship with Claimant, he does not have the same specialty credentials in the spine, pain or orthopedic medicine.
7. I can find no objective basis for any work-related connection that would render Claimant’s ongoing treatment compensable. Until the 2006 MRI, there was little, if any, objective explanation for the fact that Claimant continued to suffer pain from what had been diagnosed as a soft tissue or mechanical injury. Treatment remained the same for more than ten years and Claimant’s condition did not improve. Ultimately, the 2006 MRI provided a reasonable, non-work-related explanation for Claimant’s persistent symptoms and current condition. This condition is strictly related to the natural progression of her disc disease, and has been neither caused nor aggravated by her work injuries. Its treatment, therefore, is not compensable.
8. Having concluded that Claimant’s current condition is not related to either of her prior accepted injury claims, it is not up to me to determine whether the treatment she continues to receive, including pain medications, is reasonably necessary. This is a matter I must leave to Claimant, in consultation with her treating physician. The medications he has prescribed, including those to treat Claimant’s depression, may well be reasonable and necessary for chronic pain. As the source of that pain is no longer work-related or compensable, however, neither are the medications. My inquiry can go no further than that.
9. I do find, however, that the outstanding bill for the pain injection Claimant received on June 26, 2006 is Defendant’s responsibility. The Form 27 Defendant filed in October 2006 cannot be applied retroactively.
10. As Claimant has not prevailed, she is not entitled to an award of costs or attorney’s fees.
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ORDER:
Based on the foregoing findings of facts and conclusions of law, Defendant is hereby ORDERED to pay:
1. All outstanding medical charges related to the June 26, 2006 injection procedure.
2. All other claims made by Claimant for medical services and supplies, including pain medications, are hereby DENIED.
DATED at Montpelier, Vermont this 1st day of April 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.

G. R. v. State of Vermont, Vermont State Hospital (January 4, 2008)

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

G. R. v. State of Vermont, Vermont State Hospital (January 4, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
G. R. Opinion No. 36-07WC
By: Jane Gomez-Dimotsis
v. Hearing Officer
Vermont State Hospital For: Patricia Moulton Powden
Commissioner
State File No. X-02471
OPINION AND ORDER
Hearing held in Montpelier on July 10, 2007
Record closed on August 17, 2007
APPEARANCES:
Mark H. Kolter, Esq. for Claimant
Nathaniel Seeley, Esq. for Defendant
ISSUES:
1. Does Claimant have a compensable injury for her right knee?
2. If so, when did Claimant reach a medical end result?
3. Were Claimant’s medical treatments for her accepted back injury reasonable and necessary after June 15, 2006?
4. When did Claimant reach medical end result for her back injury?
5. What, if any, are the correct permanent impairment ratings for Claimant’s alleged knee and back injuries?
6. What benefits is Claimant entitled to?
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EXHIBITS:
Claimant’s Exhibits
1. Initial Injury Reports (4) which include Defendant’s Exhibit C
2. 5 Gallon Water Bottle
6. Unrelated Incident Reports, 1997-2005
7. Dr. Bucksbaum Curriculum Vitae
9. Form 27, Dated 2/9/06 with Claimant’s Letter
11. Medical Illustrations (11 pages)
12. Dr. Joseph Abate’s Medical Reports of Claimant
13. Central Vermont Medical Center Notes of Claimant
14. Central Vermont Medical Center Emergency Room Report of Claimant
Defendant’s Exhibits
A. Telephonic Reports, State of Vermont Workers’ Compensation
B. Nursing Education of Claimant (9 pages)
C Vermont State Hospital Employee First Report of Injury Form
D SOV Risk Management Division Claim Questionnaire
E. Independent Medical Evaluation Questionnaire
F. Dr. Robert Boucher’s Curriculum Vitae
Joint Medical Exhibit of Claimant’s Medical Records Filed 7/10/07
CLAIM:
1. All medical treatments for Claimant’s right knee.
2. TTD for right knee injury from 10/12/06, the date of knee surgery, until 5/18/07 when Claimant reached medical end result.
3. PPD of 5% whole person for right knee injury.
4. All medical treatments for Claimant’s low back injury from June 14, 2006 until August, 26, 2007.
5. PPD of 5% whole person for low back injury.
6. Attorney’s Fees and Costs.
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FINDINGS OF FACT:
1. On November 7, 2005, Claimant was an employee under the Worker’s Compensation Act and Vermont State Hospital was her employer under the Act. Claimant has her high school diploma and is a licensed nurse’s aide. She is 47 years old and married. She is psychiatric technician III. The highest level achievable is level IV. Claimant has worked at the State Hospital for 11 years.
2. The parties have stipulated that Claimant injured her lower back in the course of her employment at the Vermont Hospital on November 7, 2005. Claimant was found to be at medical end result for her back injury on June 14, 2006 by Defendant’s expert, Dr. Robert Boucher. Temporary Benefits for her back were terminated at the end of June, 2006. Claimant alleges that her back was not at medical end result and that she also injured her right knee at the time of her accident at work.
3. On November 7, 2005, Claimant was retrieving a bin weighing approximately forty pounds containing a patient’s belongings and located in a locked kitchen/storage room at the Vermont State Hospital. Employees kept a full five gallon water bottle to use as a doorstop when they needed to retrieve items and re-enter the room quickly. The door was opened by a key but locked automatically. The door opened inward from the hallway.
4. Claimant entered the locked room by pushing the door inward and to the left and using her right leg and the inside of her right foot slid the water bottle across the floor and pushed it to use as a doorstop.
5. When she entered the kitchen/storage room, Claimant searched through bins and had to bend, lift, squat and twist to move items around. After retrieving what Claimant believed to be the appropriate bin and carrying it, Claimant used her right leg and the outside of her right foot to push the water bottle out of the way to allow the door to close and lock.
6. While carrying the bin and then putting it down, Claimant felt a “twinge” in her back. Unfortunately, the bin was not the correct one, and Claimant had to return to the locked room and again start the process of unlocking the door and using her right leg and foot to move the water bottle in place. When she bent over to return the bin, Claimant felt an immediate tightening in her back. She could not move for several minutes. When she was able to stand, she left the room, and again pushed the full five gallon water bottle with her leg. She entered the corridor where she stood with her back to the wall experiencing shooting pain from her low back through her right buttock and leg. She completed an injury report and sought medical treatment the following day. By the time she sought treatment her symptoms were worse.
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7. Within a day of her injury and consistently thereafter, the Claimant reported pain running from her low back, down through her right buttocks and right leg, and experienced tingling in her right foot. A diagnosis of right leg sciatica and a possible herniated disc were made in the Emergency room at Central Vermont Medical Center the day following the incident. Dr. David Indenbaum, the emergency room doctor, noted that the Claimant complained of right leg pain on the November 8, 2005 visit. Claimant’s primary physician Robert Davidson, Certified Physician’s Assistant (PA-C), initially felt these diagnoses were reasonable and opined that further testing was not immediately needed.
Claimant’s Knee Injury
8. Claimant was out of work after her injury. She was on bed rest and medicated with Percocet which, at first, masked the extent of her knee injury. Her back injury was an accepted claim and the insurance company approved treatments and benefits. When Claimant began physical therapy her knee symptoms increased which led her physical therapist to detect Claimant’s knee injury. This led her to see her regular provider, Robert Davidson, PA-C, who examined her knee on December 12, 2005. He ordered an MRI which showed a medial collateral tear in her right knee.
9. Robert Davidson, PA-C, has been Claimant’s primary care provider for approximately ten years. He has treated her extensively before and after her injury. Mr. Davidson diagnosed Claimant’s right knee injury as a torn medial collateral ligament. Prior to Mr. Davidson’s treatment for Claimant’s right knee at Vermont State Hospital in 2005, he had not treated her for any knee injuries. Mr. Davidson believed it medically logical that the leg motions Claimant used to move the water bottle caused the injury to her knee. He determined the knee injury to be work related.
10. Claimant also saw Dr. Christian Bean, an orthopedic surgeon, who also concluded that her right knee injury was work related. Dr. Bean stated that the acute symptoms and presentations of the Claimant support a medial collateral ligament injury from a work event, not overuse or chronic use.
11. Dr. Joseph Abate, an orthopedic surgeon, performed arthroscopic right knee surgery on October 12, 2006 on Claimant’s right knee. Dr. Abate’s diagnosis was similar to Dr. Bucksbaum’s diagnosis which follows. Claimant again underwent physical therapy after surgery. Claimant could not return to work until May 21, 2007.
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12. Dr. Mark Bucksbaum, a Certified Independent Medical Examiner as well as a Diplomat of the American Board of Physical Medicine and Rehabilitation, performed two Independent Medical Examinations of the Claimant’s injuries. He conducted comprehensive examinations of Claimant’s knee and reviewed all available records. He diagnosed Claimant’s mechanical low back pain and three post traumatic knee injuries. He diagnosed a medial collateral tear, patello femoral arthritis and medial plica syndrome. Dr. Bucksbaum opined that the arthritis was caused by trauma to the knee and not by natural aging. His diagnosis was not based solely on the MRI, but also from Claimant’s physical examination which showed Claimant was unable to rock back on her heel, unable to complete a gait test and her stress testing showed laxity in her knee and her explanation of how the injury occurred.
13. Dr. Bucksbaum based his opinion on the objective medical evidence as well as his own medical examination and years of experience treating knee injuries. His opinion was, in part, based on an MRI of Claimant’s knee which was taken on December 15, 2005. Based on his analysis of the MRI, Dr. Bucksbaum concluded that there was a complete tear of the medial collateral ligament with edema present in the surrounding tissue. He also wrote in his notes “1. Small osteochondritic defect anterior aspect lateral femoral condyle. 2. tear medial collateral ligament”.
14. Dr. Bucksbaum also spoke at length to the Claimant about how her injury occurred. He stated that the description she gave him of her activities on December 7, 2005 were consistent with the injuries she sustained. In particular, Dr. Bucksbaum explained that the knee is not mechanically able to move well laterally. It is made to move forward and backwards. He finds that lateral movements compromise the knee.
15. Dr. Bucksbaum has extensive experience in treating knee injuries. He has treated over a thousand cases similar to the Claimant’s injury. Prior to his medical training and career, he was an engineer who helped develop certain medical imaging devices. He is an expert in knee injuries. He found the Claimant’s knee injuries work related to a degree of medical certainty.
16. Dr. Bucksbaum also explained the knee injury’s relationship to Claimant’s back injury and the reason why the knee injury was not immediately apparent. The day after Claimant’s injury the doctors thought Claimant’s knee pain was related to her back injury. Dr. Bucksbaum agreed with Robert Davidson’s assessment as well as with Dr. Bean’s opinions. He explained why it took some time to uncover the separate knee injury and found it reasonable.
17. Both Dr. Mark Bucksbaum and Mr. Davidson, PA-C, found Claimant at medical end result on May 18, 2007 for her knee. Six months was considered a normal recovery period for knee surgery for a woman of Claimant’s height and weight.
18. Dr. Bucksbaum gave the Claimant a 5% whole person permanent impairment rating for Claimant’s right knee. He chose the most conservative rating under current AMA Guides. Dr. Bucksbaum gave a lengthy credible explanation for his rating.
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19. Dr. William Boucher performed two medical examinations on the Claimant’s knee for the defendant. The first was on March 9, 2006. Dr. Boucher opined that Claimant’s right knee problem was a right medial collateral ligament strain. He determined that the strain was not work related because the mechanism of the injury as described by the Claimant could not have reasonably caused a right knee injury. However, Dr. Boucher, on cross examination, did not fully understand the mechanics of how the Claimant’s injury occurred. In Dr. Boucher’s first medical report he wrote that the right knee injury pre-existed Claimant’s work related injury. At the hearing, Dr. Boucher stated that the Claimant’s knee injury was caused by arthritis. Dr. Boucher did not view the MRI film but determined that it must be in error.
20. Dr. Boucher has sixteen years experience in performing Independent Medical Evaluations and Permanent Impairment Ratings. He is Board Certified in Preventive Medicine, Occupational Medicine and as an Independent Medical Examiner. He co-wrote a portion of the A.M.A. Guidelines with Christopher Brigham, M.D. Currently, Dr. Boucher spends 90% of his time performing Independent Medical Examinations.
21. Dr. Boucher opined that Claimant’s knee injury was unrelated to her incident in November of 2005 at work. He did not believe that the knee had an MCL tear based on Dr. Abate’s surgery notes and the way in which he understood the injury to have occurred.
22. Dr. Boucher’s examination of the Claimant on June 14th, 2006 followed her branch block injection administered to her the prior week to relieve her pain. Dr. Boucher, however, did not find the injection affected his evaluation of the Claimant.
23. Dr. Boucher also opined in his hearing testimony that the Claimant had chronic right calf atrophy but his report on March 9, 2006 stated “there was no muscle atrophy”.
Claimant’s Back Injury
24. As previously stated, the insurance company for the Vermont State Hospital, found Claimant’s back injury compensable and paid for treatment until the end of June, 2006. Her original diagnosis from the Emergency Room physician, Dr.Indenbaum, was that there was a question of whether the Claimant had a disc herniation. It was discovered after a CT scan of the spine that the Claimant had a mild annular bulge of the L4-5 disc. Her treating provider, Robert Davidson, determined that she had lumbar strain with right leg radiculopathy. It was recommended that Claimant receive physical therapy and manual therapy as well as medications. Claimant engaged in physical therapy as well as aquatic therapy. Neither was particularly helpful to her. However, as of May 2, 2006, she was still experiencing pain. The end date for compensable treatment of the Claimant’s back injury was based on Dr. Boucher’s examination.
25. After Dr. Boucher’s examination of Claimant’s back on March 6, 2006 he determined that she had a lumbar sprain and was not at maximum medical end result. He determined that exercise and further treatment would improve her condition.
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26. On June 14, 2006, Dr. Boucher did another medical examination of the Claimant and determined that her lumbar strain had resolved. However, Claimant was still having back pain. Dr. Boucher believed that the Claimant was depressed and magnifying her symptoms. He did state on cross examination that symptom magnification does not mean that the Claimant was falsifying her symptoms. Dr. Boucher could not account for why other doctors believed her to still need treatment unless she had suffered another back injury. However, the facts are clear that she did not have another back injury.
27. On June 29, 2006, Dr. Michael Borrello, from the Pain Management Division of Fletcher Allen Health Care stated that the Claimant had not yet reached medical end result for her back. He and Dr. Timothy Waring administered bilateral medial branch blocks for pain in Claimant’s lower back on June 8, 2006. Dr. Borrello opined on June 29, 2006 that a continuation of radiofrequency procedures would be helpful to the Claimant to control her pain. Claimant had another treatment on July 6, 2006.
28. Claimant had a work enhancement evaluation done at Fletcher Allen Health Center’s Work Enhancement Rehabilitation Center (WERC) on July 18, 2006. She was referred by Dr. Robert Monsey. It was determined by this evaluation that the Claimant was functionally limited by pain. She also presented with significant psychological distress that appeared to be limiting her ability to cope with her current functional limitations. The Claimant was determined to be a good candidate for the three week program offered at WERC.
29. Dr. Bucksbaum believed the Claimant would have benefited from more medial branch block treatments as well as the Level 4 Functional Restoration Program. However, the insurance company would not pay for further treatment due to Dr. Boucher’s opinion. Dr. Boucher did not find the treatment medically necessary even though he believed the Claimant had symptom magnification. The WERC program would have addressed these issues. Dr. Monsey, Dr. Borrello and Dr. Bucksbaum all disagreed with Dr. Boucher’s opinion.
30. Dr. Bucksbaum stated that Claimant’s low back injury was mechanical and that the musculature system problem was affecting the ligaments in her back. He stated that these types of injuries to the low back comprise about 85% of his practice. He found nothing abnormal or atypical or unreasonable about the Claimant’s treatment for her back. Dr. Bucksbaum also stated that permanent impairments can arise from mechanical low back pain.
31. Dr. Bucksbaum and Robert Davidson both found Claimant’s medical end result for her low back injury to be August 26, 2006. Dr. Bucksbaum testified in detail about how he determined, using the current AMA Guides that Claimant had a 5% permanent impairment from her back injury.
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32. Attorney’s fees for Claimant were requested in the amount of 160 hours at $90.00 per hour. Defendant objected that some of Claimant’s attorney’s fees appeared to be “blocked billed”. Although the defense attorney argues that some of the matters billed for were not disputed issues by the time the case got to hearing, they still had to be dealt with until resolved. After reviewing the Claimant’s attorney’s billing submission in detail and in consideration of the fact that the bill had voluntarily been reduced, the Department finds the bill is reasonable and necessary in this case. Para-legal billing of 11 hours at $60.00 per hour is also found reasonable and necessary. Although the Claimant requested $65.00 per hour, Workers’ Compensation Rules cap para-legal hours at $60.00 per hour.
33. Claimant’s attorney submitted a bill for costs in the amount of $7,476.18. Defendant objected to this amount both on the issue of whether the costs were necessary and that some exceeded the amount allowable under Department rules. Department rules allow medical professionals to be paid at the rate of $300.00 for the first hour with an additional $75.00 for every 15 minute time period. Thus, two hours of medical testimony would be paid at the rate of $600.00. Claimant’s bills for Dr. Bucksbaum exceed this rate. Claimant’s attorney needs to adjust his costs to reflect Department Rule 40. The other costs are determined reasonable and necessary.
CONCLUSIONS OF LAW:
1. It is uncontested that Claimant suffered a compensable injury to her back on October 7, 2005. However, Defendant is contesting treatment of Claimant’s back and permanency after Dr. Boucher found her at medical end result on June 14, 2006 with no permanent impairment.
2. Defendant is also contesting any benefits for Claimant’s alleged knee injury. On June 15, 2006, Dr. Boucher found no objective evidence of Claimant’s knee injury. Dr. Boucher opined that to the extent Claimant had a knee injury; it was resolved by June 15, 2006.
3. In Workers’ Compensation cases, the Claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v Fairbanks, 123 Vt. 161 (1962). Once an injury has been accepted as an employment injury, however, the defendant then bears the burden of proof to show subsequent injury-related treatments are not reasonable and necessary under 21 V.S.A. § 640(a). See, e.g. J.C. v. Eveready Battery Co., Op. No. 12-07WC (April 3, 2007).
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4. In the instant case, the medical opinions are conflicting. To evaluate the expert evidence and choose between conflicting expert opinions, the Department traditionally looks to 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).
5. The medical experts in this case that determined Claimant’s knee injury to be work related are primarily her treatment provider, Robert Davidson, Dr. Joseph Abate and Independent Medical Examiner, Dr. Mark Bucksbaum. Robert Davidson, PA-C was Claimant’s medical provider for approximately ten years and knew her medical history as well as her current medical problems. Dr. Bucksbaum’s qualifications are well documented in the findings of fact. Dr. Abate, an orthopedic surgeon, operated on the claimant’s knee which resolved her knee problems. The only physician who disagreed was Dr. Robert Boucher, a medical examiner hired by the Defendant, who found the knee injury was not work related. Dr. Boucher has excellent credentials. However, in this case, Dr. Boucher did not spend as much time with the Claimant as the other experts did, he did not have all the medical records and did not review the MRI of the Claimant’s knee. He was also the only medical expert who saw the Claimant only a week after she had been given an injection for her pain that may have masked some of her symptoms. Dr. Boucher had placed Claimant at medical end result prior to her knee surgery and physical therapy.
6. Therefore, based on all of the evidence, the medical expert’s testimony and their qualifications as well as their relationship with the Claimant, the Department determines that the Claimant’s knee injury was compensable and the date of medical end result for her knee was May 18, 2007. The Claimant is found to have been totally disabled from work from the date of her right knee surgery by Dr. Abate on October 12, 2006 until May 18, 2007. All of the treatments for Claimant’s right knee are determined reasonable and necessary as testified by Dr. Mark Bucksbaum who was found to be the most persuasive on this issue. Claimant is also determined to have a 5% permanent impairment rating for her right knee as Dr. Bucksbaum determined based on the current AMA Guidelines.
7. The defendant did not meet his burden of proof regarding the medical end result date for the Claimant’s low back or her permanency rating. Dr. Boucher found medical end result at June 14, 2006. Claimant’s treatment provider and medical expert were found more credible regarding the reasonableness and necessity of further treatments for Claimant’s back. This is particularly true when combined with Dr. Monsey and Dr. Borrello’s assessments. Medical end result is found to have been achieved for Claimant’s back on August 26, 2006. The department also finds Dr. Bucksbaum’s determination of 5% permanency more persuasive than Dr. Boucher’s 0% finding for all of the reasons previously stated.
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ORDER
Based on the foregoing findings of fact and conclusions of law, Defendant is ORDERED to pay:
1. Temporary Total Disability Benefits from the October 12, 2006 until May 18, 2007 for Claimant’s right knee injury,
2. Medical benefits for Claimant’s right knee from October 12, 2006 through May 18, 2007.
3. Medical Benefits for Claimant’s low back from June of 2006 until August 26, 2006,
4. Partial Permanency Disability in the amount of 5% of the whole person for Claimant’s right knee,
5. Partial Permanency Disability in the amount of 5% for the whole person for the Claimant’s lower back injury,
6. Attorney’s fees for 160 hours at $90.00 per hour and para-legal fees for 11 hours at $60.00 per hour which were found reasonable and necessary,
7. Costs in the amount of $ 7,476.18 minus expert fees adjusted in accord with Department Rule 40.
DATED at Montpelier, Vermont this 4th 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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