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

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Pamela (Barrett) Simmons v. Landmark College Inc. (February 28, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Pamela (Barrett) Simmons Opinion No. 07-13WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Landmark College, Inc.
For: Anne M. Noonan
Commissioner
State File No. W-59833
OPINION AND ORDER
Hearing held in Montpelier, Vermont on March 1, 2012
Record closed on January 7, 2013
APPEARANCES:
Thomas Bixby, Esq., for Claimant
Bonnie Shappy, Esq., for Defendant
ISSUE PRESENTED:
Did Claimant’s May 2011 cervical surgery constitute reasonable medical treatment for her compensable March 2005 work injury?
EXHIBITS:
Joint Exhibit I: Medical Records
Claimant’s Exhibit 1: First Report of Injury
Claimant’s Exhibit 2: Agreement for Permanent Partial Disability Compensation (Form 22)
Claimant’s Exhibit 3: Ergonomic Work Site Evaluation, February 11, 2008
Claimant’s Exhibit 7: Letter from Attorney Bixby to Claimant, August 18, 2011
Claimant’s Exhibit 8: Summary of invoices from Attorney Bixby, July 31, 2011
Claimant’s Exhibit 9: Handwritten notes taken by Dr. Wieneke
Claimant’s Exhibit 10: Dr. Magnadottir deposition, September 14, 2012
Defendant’s Exhibit A: Curriculum vitae, Dr. Wieneke
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CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Medical benefits pursuant to 21 V.S.A. §640(a)
Vocational rehabilitation benefits pursuant to 21 V.S.A. §641
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
RULING ON POST-HEARING MOTIONS:
Motion to Strike Dr. Wieneke’s Post-Hearing Report
Because Claimant’s expert witness, Dr. Magnadottir, was not available to testify at the formal hearing, Defendant agreed to present its own expert witness, Dr. Wieneke, out of turn, with the proviso that he be allowed an opportunity to comment on Dr. Magnadottir’s testimony once her deposition was proffered post-hearing. Claimant asserts that the written report in which he did so merely restated his hearing testimony and therefore should be stricken as irrelevant. I disagree. The report contained opinion evidence germane to Dr. Magnadottir’s testimony. Claimant’s Motion to Strike is DENIED.
Motion for Directed Verdict
Claimant filed a motion for directed verdict on the issue of causal relationship. A motion for directed verdict was a form of pleading under both the civil and criminal rules of procedure. It has since been abolished and replaced, in the civil context with a Motion for Judgment as a Matter of Law, V.R.C.P. 50(a), and in the criminal context with a Motion for Judgment of Acquittal, V.R.Cr.P. 29. The purpose of such motions is to remove a case from consideration by a jury in situations where judgment for the moving party is required as a matter of law. Where there is no jury, as is the case in administrative proceedings such as this one, a post-hearing motion for judgment serves no purpose. Claimant’s Motion for Directed Verdict is therefore DENIED.
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim as well as the Commissioner’s prior decision in this claim, Barrett-Simmons v. Landmark College, Inc., Opinion No. 35-10WC (November 16, 2010). In addition, judicial notice is taken of the December 9, 2010 vocational rehabilitation report prepared by Claimant’s vocational rehabilitation counselor, Jay Spiegel.
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Claimant’s Work Injury and Prior Medical History
3. Claimant worked for Defendant as a housekeeper. On March 18, 2005 she slipped and fell on a wet floor. Claimant injured her neck and right shoulder in the fall. Defendant accepted this injury as compensable and paid workers’ compensation benefits accordingly.
4. Over the course of the next three years Claimant underwent three surgeries, including fusions at two cervical spine levels. Unfortunately, all of these surgeries failed. Her symptoms, which include pain, muscle spasms and limited range of motion in her neck and right shoulder, have persisted.
5. Following her third surgery, in February 2009 Claimant’s treating neurosurgeon, Dr. Magnadottir, determined that she had reached an end medical result. The Department later approved the parties’ proposed Agreement for Permanent Partial Disability Compensation (Form 22), by the terms of which Claimant received compensation for a 23.5 percent whole person permanent impairment referable to her cervical spine. The compensable injury was described in the Agreement as “right shoulder/upper back, C4-7.”
Claimant’s Fourth Cervical Surgery
6. In February 2011 Claimant returned to Dr. Magnadottir for another neurosurgical consult. She reported that over the course of the prior year her neck pain had been constant and her right shoulder pain had worsened. In addition, her symptoms now involved her right hand. Claimant described dropping things, making messes and burning her right hand while cooking. She had not suffered any new injuries, falls or motor vehicle accidents to account for these new and/or worsening symptoms.
7. Dr. Magnadottir’s physical examination revealed that Claimant exhibited symmetric motor function (except for some give-way weakness in the right deltoid) and symmetric reflexes and sensation, but a substantial amount of myofascial pain1 and tenderness bilaterally in the trapezoids and rhomboids. A review of Claimant’s cervical spine and right shoulder MRI at this office visit showed tendonitis and significant narrowing of the C5 foramen.
8. Dr. Magnadottir discussed Claimant’s potential treatment options with her. These included exercises, physical therapy and surgery. Claimant took some time to decide, and ultimately chose to pursue surgery. Once her decision was made, Dr. Magnadottir described Claimant as being “very strong” in her desire to proceed in this manner. I find that Claimant elected surgical treatment with full knowledge and understanding that it would not alleviate her major complaint of persistent myofascial right shoulder pain.
1 Myofascial pain is muscular pain that is very non-specific and difficult to diagnose. It is a non-radicular pain that does not follow a nerve root pattern. The affected muscle often has “trigger points,” that is, hyper-irritable spots and associated palpable nodules in skeletal muscle.
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9. In May 2011, Claimant underwent the fourth surgery, a procedure to decompress the C5 nerve root. As expected, the surgery did not alleviate the persistent myofascial pain in her right shoulder. The symptoms in her right hand have abated, though it is unclear why. Medically, there is no reason why nerve compression at the C5 level would have resulted in the symptoms Claimant reported, and therefore no reason why surgical decompression would have caused them to resolve.
Expert Medical Opinions
(a) Dr. Magnadottir
10. Dr. Magnadottir testified by deposition. She is a board certified neurosurgeon. She performed Claimant’s third cervical surgery in 2009, and her fourth surgery (the subject of the pending compensability dispute) in May 2011. In formulating her opinion as to the reasonableness of the latter surgery, Dr. Magnadottir did not review Claimant’s entire medical history, but rather relied on her knowledge of Claimant’s condition since she began treating her.
11. In Dr. Magnadottir’s opinion, Claimant’s May 2011 surgery was causally related to her compensable work injury. Claimant suffered from disc disease at the C5, C6 and C7 levels, and had undergone cervical fusion at the C5-6 level. According to the accepted medical literature, disc disease in one joint significantly contributes to the development of disc disease in adjacent joints as well.
12. As to the medical necessity of a fourth surgery, Dr. Magnadottir relied primarily on the fact that Claimant’s recent MRI showed her C5 foramen to be significantly narrowed. With this finding in mind, Dr. Magnadottir anticipated that repeat surgery at that level might relieve at least some of Claimant’s pain. However, Dr. Magnadottir did not refer Claimant for electrodiagnostic studies in order to determine whether there were objective signs of nerve damage at C5. Nor did she recommend that Claimant undergo diagnostic epidural injections in the C5 root, to see if she would experience any relief from pain at this root level. Dr. Magnadottir reasoned that even if there was relief, it would be short lived.
13. Dr. Magnadottir acknowledged that the May 2011 surgery would not address the persistent myofascial pain in Claimant’s right shoulder. She also acknowledged that Claimant’s pain complaints were all subjective in nature. Last, Dr. Magnadottir acknowledged that damage to the C5 nerve root would not in any way manifest itself in the type of hand symptoms Claimant was reporting. I find that these facts significantly undermine Dr. Magnadottir’s opinion that Claimant’s May 2011 surgery constituted reasonable and necessary medical treatment.
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(b) Dr. Wieneke
14. At Defendant’s request Dr. Wieneke, a board certified orthopedic surgeon, performed an independent medical examination of Claimant for the purpose of determining whether a fourth surgery would have constituted reasonable treatment for her 2005 work injury. Dr. Wieneke had evaluated Claimant previously and therefore was familiar with her medical history.2 Before performing his most recent examination, Dr. Wieneke also reviewed all of Claimant’s past and current medical records.
15. In Dr. Wieneke’s opinion, Claimant’s fourth surgery did not constitute reasonable and necessary medical treatment. He based this opinion on the following:
• Prior to 2011, all of Claimant’s EMG studies were negative, indicating no C5 nerve root damage that would warrant surgery;
• There was no current electrodiagnostic evidence of radiculopathy to confirm Claimant’s current complaints of pain;
• Claimant’s give-way weakness in her right deltoid was a Waddell sign, which suggested a psychological component to her pain complaints;
• The C5 nerve root distribution does not manifest itself in the hand, and therefore damage or compression at that level would not explain Claimant’s most recent symptoms; and
• Claimant had already undergone three major cervical surgeries with virtually no improvement and little likelihood of success with a fourth surgery.
16. I find Dr. Wieneke’s review and knowledge of Claimant’s medical condition extensive and his opinions well supported by objective evidence.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2 Dr. Wieneke evaluated Claimant’s case on four different occasions. He performed independent medical examinations of Claimant in 2006, 2009 and October 2011. He performed a records review in May 2011.
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2. At issue here is whether Claimant’s May 2011 surgery is compensable. Vermont’s workers’ compensation statute obligates an employer to pay only for those medical treatments that are determined to be both “reasonable” and causally related to the compensable injury. 21 V.S.A. §640(a); MacAskill v. Kelly Services, Opinion No. 04-09WC (January 30, 2009). The commissioner has discretion to determine what constitutes “reasonable” medical treatment given the particular circumstances of each case. Id. A treatment can be unreasonable either because it is not medically necessary or because it is not related to the compensable injury. Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January 20, 2011).
3. Here, the condition for which Claimant sought surgery in 2011 involved significant narrowing of her C5 foramen and persistent right shoulder pain. Both of these conditions were well within the terms of the approved Form 22 agreement pursuant to which Defendant paid permanency benefits in 2009. Claimant did not suffer any other injuries subsequently, such as a motor vehicle accident or new slip and fall incident, that might account for her ongoing and/or worsening symptoms. Considering all of the credible evidence, I conclude that the neck and right shoulder pain for which she sought additional treatment in 2011 was causally related to her accepted work injuries.
4. Having concluded that Claimant’s need for ongoing treatment is causally related to her compensable work injuries, I next consider whether the treatment at issue was medically necessary. This determination is based on evidence establishing the likelihood that it would improve the patient’s condition, either by relieving symptoms and/or by maintaining or increasing functional abilities. Cahill v. Benchmark Assisted Living, Opinion No. 13-12WC (April 27, 2012); Quinn v. Emery Worldwide, Opinion No. 29-00WC (September 11, 2000).
5. Conflicting medical testimony was offered as to the reasonableness of Claimant’s fourth cervical surgery. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
6. Here, based primarily on the second and third factors, I conclude that Dr. Wieneke’s opinion was more persuasive than Dr. Magnadottir’s. Dr. Wieneke had the advantage of reviewing Claimant’s entire medical history. More important, his opinions were clear, thorough and corroborated by objective evidence. Given that (1) the C5 nerve root distribution does not manifest itself in the hand; (2) no objective tests were performed to identify the C5 level as the pain generator for Claimant’s complaints; and (3) surgery clearly would not relieve the myofascial pain in Claimant’s shoulder, Dr. Wieneke credibly concluded that surgery was not a reasonable treatment option for the symptoms of which she complained. The fact that Claimant already had undergone three failed surgeries with no significant pain relief was a strong contraindication as well.
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7. In contrast, given both Claimant’s medical history and the nature of her ongoing complaints, Dr. Magnadottir failed to explain adequately why a fourth surgery was justified.
8. I conclude that Claimant has failed to sustain her burden of proving that her May 2011 cervical surgery constituted reasonable medical treatment, such that Defendant should be obligated to pay for it. Therefore, her claim for workers’ compensation benefits must fail.
9. As Claimant has failed to prevail on her claim for benefits, she is not entitled to an award of costs or attorney fees.
ORDER:
Based on the foregoing Findings of Fact and Conclusions of Law, Claimant’s claim for workers’ compensation benefits referable to her May 2011 cervical surgery is hereby DENIED.
DATED at Montpelier, Vermont this 28th day of February 2013.
________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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

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

STATE OF VERMONT
DEPARTMENT OF LABOR

Retez Johnson Opinion No. 25-10WC

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

State File No. W-52247

OPINION AND ORDER

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

APPEARANCES:

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

ISSUE PRESENTED:

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

EXHIBITS:

Joint Exhibit I: Medical records

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

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

CLAIM:

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

FINDINGS OF FACT:

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

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

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

Claimant’s Prior Medical and Psychological History

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

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

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

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

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

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

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

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

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

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

Treatment Recommendation for Spinal Cord Stimulator

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

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

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

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

Expert Medical Opinions in Opposition to Spinal Cord Stimulator

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

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

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

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

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

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

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

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

CONCLUSIONS OF LAW:

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

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

3. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).

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

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

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

ORDER:

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

DATED at Montpelier, Vermont this _____ day of August 2010.

____________________
Valerie Rickert
Acting Commissioner

Appeal:

Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

 

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

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Linda Montague v. Tivoly Inc (September 22, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Linda Montague Opinion No. 28-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Tivoly, Inc.
For: Anne M. Noonan
Commissioner
State File No. Z-64639
OPINION AND ORDER
Hearing held in Montpelier, Vermont on April 21, 2011
Record closed on June 6, 2011
APPEARANCES:
Kelly Massicotte, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUE PRESENTED:
Was Claimant’s August 2010 fusion surgery reasonable, necessary and causally related to her January 31, 2008 work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Deposition of Hulda Magnadottir, M.D., April 13, 2011
(Curriculum vitae attached)
Claimant’s Exhibit 2: Compensation Agreements (Forms 21 and 22)
Defendant’s Exhibit A: Deposition of William Boucher, M.D., April 11, 2011
CLAIM:
All workers’ compensation benefits to which Claimant is deemed entitled as a consequence of her August 2010 fusion surgery;
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
Claimant’s January 2008 Fall, Prior Medical History and Course of Treatment
3. Claimant worked for Defendant as a machinist. As she was leaving work on January 31, 2008 she slipped on some icy outside stairs. Her feet came out from under her and she fell to the ground, landing on her back. Claimant injured her neck and left shoulder in the fall.
4. Defendant accepted Claimant’s injury as compensable and began paying workers’ compensation benefits accordingly.
5. As a result of her injury Claimant experienced severe neck pain and stiffness, with extremely limited range of motion. The pain radiated into the top of her left shoulder and between her shoulder blades. She experienced debilitating headaches as well.
6. Claimant’s prior medical history is significant for a two-level (C5-C7) cervical fusion following a motor vehicle accident some 20 years ago. More recently, in 2005 Claimant underwent surgery to repair a left rotator cuff tear following a work-related shoulder injury. Claimant fully recovered from both of these injuries and was experiencing no residual symptoms in either her neck or her left shoulder at the time of the January 2008 fall. Claimant also had a prior history of migraine headaches, most likely related to hormonal changes. Prior to her fall, these occurred on a monthly basis and were well controlled with medication.
7. Initially Claimant treated conservatively for the symptoms related to her January 2008 fall. She underwent a series of injections, but these were largely ineffective. Thereafter, Claimant underwent two surgical consultations, one with Dr. Braun, an orthopedic surgeon, and one with Dr. Ball, a neurosurgeon. Both doctors reviewed Claimant’s diagnostic imaging studies, which showed degenerative changes both above and below the level of her prior fusion but no clear evidence of spinal stenosis, or narrowing of the spinal canal. Nor did Claimant’s clinical examination reveal any signs of radiculopathy, such as asymmetric reflexes, decreased strength or sensory deficits in a dermatomal pattern. Lacking what they considered to be definitive evidence indicative of nerve root involvement, both doctors recommended against surgery as a treatment option.
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8. Surgical treatment options having apparently been eliminated, in July 2009 Claimant participated in a three-week intensive functional restoration program at Dartmouth Hitchcock Medical Center (DHMC). Claimant experienced improvements in both her physical capacity and her pain levels as a result of that program. She was less depressed, and less reliant on narcotic pain medications for symptom relief. Functionally, however, even after completing the program Claimant still was unable to meet her goals for vocational, recreational and daily living activities. Her pattern of neck pain radiating into the top of her left shoulder was relatively unchanged as well.
9. On September 11, 2009 Dr. Hazard, the doctor who had supervised Claimant’s participation in the DHMC functional restoration program, determined that she had reached an end medical result. Dr. Hazard rated Claimant with a 15% permanent impairment referable to her cervical spine as a result of her January 2008 work injury. In February 2010 the Department approved the parties’ Agreement for Permanent Partial Disability Compensation (Form 22) to that effect.
10. Over the ensuing months Claimant’s symptoms worsened. Her neck and shoulder pain continued, her headaches became constant and she spent much of her day in bed.
Dr. Magnadottir
11. At Claimant’s request, in March 2010 her primary care provider referred her to Dr. Magnadottir, a board certified neurosurgeon, for another opinion as to whether surgery might yet be an appropriate treatment option for her ongoing symptoms. Fusion surgeries are a routine aspect of Dr. Magnadottir’s practice; she estimates that she has performed approximately 1,000 such operations over the course of her career, at the rate of about 100 annually.
12. Based on her clinical exam findings, Dr. Magnadottir suspected that there was both a radicular and a myofascial component to Claimant’s pain presentation. The myofascial component stemmed from muscle tightness and spasms in her neck and between her shoulder blades, and would not be relieved by surgery. The radicular component seemed to stem from a bone spur that appeared on MRI to be impinging on Claimant’s C5 nerve root. If so, surgery might well be indicated to relieve at least some of her neck pain, as well as the radiating pain across the top of her left shoulder. The latter pain Claimant described as being particularly bothersome.
13. A diagnostic injection confirmed Dr. Magnadottir’s suspicions as to the radicular component of Claimant’s pain. Thereafter, on August 4, 2010 Dr. Magnadottir surgically decompressed Claimant’s C5 nerve root and fused her C4-5 vertebrae. Among her surgical findings, Dr. Magnadottir observed that a fragment of the bone spur she had viewed on MRI was actually dislocated, and that this was what was impinging on Claimant’s C5 nerve root. To a reasonable degree of medical certainty, Dr. Magnadottir concluded that although the bone spur itself likely preexisted, the dislocated fragment probably occurred as a result of Claimant’s January 2008 fall. In her view, the symptoms that followed, and the surgery necessitated to alleviate them, were therefore causally related to that work injury. I find this reasoning to be persuasive.
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14. As Dr. Magnadottir predicted, since the surgery Claimant’s radicular symptoms have largely resolved, particularly the pain across the top of her left shoulder. Her cervical range of motion has improved, and her headaches are no longer constant and persistent. She no longer requires narcotic medications for pain relief, and takes muscle relaxants only occasionally. Her activity level, though still quite limited by muscle-related pain and stiffness in her neck and shoulder blades, is noticeably improved as well.
15. Dr. Magnadottir determined that Claimant had reached an end medical result from her fusion surgery as of the date of her last office visit, February 23, 2011.
16. Based on the particular location of the nerve compression she viewed during surgery, Dr. Magnadottir discounted degenerative changes as the cause of Claimant’s more recent symptoms. In her opinion, furthermore, degenerative changes alone would not have caused the bone spur to fracture and dislocate as it did. I find this reasoning to be credible.
Dr. Boucher
17. At Defendant’s request, in May 2010 Claimant underwent an independent medical examination with Dr. Boucher, a board certified occupational medicine specialist. Dr. Boucher reviewed Claimant’s medical records and conducted a physical examination. From this he concluded that Claimant likely suffered a cervical strain as a result of her January 2008 fall at work.
18. Dr. Boucher strongly disagreed with Dr. Magnadottir’s decision to treat Claimant’s symptoms surgically. He believed it “quite clear” that Claimant’s condition was entirely musculoskeletal, not radicular, in origin. Citing to treatment guidelines issued by the American College of Occupational and Environmental Medicine, and lacking what he considered to be any evidence indicative of nerve root involvement, Dr. Boucher asserted that fusion surgery was neither reasonable nor necessary in Claimant’s case.
19. Dr. Boucher acknowledged that had there been evidence of developing radiculopathy, then the fusion surgery Dr. Magnadottir performed would have been medically appropriate. Even in that circumstance, however, Dr. Boucher would attribute the cause of such radiculopathy to the degenerative changes in Claimant’s cervical spine, not to her January 2008 fall at work. As noted above, however, the specific location of the nerve compression that Dr. Magnadottir observed during surgery makes this unlikely.
20. I find that Dr. Magnadottir effectively refuted the premise upon which Dr. Boucher’s conclusion was based. In her experience, quite often patients present with a pure radicular pain syndrome, without any accompanying sensory changes or motor dysfunction. The fact that a patient fails to exhibit signs of more severe nerve damage – strength deficits or numbness in a dermatomal pattern, for example – does not negate a finding of radiculopathy. In Claimant’s case, Dr. Magnadottir sufficiently established the presence of radiculopathy pre-operatively by other means, including both clinical and diagnostic testing, and then later confirmed it in her surgical findings.
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21. The fact that since her fusion surgery Claimant has experienced significant improvement in the symptoms that Dr. Magnadottir identified as radicular in nature also undermines Dr. Boucher’s conclusion that her condition was entirely musculoskeletal. Dr. Boucher predicted that Claimant’s neck pain would not improve with fusion surgery, and that her range of motion would worsen. In fact, however, as Claimant credibly testified and as Dr. Magnadottir’s notes corroborate, the opposite has occurred.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The disputed issue presented here is whether Claimant’s August 2010 fusion surgery is compensable. Vermont’s workers’ compensation statute obligates an employer to pay only for those medical treatments that are determined to be both “reasonable” and causally related to the compensable injury. 21 V.S.A. §§618, 640(a); Lackey v. Brattleboro Retreat, Opinion No. 15-10WC (April 21, 2010). The Commissioner has discretion to determine what constitutes reasonable medical treatment given the particular circumstances of each case. Id. A treatment can be unreasonable either because it is not medically necessary or because it is not related to the compensable injury. Id.; Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January 20, 2010).
3. Conflicting medical testimony was offered as to the reasonableness of Claimant’s fusion surgery. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
4. Here I conclude that Dr. Magnadottir’s opinion was more credible than Dr. Boucher’s. With her experience in evaluating and treating patients with complaints such as Claimant’s, Dr. Magnadottir was better positioned to discern the possibility that at least some of Claimant’s symptoms were radicular in origin. The conclusions she drew from Claimant’s clinical exam and diagnostic studies were confirmed by her surgical findings and therefore objectively supported. That Claimant improved thereafter provides further corroboration.
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5. I also conclude that Dr. Magnadottir’s analysis of the causal relationship between Claimant’s January 2008 work injury and her developing radiculopathy was more persuasive than Dr. Boucher’s. Again, Dr. Magnadottir’s surgical findings effectively discounted degenerative changes alone as the cause of Claimant’s condition, and instead pointed to her work-related fall as the inciting factor.
6. I conclude that Claimant’s August 2010 fusion surgery was both medically necessary and causally related to her compensable work injury. It therefore constitutes reasonable medical treatment, for which Defendant is obligated to pay all associated medical and indemnity benefits.
7. As Claimant has prevailed on her claim for benefits, she is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit her itemized claim.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. All workers’ compensation benefits to which Claimant proves her entitlement as causally related to her August 2010 fusion surgery; and
2. Costs and attorney fees in amounts to be determined, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 22nd day of September 2011.
________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Brad Bowen v. Ethan Allen Inc (October 23, 2012)

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

Brad Bowen v. Ethan Allen Inc (October 23, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Brad Bowen Opinion No. 26-12WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Ethan Allen, Inc.
For: Anne M. Noonan
Commissioner
State File Nos. J-04270 and P-02005 OPINION AND ORDER
Hearing held in Montpelier, Vermont on August 10, 2012
Record closed on September 13, 2012
APPEARANCES:
Steven Robinson, Esq., for Claimant
Corina Schaffner-Fegard, Esq., for Defendant
ISSUE:
Is the proposed permanent implantation of a spinal cord stimulator reasonable medical treatment for Claimant’s work related injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Dr. Rehman deposition, July 26, 2012 (with attached exhibits)
Claimant’s Exhibit 2: Letter from Dr. Zweber, July 20, 2012
Claimant’s Exhibit 3: Letter from Dr. Moreland, August 3, 2012
Defendant’s Exhibit A: Dr. Binter addendum, July 25, 2012
Defendant’s Exhibit B: Turner, J., et al., Spinal cord stimulation for patients with failed back syndrome or complex regional pain syndrome: a systematic review of effectiveness and complications, Pain, 2004; 108:137-147
Defendant’s Exhibit C: Turner, et al., Spinal cord stimulation for failed back surgery syndrome: Outcomes in a workers’ compensation setting, Pain, 2010; 148(1):14-25
Defendant’s Exhibit D: Letter from Dr. Drukteinis, July 31, 2012
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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 his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant started work for Defendant in 1994 as a rip saw operator. The nature of this job required him to bend and twist while he was lifting planks of lumber to place on the saw.
4. Over the course of time Claimant began to develop low back pain, for which he ultimately sought treatment in July 1995. No single incident or event caused his pain to develop; rather, it was a gradual onset injury. Defendant accepted this injury as compensable and paid workers’ compensation benefits accordingly.
Claimant’s Course of Treatment
5. Claimant began treating with Dr. Birge, an osteopath at the Northeast Kingdom Health Center, in July 1995. He diagnosed Claimant with low back pain of neuromuscular origin. Over the course of the summer and fall, Claimant’s treatment consisted of medications and physical therapy. Dr. Birge thought depression played a significant role in Claimant’s discomfort. He treated Claimant with psychotropic drugs for both pain and depression.
6. In December 1995 Claimant underwent an MRI that revealed a herniated disc. As a result of these findings, Dr. Phillips performed an L5-S1 discectomy in April 1996. Claimant reported that this surgery was successful.
7. After this initial surgery, Claimant was referred to physical therapy. Initially he attended and participated, but he did not complete the course as directed. Over the ensuing year and a half, his medical professionals encouraged him to participate in physical therapy and a work hardening program, as he could not tolerate his job requirements and was deconditioned. Claimant did not follow these recommendations.
8. From May through September 2003 Claimant underwent several epidural steroid injections, a lumbar facet joint block and radiofrequency ablation, none of which yielded significant relief of his low back pain. This conservative treatment having failed, in January 2005 he underwent additional surgery, again at L5-S1 but this time performed by Dr. Abdu.
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9. Post surgery, Dr. Abdu referred Claimant to physical therapy in February 2005. It is apparent from Dr. Abdu’s March 2005 office note that Claimant participated, but the medical record is silent as to whether he successfully completed this course of therapy.
10. Claimant began treating with Dr. Rehman in October 2008. Dr. Rehman is board certified in physical and rehabilitation medicine as well as pain medicine. Initially he prescribed Neurontin and Celebrex to address Claimant’s pain. Claimant reported that these medications helped him manage his pain and improve his quality of life, with minimal side effects. Throughout 2009, Dr. Rehman also administered a series of epidural steroidal injections and lumbar facet blocks, but Claimant did not derive any substantial pain relief from these procedures.
11. In May 2010 Claimant underwent a third surgery at L5-S1, this time a decompression and fusion performed by Dr. Haycook, an orthopedic surgeon. Thereafter, he reported that his left leg pain had significantly improved. In July 2010 Dr. Haycook’s physician’s assistant wanted to transition him to work conditioning. Claimant did participate in physical therapy, although once again he did not complete the entire prescribed course. Claimant also discontinued his use of both Neurontin and Celebrex during this time, though no doctor had recommended that he do so.
12. In June 2011 Dr. Haycook placed Claimant at end medical result with respect to his surgical care and referred him back to Dr. Rehman for further pain management, including a possible spinal cord stimulator trial.
13. With Dr. Rehman, Claimant underwent additional lumbar facet blocks, lumbar hardware blocks and radiofrequency ablation. He experienced some transient relief from these procedures, but did not achieve sustained pain relief. As Dr. Rehman felt he had exhausted all conservative measures, in March 2011 he recommended that Claimant undergo a spinal cord stimulator trial to address his unresolved pain.
14. In April 2012 Claimant underwent the spinal cord stimulator trial. Subsequently he reported that his low back pain had improved by 70 percent, and his left leg pain by 50 percent. Given these results, Dr. Rehman recommended that the spinal cord stimulator be permanently implanted.
Claimant’s Current Status
15. Claimant is currently 37 years old. He has not been employed since his January 2010 fusion surgery. He was released to return to work full-time, full duty in October 2010, but his then-employer wanted him to undergo a functional capacity evaluation.
16. In May 2011 Claimant completed a functional capacity evaluation. He was credible when he stated he gave his full effort during the evaluation. Claimant demonstrated a work capacity in the heavy physical demand category as to both lifting and carrying. Specifically, he was able to lift 70 pounds occasionally and carry 50 pounds occasionally. Leaning forward from the waist caused him the most pain. Even with that, he reported that during the evaluation his pain level did not exceed a two on a ten-point analog scale.
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17. During the course of a typical day Claimant does housework, walks the family dog several times and reads.
18. Claimant credibly stated that when Defendant’s attorney deposed him in conjunction with the pending claim, his pain level at the end was a two out of ten. The record does not indicate for how long his deposition lasted. Nevertheless, it is reasonable to assume from this experience that he is capable of sitting for some length of time without suffering any increase in symptoms or pain.
19. As to the possibility of treating his pain with a spinal cord stimulator, Claimant credibly testified as follows:
• While undergoing the trial implantation, his pain did not exceed a two out of ten;
• He understands that a permanently implanted stimulator likely will limit his ability to function in some respects;
• He understands that his body may reject the device and that it may not be successful, but he wants to pursue permanent implantation anyway; and
• His goal for this treatment is to reduce his pain, hopefully to a level where he will no longer require narcotic pain medications. This will enable him to work as a truck driver.
Expert Medical Opinions
20. All of the medical experts in this case agree that Claimant suffers from failed back syndrome.
(a) Dr. Rehman
21. Dr. Rehman has been conducting spinal cord stimulator trials for at least the past four years. When he refers a patient for spinal cord stimulator implantation, his purpose is to improve the patient’s functionality and ability to perform activities of daily living. Though he has not undertaken any formal statistical analysis, anecdotally Dr. Rehman estimates that approximately 90 percent of his trial stimulator patients have realized success with permanent implantations as well.
22. In Dr. Rehman’s opinion, Claimant is a good candidate for a permanently implanted stimulator. This is because (a) he has had two spine surgeries, yet his back pain continues to affect his life; (b) his pain is not biomechanical and is not originating either from the facet joints or from any surgical hardware; and (c) his stimulator trial successfully reduced his pain.
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23. Dr. Rehman concluded that permanent implantation of a spinal cord stimulator is medically necessary in Claimant’s case. In his opinion, Claimant has tried and failed all other conservative treatments, including medications, steroid injections, nerve blocks and surgeries. According to Dr. Rehman, Claimant has reached the option of last resort, therefore. However, Dr. Rehman does not address the fact that Claimant has never undergone a complete course of physical therapy, particularly one that focuses on active core strengthening, nor has he attempted a functional restoration program. I find this omission troublesome.
(b) Dr. Zweber
24. Dr. Zweber specializes in orthopedic and physical and rehabilitative medicine. At Claimant’s request he performed a medical records review in July 2012. He reviewed all of the pertinent records prior to rendering his opinions.
25. In Dr. Zweber’s opinion, in specific circumstances spinal cord stimulators are reasonable and necessary treatment for failed back syndrome. In this case, Dr. Zweber believes that Claimant has reasonable expectations of the stimulator’s potential outcomes, and is focusing not just on pain relief but also on improved functioning. The fact that the trial implantation was successful makes permanent implantation even more reasonable. For these reasons, according to Dr. Zweber the stimulator is a reasonable and necessary treatment option for Claimant to pursue.
26. In forming their opinions as to the medical necessity of a permanently implanted stimulator, neither Dr. Rehman nor Dr. Zweber appears to have considered the fact that Claimant already is capable of functioning at a relatively high physical demand level, as evidenced by his May 2011 functional capacity evaluation. Nor do they seem to have accounted for the fact that he consistently has reported his pain level as only a two out of ten on an analog pain scale. With these considerations in mind, it is difficult for me to comprehend how much positive gain they reasonably believe Claimant will realize from a permanently implanted stimulator.
(c) Dr. Binter
28. Dr. Binter is a board certified neurological surgeon. At Defendant’s request, in June and July 2012 she reviewed Claimant’s medical records. Later, she reviewed both his and Dr. Rehman’s depositions as well. Dr. Binter did not examine Claimant.
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29. In Dr. Binter’s opinion, a permanently implanted spinal cord stimulator is neither reasonable nor necessary treatment for Claimant’s work-related injury. She based this opinion in part on the fact that he has not yet exhausted all conservative treatment options for his low back pain, such as:
• Replacing his current opiate medications, which become less effective the longer they are used, with Neurontin and Celebrex, both of which were effective for him in the past, and possibly methadone or buprenorphine as well;
• Engaging in active physical therapy, to include weight training and a functional restoration program, which will improve his core strength and spine stability; and
• Removing the hardware at the L5-S1 surgical site, which likely will ameliorate the pain he reports when bending forward at the waist.
30. Dr. Binter particularly questioned the utility of a spinal cord stimulator in Claimant’s case given that he already is functioning at a fairly high physical demand level. As she correctly observed, even during a rigorous functional capacity evaluation the highest pain level Claimant reported was only a two out of ten. A permanently implanted stimulator likely would reduce rather than increase that level of functionality.1
31. Finally, Dr. Binter concluded from her review of the medical literature that randomized, controlled studies of adequate duration have not shown spinal cord stimulators to be a safe and effective treatment for low back pain. What studies there are indicate that at best the devices are effective for only two years. In light of Claimant’s young age, in Dr. Binter’s opinion this is an insufficient benefit to justify the procedure. I find this rationale persuasive.
(d) Dr. Ensalada
32. Dr. Ensalada is board certified in anesthesiology and pain management. At Defendant’s request, he reviewed Claimant’s medical records in August 2011.
33. In Dr. Ensalada’s opinion, the implantation of a spinal cord stimulator is neither reasonable nor necessary medical treatment for Claimant’s work related injury. Scientific research has not yet established the devices to be safe and effective. What studies there are indicate that while stimulators might be effective at controlling radiating leg pain, they play no role in the treatment of low back pain. Yet Claimant’s primary complaint, as evidenced by Dr. Rehman’s treatment, has been low back pain, not radiating leg pain. For this reason, according to Dr. Ensalada, a permanently implanted stimulator is likely to be ineffective in Claimant’s case.
1 Dr. Binter did not explain in what manner a permanently implanted stimulator would reduce Claimant’s functional capacity. No contrary evidence was presented on this point, however, and Claimant testified that he understood this to be the case. With no reason to disbelieve Dr. Binter, I accept her conclusion in this regard as true.
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34. I find Dr. Ensalada’s opinion credible. Throughout the medical record, Claimant’s treatment has focused on low back pain, not leg pain. This is particularly true with respect to Dr. Rehman. As Dr. Ensalada correctly observed, all of the treatments Dr. Rehman has administered, including epidural steroid injections, hardware blocks and radiofrequency ablation, have been directed entirely at addressing Claimant’s low back pain, not his radiating left leg pain. This underscores the minor nature of the latter symptoms. Given that spinal cord stimulators have been shown to be less effective for low back pain, Dr. Ensalada’s conclusion that the device is not reasonable and necessary treatment for Claimant’s condition is persuasive.
Expert Psychological Opinions
(a) Dr. Moreland
35. Dr. Moreland, a psychologist, evaluated Claimant in June 2012 to determine whether from a psychological perspective he was an appropriate candidate for a permanently implanted spinal cord stimulator. As part of his evaluation, Dr. Moreland interviewed Claimant and also administered the Minnesota Multiphasic Personality Inventory-2 Restructured Form and the Battery for Health Improvement tests. Dr. Moreland later supplemented his report with a follow-up letter in August 2012.
36. In Dr. Moreland’s opinion Claimant is an appropriate candidate for a permanently implanted spinal cord stimulator. He did not exhibit excessive somatization or psychopathology that might interfere with the device’s utility, and responded positively to a trial implantation. In addition, he has a strong family support network and, except for his fusion surgery, successfully returned to work following previous treatments.
37. I find Dr. Moreland’s analysis persuasive. It is based both on personal observation and on standardized psychological testing.
(b) Dr. Drukteinis
38. Dr. Drukteinis is board certified in psychiatry and neurology. At Defendant’s request, he reviewed Claimant’s pertinent medical records in July 2012. Dr. Drukteinis’ review included Dr. Moreland’s June 2012 report, but not his August 2012 follow-up letter.
39. In Dr. Drukteinis’ opinion, Dr. Moreland did not screen Claimant adequately for psychiatric or psychological factors that might impede treatment for his physical condition. He took only a limited psychosocial history. Thus, he was unaware that as early as July 1995 Dr. Birge had determined that depression was playing a significant role in Claimant’s discomfort and therefore prescribed psychotropic drugs as part of his treatment plan. According to Dr. Drukteinis, had Dr. Moreland conducted a more thorough review of Claimant’s past physical and psychological history, he would have known this. As a consequence, during the course of his evaluation he might have questioned whether Claimant was being truthful when he denied any prior history of treatment for mental health issues.
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41. I do not find Dr. Drukteinis’ opinion persuasive. I find more convincing Claimant’s explanation for the omission – that he thought the medications Dr. Birge had prescribed were solely for pain and that he did not view himself as being depressed at the time. Dr. Moreland concurred with this analysis, and felt that Claimant’s failure to mention the issue during his interview with him was not significant.
42. Based on the evidence presented, I find that Claimant is an appropriate psychological candidate for a spinal cord stimulator. He does not suffer from any significant psychopathology and he has realistic expectations.
CONCLUSIONS OF LAW:
1. Vermont’s workers’ compensation statute obligates an employer to pay only for those medical treatments that are determined to be both “reasonable” and causally related to the compensable injury. 21 V.S.A. §640(a); MacAskill v. Kelly Services, Opinion No. 04-09WC (January 30, 2009). The Commissioner has discretion to determine what constitutes “reasonable” medical treatment given the particular circumstances of each case. Id. A treatment can be unreasonable either because it is not medically necessary or because it is not related to the compensable injury. Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January 20, 2010).
2. The treatment issue here revolves solely around the medical necessity question. The parties’ experts disagree whether surgical implantation of a spinal cord stimulator is medically appropriate treatment for Claimant’s work injury.
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. Based primarily on the third factor, I conclude here that Dr. Binter’s opinion is the most persuasive. Dr. Binter’s analysis was grounded in large part on Claimant’s objectively measured performance during his functional capacity evaluation. He demonstrated there that he was capable of functioning at a heavy physical demand level, with pain that did not exceed a two on a ten-point analog scale. With due regard for Claimant’s age, Dr. Binter also convincingly concluded that to implant a device that is likely to be effective for only two years is not justifiable, particularly where conservative treatment options, such as more active physical therapy and functional restoration, have not been fully exhausted. Considering these factors, Dr. Binter’s analysis was clearer, more thorough and better supported objectively than the analyses put forth by Claimant’s experts.
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5. I conclude that Claimant has failed to sustain his burden of proving that a permanently implanted spinal cord stimulator is likely either to relieve his most troublesome symptoms or to maintain or increase his functional abilities. The credible evidence, including Claimant’s own testimony, establishes that his pain level has remained relatively static, through both a rigorous functional evaluation and even a trial period with the stimulator. The determination whether a treatment is reasonable must be based primarily on evidence establishing the likelihood that it will improve the patient’s condition. Quinn v. Emery Worldwide, Opinion No. 29-00WC (September 11, 2000). I cannot conclude that the stimulator will likely achieve that result here.
6. Finally, citing Cahill v. Benchmark Assisted Living, Opinion No. 13-12WC (April 27, 2012), as support, Claimant argues that he should be able to direct his own treatment course when two equally reasonable options have been presented. That is, Claimant argues that permanently implanting a spinal cord stimulator is just as reasonable a treatment option as, for example, participating in an active core strengthening and/or functional restoration program might be. I disagree. The permanent implantation of a spinal cord stimulator is an invasive procedure. Claimant is a young man, and what research data there is suggests that the device likely will lose its effectiveness after two years. As compared with the option of undergoing conservative therapies that have not yet been fully explored, the stimulator option is a less reasonable alternative, not an equally viable one. Therefore, Cahill does not avail Claimant in this case.
7. I conclude that Claimant has not sustained his burden of proving that a permanently implanted spinal cord stimulator constitutes reasonable treatment for his work-related injury.
8. As Claimant has failed to prevail on his claim for benefits, he is not entitled to an award of costs or attorney fees.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for medical benefits associated with the permanent implantation of a spinal cord stimulator is hereby DENIED.
DATED at Montpelier, Vermont this 23rd day of October 2012.
____________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

Semka Mujic v. Vermont Teddy Bear Factory (February 7, 2012)

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

Semka Mujic v. Vermont Teddy Bear Factory (February 7, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Semka Mujic Opinion No. 04-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Vermont Teddy Bear Factory
For: Anne M. Noonan
Commissioner
State File No. AA-56037
OPINION AND ORDER
Hearing held in Montpelier on November 2, 2011
Record closed on December 13, 2011
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Keith Kasper, Esq., for Defendant
ISSUES PRESENTED:
1. Did Claimant’s work for Defendant cause or aggravate her current cervical spine condition?
2. Does Dr. Jewell’s proposed fusion surgery represent reasonable medical treatment under 21 V.S.A. §640(a)?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Stipulation
Claimant’s Exhibit 1: Deposition of Ryan Jewell, M.D., November 2, 2011
Defendant’s Exhibit A: Personnel file
Defendant’s Exhibit B: Site visit video, May 20, 2011
Defendant’s Exhibit C: Video evaluation by Dr. Sobel
Defendant’s Exhibit D: Curriculum vitae, Jonathan Sobel, M.D.
Defendant’s Exhibit E: Curriculum vitae, George White, Jr., M.D., M.S.
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CLAIM:
Medical benefits pursuant to 21 V.S.A. §640
Temporary total disability benefits pursuant to 21 V.S.A. §642
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Vocational rehabilitation benefits pursuant to 21 V.S.A. §641
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.
Claimant’s Work from 1996 to 2010
3. Claimant, a Bosnian native, immigrated to the United States in 1996 and settled in Vermont. She began working as a sewer for Defendant in November 1996. Her job was to assemble component parts for teddy bears. The work was fast-paced and somewhat strenuous. It required her to force thick material through an industrial sewing machine for the whole of her eight-hour day. Claimant testified that sitting in a bent-over position as she worked the sewing machine she often felt strain in her neck, upper back and shoulders. She never reported any injury to her supervisors, however, and never sought medical treatment for these complaints during her tenure at this job.
4. Claimant worked at the sewing job for three years. In September 1999 she left to take a job assembling cable at Huber+Suhner. Claimant found this job to be much easier, as it was not as fast-paced or as stressful physically as her work for Defendant had been.
5. Claimant worked at Huber+Suhner for two years. She was laid of in September 2001. Thereafter, she was unemployed for approximately one year. In October 2002 she again sought employment at Defendant’s facility and was rehired.
6. Upon returning to work for Defendant, initially Claimant resumed her old job sewing teddy bear parts. In May 2004 she transferred to the order fulfillment department. Claimant welcomed the transfer, as she anticipated that this job would be less taxing physically.
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7. Claimant’s duties in order fulfillment were varied.1 Her primary responsibility was packing pajamas. As a cardboard shipping box containing whichever products a customer had ordered came down the conveyor belt from the picking line, Claimant would remove the products, fold and place them into a decorative organza container, then return them to the shipping box and send it down the line to the shipping department. Claimant typically spent six to eight hours daily at this task, and typically met the expected quota of 20 boxes packed per hour.
8. During her tenure in the order fulfillment department, Claimant spent most of her time on the pajama packing line. Depending on Defendant’s needs, at times she worked on the bear packing line instead. This was a similar process, with the added step of dressing the bears in accordance with the customer’s order prior to sending the box down the line to be shipped.
9. At other times Claimant worked on the picking line – on busy days, for up to three or four hours, less on slower days. This task involved manually moving several shipping boxes at a time down a conveyor belt, picking the products required to fulfill each customer’s order as she went. The products were stored in cardboard boxes arranged on shelves to her side, from floor level to above-shoulder height. Once each order was completed, Claimant would move its shipping box from the manual conveyor to a mechanical one, where it would travel to the packing line.
10. With cross-training, Claimant sometimes performed other functions as well. One or two days per week she worked in the print room, printing and sorting incoming order forms. Other assignments included hand-checking boxes for quality control, embroidering personalized bears and hand-wrapping boxes for storage. Monthly she would have to assist with inventory, which required removing the boxes in the picking area from their shelves, counting the product inside and then placing the boxes back on the shelves.
11. One of the tasks with which Claimant experienced the most difficulty was stocking product in the picking area. She used a small box cutter to open the front of each box so that it could be accessed easily from the picking line. The cardboard was thick, and cutting through it caused pain in her right arm. It is unclear from the evidence presented how often Claimant had to perform this task.
12. Claimant worked in the order fulfillment department from May 2004 until October 1, 2010. She terminated her employment with Defendant on that date and moved to Massachusetts, where her husband had taken a job. She has not worked since. In July 2011 she was determined eligible for social security disability benefits on account of an unrelated medical condition.
Claimant’s Prior Medical History
1 Some of Claimant’s job assignments were depicted on Defendant’s Exhibit B, a videotaped demonstration by her supervisor of the various tasks involved on each line, albeit not at the same pace that Claimant would have had to perform them. Claimant described other job assignments, not depicted on the video, in her formal hearing testimony.
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13. As documented by her medical records, Claimant has a history of neck and right upper extremity complaints dating back at least to July 2000. The symptoms she reported at that time included constant neck pain, discomfort extending into her right shoulder and arm, headaches and right-sided facial numbness. Notably, during the time when Claimant underwent evaluation and treatment for these symptoms, from July 2000 through July 2001, she was working not for Defendant but in her cable assembly job at Huber+Suhner. Claimant herself described this job as lacking the stress and strain on her neck, upper back and right arm that she had attributed to her sewing job.
14. Despite diagnostic testing, the etiology of Claimant’s symptoms was never definitively established. An MRI study in April 2001 revealed a degenerative C5-6 disc herniation, which the evaluating physician thought could account for her neck pain, but likely was not the cause of her right-sided facial numbness. Nor did either the MRI findings or subsequent electrodiagnostic studies explain her right shoulder and upper extremity complaints, which were diffuse rather than radicular in nature.
15. As treatment for her neck pain, Claimant underwent a cervical epidural steroid injection, but this failed to provide any significant relief. Given the diffuse nature of her symptoms, she was deemed not to be an appropriate surgical candidate. Rather, in light of her “broad spectrum of discomfort,” the evaluating physician recommended instead that she consider evaluation by a physiatrist or rheumatologist. From the medical records, it does not appear that Claimant ever pursued this recommendation.
16. Claimant next sought treatment for symptoms similar to those described above between February and November 2004. By this time she had been back to work for Defendant for more than a year. Claimant complained of right-sided neck pain, occasional weakness in her right arm and right-sided headaches and head numbness. Dr. Siegel, her primary care physician, diagnosed her neck pain as an “exacerbation of [her] C5-6 disc.” Her headache pain and numbness Dr. Siegel attributed to occipital neuralgia, an irritation of the occipital nerve. This nerve extends from one of the upper nerve roots in the cervical spine up into the base of the skull. Dr. Siegel did not attribute the cause of either of the conditions she diagnosed to Claimant’s work for Defendant.
17. Claimant did not treat again for neck, shoulder or right upper extremity pain until May 2007. During the intervening years, she did seek treatment for other medical issues, including low back pain, abdominal pain, asthma and sinusitis. Among the symptoms she reported at times were headaches, right ear pain and right-sided numbness and discomfort in her throat, ear and head. The medical records do not document that either Claimant or her providers related these symptoms in any way to her work for Defendant.
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Claimant’s May 2007 Injury Claim
18. In May 2007 Claimant sought treatment with Dr. Fitzgerald for complaints of right-sided pain and numbness in her neck, head and face, as well as pain, numbness and occasional paresthesias in her right hand and wrist. Dr. Fitzgerald is board certified in both family practice and urgent care medicine. At the time he was Defendant’s designated physician for treatment of its occupationally injured employees. In that capacity Dr. Fitzgerald had toured Defendant’s facility on at least two occasions, though not more recently than 2004.
19. Dr. Fitzgerald reported that Claimant’s symptoms began in February 2007, around the busy Valentine’s Day holiday, and that her job duties involved “repetitive packaging.” Based in part on his familiarity with the type of work performed at Defendant’s facility, Dr. Fitzgerald determined that Claimant’s condition was causally related to repetitive overuse at work. Defendant thus accepted it as compensable and began paying medical benefits accordingly.
20. Of note, Claimant reported to Dr. Fitzgerald that she had no prior history of neck or upper extremity injury, and it does not appear that Dr. Fitzgerald ever reviewed her prior medical records. Apparently he did not know, therefore, that at least some of the symptoms of which Claimant complained in May 2007 had been troubling her on occasion for several years.
21. At Dr. Fitzgerald’s referral, in June 2007 Claimant underwent electrodiagnostic studies with Dr. Roomet, a neurologist. These studies failed to reveal any discrete nerve damage or entrapment in Claimant’s right arm, such as carpal tunnel syndrome or ulnar neuropathy, nor any clear evidence of cervical radiculopathy. Dr. Roomet concluded that Claimant’s symptoms were multi-factorial, with elements of cervical pain, right-sided occipital neuralgia and possibly tendonitis. As treatment for her neck, head and shoulder symptoms he recommended trigger point injections and an occipital nerve block. For her forearm, hand and wrist pain he recommended workplace modifications, rest, anti-inflammatory medications and physical therapy.
22. Claimant continued to work over the course of the ensuing months, albeit with modified-duty limitations imposed by Dr. Fitzgerald. These included restrictions against lifting more than twenty pounds or reaching above her shoulders.
23. Consistent with Dr. Roomet’s recommendation, in October 2007 Claimant underwent a right occipital nerve block. By this time she was reporting that her right arm symptoms, which previously had extended from her shoulder down into her hand, thumb and first two fingers, had resolved. Following the injection Claimant reported 80 percent relief of her neck pain.
24. In November 2007 Dr. Fitzgerald determined that Claimant’s occipital neuralgia had resolved. He therefore placed her at end medical result, with no permanent impairment and no further work restrictions.
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Claimant’s September 2008 Exacerbation
25. Ten months later, in September 2008 Claimant returned to Dr. Fitzgerald, again complaining of symptoms consistent with occipital neuralgia, including neck and right shoulder pain and right-sided numbness in her face and head. As before, Dr. Fitzgerald noted that Claimant “does repetitive use at work.” He characterized her symptoms as an exacerbation of her 2007 work-related injury.
26. In the months that followed Claimant underwent numerous evaluations, diagnostic studies and courses of treatment. If nothing else, the results appear to support Dr. Roomet’s analysis in 2007 – that Claimant’s condition was multi-factorial and therefore not amenable to singular diagnosis or treatment. Among the findings reported:
• In addition to the symptoms she reported to Dr. Fitzgerald, during the course of her physical therapy and work hardening sessions Claimant complained of such varied symptoms as tingling in the third and fourth fingers of her right hand, occasional dizziness when moving her head or neck away from a neutral position, numbness around and behind her right ear, shooting pain down her right arm, achiness in her right hand, pain in her right shoulder blade and constant “whole body fatigue.”
• A cervical MRI study in November 2008 documented moderate degenerative disc space narrowing at C5-6 and mild narrowing of the spinal canal at this level as well, but no disc herniation or spinal cord compression;2
• As was the case with Dr. Roomet’s diagnostic studies, electrodiagnostic testing conducted by Dr. Haq in December 2008 was negative for both cervical radiculopathy and carpal tunnel syndrome;
• A third electrodiagnostic study, this one conducted by Dr. Starr in July 2009, again failed to reveal sufficient evidence of carpal tunnel syndrome, radiculopathy or plexopathy to explain Claimant’s right shoulder, arm or hand complaints, and instead suggested an underlying myofascial pain syndrome as more likely causative;
• Evaluation and treatment by Dr. Landrigan, an ear, nose and throat specialist, in 2009 revealed that Claimant likely suffered from chronic rhinosinusitis, a condition that might account for at least some of her craniofacial pain complaints.
27. In June 2010 Claimant requested that her primary care physician, Dr. Siegel, refer her for an evaluation with Dr. Jewell, a neurosurgeon whom her attorney had suggested she consult. Dr. Siegel complied, and made the requested referral for evaluation of Claimant’s reported neck, right shoulder and right upper extremity symptoms.
2 Unfortunately, this MRI study was not compared with the earlier one completed in 2001, so there is no way to know whether or to what extent the degeneration at this level had advanced in the intervening years.
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28. In preparation for Dr. Jewell’s evaluation, in July 2010 Claimant underwent a third cervical MRI study. The results described more advanced degeneration at the C5-6 level than what was apparent on Claimant’s 2008 MRI study, and for the first time revealed a small dent, or effacement, in the spinal cord itself.
29. Dr. Jewell diagnosed Claimant with both cervical radiculopathy and early myelopathy. The two diagnoses describe different conditions, though in Dr. Jewell’s analysis both arose from the same source, namely, Claimant’s C5-6 disc. Radiculopathy refers to the condition that results when the nerve at a particular level of the spine becomes pinched, resulting in symptoms that radiate down an extremity. A pinched nerve at the C-6 level can cause pain from the neck, down the arm and into the thumb and forefinger. Dr. Jewell characterized the symptoms Claimant described as a “classic distribution” of C-6 radiculopathy.
30. In contrast, myelopathy refers to the condition that results when the spinal cord itself becomes pinched. In its early stages myelopathy can be asymptomatic, but it can become a serious problem over time. In Claimant’s case, Dr. Jewell found evidence of myelopathy in two aspects of his clinical examination, both of which indicated spinal cord compression.
31. Both radiculopathy and myelopathy are to be distinguished from occipital neuralgia, the diagnosis given previously by Drs. Siegel, Roomet and Fitzgerald to account for at least some of Claimant’s head and neck symptoms. Dr. Jewell did not mention occipital neuralgia in either his evaluation or in his deposition testimony, and thus did not explain how that diagnosis might fit into his analysis of Claimant’s symptomatology, if at all.
32. Dr. Jewell attributed the cause of both Claimant’s C-6 radiculopathy and her early myelopathy to the C5-6 disc herniation indicated on her July 2010 MRI study. He did not offer any explanation as to how the herniation occurred, nor did he state any opinion as to whether it was causally related to Claimant’s work for Defendant. Notably, he was unaware that Claimant had been complaining of neck, shoulder and right arm symptoms as far back as 2000, and that prior MRI studies had documented degenerative changes at the C5-6 level as early as 2001. To the contrary, from the history that Claimant reported to him, he understood that her symptoms first arose in 2008.
33. As treatment for Claimant’s condition Dr. Jewell has recommended C5-6 fusion surgery. The purpose of this surgery is both to halt the further progression of her myelopathy and to take the pressure off of the C-6 nerve. Relieving the pressure will not “fix” the nerve itself, but hopefully it will alleviate Claimant’s radicular pain.
34. Claimant has not treated for her neck, right shoulder or arm symptoms since moving to Massachusetts in October 2010. At the formal hearing, she described her current symptoms as including pain in her right shoulder and neck, pain and weakness throughout her right arm and numbness in her palm and first three fingers on her right hand. As recently as July 2011 she also was complaining of constant facial numbness and numbness and tingling on the right side of her head.
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35. Claimant testified that she left her job not only because her husband had moved but also because due to her pain she could no longer tolerate the work. No medical provider ever disabled her totally from working, however, and there is no evidence that Defendant was not accommodating the modified-duty restrictions that Dr. Fitzgerald imposed after her 2008 exacerbation.
Expert Medical Opinions
36. The parties each presented expert medical opinions as to (1) whether Claimant’s current condition is causally related to her work for Defendant; and (2) whether Dr. Jewell’s proposed fusion surgery is reasonable and necessary.
(a) Dr. Fitzgerald
37. Dr. Fitzgerald was Claimant’s treating physician from May 2007 until August 2009. As noted above, Finding of Fact No. 18 supra, he was familiar with Defendant’s operation, having toured the facility previously, and presumably understood the general nature of Claimant’s job duties there. He was less familiar with Claimant’s medical history, however, and as noted above, Findings of Fact Nos. 19-20 supra, was unaware that her symptoms did not originate in 2007 but rather dated back at least to 2000.
38. Dr. Fitzgerald asserted that the repetitive nature of Claimant’s work for Defendant caused or contributed to her current condition. In stating this conclusion, Dr. Fitzgerald did not specify which of Claimant’s job tasks were so repetitive as to result in the particular injury from which she now suffers. This is a significant omission. The undisputed evidence showed that Claimant’s job responsibilities were diverse and varied. As demonstrated on the video (which Dr. Fitzgerald did not view), Claimant clearly had to use her right upper extremity throughout her work day in order to accomplish her assigned job tasks. Dr. Fitzgerald did not offer any explanation, however, as to the mechanism by which using her right arm repetitively translated either to advanced degeneration in Claimant’s cervical spine or to inflammation of her occipital nerve.
39. Dr. Fitzgerald did not voice an opinion as to whether Dr. Jewell’s proposed fusion surgery is reasonable and necessary. Rather than making specific treatment recommendations, he has suggested instead that Claimant be retrained for an occupation that does not require repetitive use of her right arm.
(b) Dr. White
40. At Defendant’s request, in April 2009 Claimant underwent an independent medical examination with Dr. White, a board certified specialist in occupational medicine. Dr. White conducted a physical examination and initially, reviewed Claimant’s medical records dating back to Dr. Fitzgerald’s May 2007 examination. Later, he reviewed additional records dating back to April 2005. Dr. White also viewed the videotaped demonstration of Claimant’s primary job responsibilities.
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41. In Dr. White’s opinion, it is impossible to state to the required degree of medical certainty that Claimant’s work for Defendant caused or contributed to her current cervical condition. Chronic neck pain is a relatively common ailment, and the degenerative disc disease in Claimant’s cervical spine is typical for her age. Her job duties did not involve activities typically associated with cervical spine injury, such as sustained static neck posture, high static loads or repetitive heavy overhead lifting. Thus, while anything is possible, there is no basis for concluding definitively that Claimant’s C5-6 disc herniation was in any way work-related. I find Dr. White’s analysis in this regard to be credible.
42. As for the etiology of the symptoms in Claimant’s right arm, hand and fingers, Dr. White was unconvinced that they represented C5-6 radiculopathy. To him they appeared somewhat non-specific, and were not verified electrodiagnostically. Nevertheless, he acknowledged the possibility that they still could be radicular in origin, as Dr. Jewell had concluded.
43. Dr. White stopped short of characterizing Dr. Jewell’s proposed fusion surgery as an unreasonable treatment option for Claimant, although that would not have been his recommendation. If in fact Claimant’s right arm, hand and finger symptoms represent radiculopathy, then surgery might alleviate them. Given its chronic nature, however, surgery likely will not resolve her neck pain.
(c) Dr. Sobel
44. At Defendant’s request, in July 2011 Claimant underwent an independent medical examination with Dr. Sobel, a board certified orthopedic surgeon. Dr. Sobel described his current practice as a general orthopedic one. Cervical conditions are not a particular focus, and in fact he has not performed a cervical spine surgery for at least ten years. At least 50 percent of his practice involves independent medical evaluations.
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45. Dr. Sobel physically examined Claimant and reviewed her medical records dating back to 2001. He also viewed the video demonstration of her primary job assignments. According to his analysis of the medical evidence:
• Claimant’s hand pain does not correlate entirely with her cervical spine symptoms, and has never been definitively diagnosed;
• Claimant’s shoulder and neck pain is likely referred rather than radicular in nature, meaning that although the body perceives it as radiating it does not follow a specific dermatomal pattern along the nerve root itself;
• Claimant exhibited signs of symptom magnification during her physical examination, including non-specific pain complaints and facial grimacing;
• Claimant’s work activities did not consist of a single repetitive motion but rather involved multiple varied movements, most of which were conducted at waist level; and
• Despite not having worked for almost a year at the time of his examination, Claimant still complained of pain with motion of her neck or shoulder.
46. I find credible Dr. Sobel’s observations regarding the nature of Claimant’s work and the absence of repetitive activities typically associated with cervical spine injury or disease. I find less credible his determination that Claimant was exaggerating her symptoms. Neither Claimant’s primary care physician, Dr. Siegel, nor Dr. Fitzgerald, who treated her neck and shoulder symptoms for more than two years, ever reported evidence of symptom magnification over the course of their many office visits with Claimant.
47. Dr. Sobel conceded that Claimant likely suffered a work-related overuse injury to her shoulder in 2007, which he diagnosed as an episode of subacromial bursitis or tendonitis.3 In his analysis, however, her current symptoms most likely represent cervical degenerative disc disease, which according to the medical records has been progressing for many years. In Dr. Sobel’s opinion, to a reasonable degree of medical certainty, this condition is not causally related in any way to Claimant’s work activities for Defendant.
48. Dr. Sobel does not believe that Dr. Jewell’s proposed fusion surgery is medically indicated, and doubts that Claimant will realize any long-term relief of symptoms from it. In his opinion, therefore, the surgery is neither reasonable nor necessary.
3 Of note, in June 2007 Dr. Roomet posited a similar diagnosis as one component of what he considered to be a multi-factorial problem. See Finding of Fact No. 21 supra.
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CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The primary disputed issue in this claim is whether Claimant’s work for Defendant either caused or aggravated her current cervical condition. If it did, then the secondary disputed issue is whether Dr. Jewell’s proposed fusion surgery represents reasonable and necessary medical treatment.4 Claimant bears the burden of proof on both of these issues. Egbert, supra; Johnson v. Oly Equinox Holding Company, Opinion No. 25-10WC (August 5, 2010).
3. As to the first issue, the parties presented conflicting expert medical evidence. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
4. I conclude here that the Dr. Fitzgerald’s causation opinion was not sufficiently credible to sustain Claimant’s burden of proof. In reaching this conclusion, I acknowledge his familiarity both with the type of work that Defendant’s employees generally perform and with Claimant’s medical course over the two years during which he treated her. Ordinarily this would lend significant weight to his opinion.
5. Here, however, Dr. Fitzgerald’s familiarity with Claimant’s condition was undermined by his failure to acquaint himself with her prior medical history. As a result, he did not consider how the complaints she presented as work-related from May 2007 forward may have fit into the broader context of similar, non-work-related complaints documented some years earlier.
4 Claimant seeks other workers’ compensation benefits as well, though primarily these all flow from her claim that Dr. Jewell’s surgery is compensable.
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6. Perhaps more disturbing, despite Dr. Fitzgerald’s general familiarity with the type of work Defendant’s employees perform he failed adequately to explain how Claimant’s specific job tasks either caused or aggravated the cervical condition for which she now requests surgery. Given Claimant’s complicated medical history and multi-factorial symptom presentation, to say simply that Claimant’s “repetitive work” caused her injury raises more questions than it answers. How do job tasks that involve primarily upper extremity use cause or aggravate cervical disc degeneration? Is Claimant’s occipital neuralgia related to repetitive work as well? Where do her complaints of right-sided head and facial numbness fit in? If her symptoms are work-related, why have they not improved in the year since she left her job? Without answers to these questions, Dr. Fitzgerald’s opinion is so conclusory as to be unpersuasive.
7. In contrast, both Dr. White and Dr. Sobel analyzed Claimant’s specific job activities for the purpose of identifying whether they involved any of the stressors typically associated with cervical injury or disease, and found none. I accept as credible their determination that absent such a link, there is no basis for concluding to the required degree of medical certainty that Claimant’s cervical condition is work-related.
8. I conclude that Claimant has failed to sustain her burden of proving that her work for Defendant caused or aggravated either her C5-6 disc herniation or her occipital neuralgia. Neither of these conditions is compensable, therefore.
9. As for the proposed fusion surgery, based on Dr. Jewell’s expertise as a neurosurgeon I accept as credible his determination that medically it is a reasonable and necessary treatment option for Claimant to pursue. In the workers’ compensation arena, however, to be reasonable a treatment must be causally related to a compensable work injury as well. Pelissier v. Hannaford Brothers, Opinion No. 26-11WC (September 9, 2011). That is not the case here. I conclude, therefore, that Dr. Jewell’s proposed surgery does not represent reasonable treatment for which Defendant can be held responsible under 21 V.S.A. §640(a).
10. Having failed to prevail on her claim for benefits, Claimant is not entitled to an award of costs and attorney fees.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for workers’ compensation benefits causally related to her current cervical condition is hereby DENIED.
DATED at Montpelier, Vermont this 7th day of February 2012.
________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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

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

Violet Veillette v. Pompanoosuc Mills Corp (September 14, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Violet Veillette Opinion No. 23-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Pompanoosuc Mills Corp.
For: Anne M. Noonan
Commissioner
State File No. U-52073
OPINION AND ORDER
Hearing held in Montpelier on May 4, 2012
Record closed on July 10, 2012
APPEARANCES:
Charles Powell, Esq., for Claimant
Keith Kasper, Esq., for Defendant
ISSUE PRESENTED:
Is Defendant obligated to pay for various medical services and supplies, including prescription pain medications, injections, physical therapy, chiropractic treatment and/or proposed cervical fusion surgery, as reasonable treatment for Claimant’s compensable March 4, 2004 work injuries?
EXHIBITS:
Joint Exhibit I: Medical records (Volume 1)
Joint Exhibit II: Medical records (Volume 2)
Joint Exhibit III: Stipulation
Claimant’s Exhibit 1: Curriculum vitae, Melynda Wallace, MSN, CRNA
Claimant’s Exhibit 2: Curriculum vitae, Sara Young-Xu, MD
Claimant’s Exhibit 3: Curriculum vitae, Joseph Phillips, MD, Ph.D.
Claimant’s Exhibit 4: DVD of Dr. Boucher examination, January 11, 2011
Claimant’s Exhibit 5: 6/29/2010 MRI, sagittal image #8
Claimant’s Exhibit 6: 6/29/2010 MRI, axial image #8
Claimant’s Exhibit 7: 6/29/2010 MRI, axial image #9
Defendant’s Exhibit A: Curriculum vitae, William Boucher, MD
Defendant’s Exhibit B: Curriculum vitae, Herbert Cares, MD
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CLAIM:
Medical benefits pursuant to 21 V.S.A. §640(a)
Costs and attorney fees pursuant to 21 V.S.A. §675
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant worked at Defendant’s furniture manufacturing facility. Her duties included sanding, spraying and staining pieces of furniture, and also carrying them to and from various locations within the building.
4. On March 5, 2004 Claimant tripped over a piece of metal at work while carrying a drawer. She fell sideways, still holding the drawer. Her right shoulder and the right side of her neck hit the drawer as it in turn hit the floor. Claimant suffered contusions and pain in her left leg, lower back, neck and right arm. Defendant accepted these injuries as compensable and began paying workers’ compensation benefits accordingly.
5. Claimant treated initially with Dr. Young-Xu, her primary care provider. Over the course of time her symptoms, which included primarily right-sided neck pain radiating into her shoulder blades as well as low back pain radiating into her right hip, have become chronic, and somewhat diffuse as well. Prior to her work injury Claimant had no previous medical history of any such symptoms.
6. As to her cervical and upper extremity symptoms, Claimant has undergone various diagnostic studies, including both MRI imaging and electrodiagnostic testing. The earliest studies, completed in the first few months following her injury, revealed advanced degenerative disc disease at the C5-6 level as well as a large disc herniation on the left at C6-7. Subsequent MRI studies in 2005, 2006 and 2010 yielded similar findings. However, electrodiagnostic studies failed to reveal any focal peripheral nerve involvement or dermatomal distribution to account for the radicular symptoms in Claimant’s right shoulder and arm.
7. Various diagnostic studies of Claimant’s lumbar spine have likewise failed to reveal a clear-cut source for her radicular complaints, with no evidence of disc herniation or nerve root involvement apparent.
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8. Although the degenerative disc disease in Claimant’s cervical spine probably preexisted her injury, it was entirely asymptomatic. The C6-7 disc herniation, which was an acute injury caused by her work-related fall, likely affected the biodynamics of the spine at the adjacent C5-6 level as well. Over time, bone spurs continued to grow at both levels. Bone spurs sometimes represent a chronic reaction to an acute injury – they are the body’s way of “fixing” a painful area of the spine by immobilizing it even further.
9. It also is likely that at least some of Claimant’s now chronic pain is neuropathic in nature. Neuropathic pain occurs when the neural processors in the brain become hypersensitive following a primary injury. As a result, the threshold for generating pain falls at the same time that its duration, amplitude and spatial distribution increase.1 Unlike nociceptive pain (pain that results directly from sensing noxious stimuli) or inflammatory pain (tenderness that activates the body’s immune system to help damaged tissues heal), neuropathic pain is a separate, maladaptive disease of the nervous system.2 Curing such pain is very difficult; rather, the best hope is often simply to manage it.
Treatment with Prescription Pain Medications
10. Claimant has undergone several conservative therapies for her chronic pain, beginning with narcotic pain medications prescribed by Dr. Young-Xu only weeks after her injury. Currently her pain medication regimen includes fentanyl (a synthetic morphine), gabapentin (for nerve pain), Flexeril (a muscle relaxant), amtriptyline (a sleep aid) and Zoloft (an anti-depressant).
11. Claimant testified credibly that the fentanyl patches she currently uses provide noticeable pain relief with few if any side effects. As such, they are more effective than any of the other narcotic pain medications she attempted previously, including Vicodin and oxycodone. On those rare occasions when she forgets to apply a patch, her pain markedly worsens and her ability to perform such basic activities as showering, washing her hair and doing the dishes is impaired.
12. The goal of prescription pain control in chronic pain patients is not to eliminate the pain altogether, but rather to allow for some increased function and improved quality of life. Research suggests that it is often efficacious to rotate a patient’s narcotic medications, and also to titrate dosages to the lowest level possible without sacrificing adequate pain control. According to Dr. Young-Xu, the medications she currently prescribes, including fentanyl, maintain Claimant’s pain at a tolerable level, but still not to the point where it should be considered well controlled. For that reason, and also because there is no evidence that Claimant has ever misused or abused any of the drugs she has been prescribed, Dr. Young-Xu does not believe it would be appropriate either to reduce her dosage or to taper her off of them. I find this analysis persuasive.
Injections
1 Woolf, CJ, “What is this thing called pain?”, J.Clin.Invest. 2010; 120(11):3742-3744 at p. 3744; Joint Exhibit II at 674.
2 Id. at p. 3742; Joint Exhibit II at 672.
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13. In addition to prescription pain medications, Claimant has at various times undergone different types of injections in an effort to manage her cervical and lumbar pain. Initially these were administered by Dr. Frazer; since June 2006 Melynda Wallace, a certified nurse anesthetist, has been the treating provider. Ms. Wallace holds a master’s degree in anesthesia and is certified as a fellow of the American Academy of Pain Management. She is an experienced pain practitioner, whose current focus is on chronic pain management.
14. The injections Ms. Wallace has administered in Claimant’s case involve the use of epidural steroids. Their purpose is not to fix the pain generator in either the cervical or lumbar spine per se, but rather to provide some measure of extended pain relief. Epidural steroid injections reduce inflammation in the structures of the spine on a cellular level, such that the structures cease sending constant pain signals to the brain, at least for a time.
15. The medical records document that Claimant derived measurable pain relief from the cervical injections Ms. Wallace administered. She underwent a series of three injections between June 2006 and February 2007, a single injection in March 2009 and then another in May 2010. In Ms. Wallace’s opinion, which I find credible, an injection ought to provide at least 30 to 45 days of pain relief in order to justify regularly repeating the procedure. The interval pain relief Claimant realized more than met this standard.3
16. Ms. Wallace also has significant experience with managing chronic pain pharmaceutically. She fully endorsed Dr. Young-Xu’s medication regimen, including the use of both fentanyl and gabapentin. She noted that while Claimant’s dosage levels have not decreased, they have not increased in many years either. This is an indication of their ongoing effectiveness in controlling Claimant’s symptoms.
Physical Therapy and Chiropractic Manipulation
17. Claimant has at various times undergone courses of physical therapy as well as chiropractic manipulations as treatment for both her cervical and lumbar symptoms. According to the medical records, the last course of physical therapy occurred in 2006, and the last chiropractic treatment was in 2010. The medical records do not document any currently pending prescription or referral for ongoing treatment in either discipline.
18. Ms. Wallace testified in general terms as to the benefits of physical therapy as a means of maintaining function, and also as to the reasonableness of chiropractic manipulation directed at Claimant’s lumbar spine. The extent of Ms. Wallace’s specific expertise in these areas is unclear, and therefore I find her opinion on this issue of limited value.
3 The medical records document similar relief of Claimant’s lumbar pain as a result of Ms. Wallace’s injections.
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Surgery
19. Claimant first considered the possibility of treating her cervical symptoms surgically in September 2004. At Dr. Young-Xu’s referral, she underwent an evaluation with Dr. Phillips, a neurosurgeon. Dr. Phillips determined at that time that surgery was “definitely an option” in the event that non-surgical interventions failed. As Claimant preferred continued conservative management of her symptoms, she opted against this approach.
20. Dr. Phillips next examined Claimant in April 2006. Both her symptoms and her MRI findings were essentially unchanged from his prior exam, and again he offered Claimant the same surgical option he had previously. Again, Claimant opted to continue with conservative management of her symptoms.
21. Dr. Phillips again evaluated Claimant in October 2010. As before, he found her MRI findings essentially unchanged from prior studies, and again he offered the same surgical option.
22. The surgery Dr. Phillips has proposed, a C5-6 and C6-7 discectomy and fusion, is designed to address Claimant’s axial pain, that is, the pain she feels in her neck itself. It likely will not alleviate her radicular pain, that is, the pain she describes as radiating into her shoulder and arm. Radicular pain can often be localized to a particular nerve root, which allows the surgeon to identify the specific pain generator with greater confidence. The source of axial pain is more difficult to pinpoint. In Claimant’s case, however, given that she has been followed over a long period of time with no new complaints or developments, and also given that her symptoms correlate well with her MRI findings, Dr. Phillips is confident that he will be able to do so.
23. Claimant has now decided that she would like to undergo surgery. While she understands that it likely will not cure her pain completely, Dr. Phillips anticipates that it will alleviate her symptoms enough to provide long-term improvement in both her quality of life and her ability to function.
24. Claimant will need medical clearance to undergo Dr. Phillips’ proposed surgery, as she has a history of coronary artery blockage. An updated MRI study also will be necessary prior to surgery.
25. Dr. Phillips testified that both Dr. Young-Xu’s medication regimen and Ms. Wallace’s injection therapies were consistent with conservative management of chronic pain problems such as Claimant’s.
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Defense Expert Medical Opinions
26. At Defendant’s request, Claimant has undergone two independent medical examinations, one with Dr. Boucher in January 2011 and another with Dr. Cares in January 2012. At issue in both evaluations was whether Claimant’s ongoing treatment, consisting of prescription pain medications, injections and possibly fusion surgery, is medically necessary and causally related to her compensable work injury.
(a) Dr. Boucher
27. Dr. Boucher is board certified in occupational medicine. In the past 15 years he has focused increasingly on chronic pain management, though he is not board certified in that specialty. His current practice consists primarily in performing medical records reviews, permanency evaluations and independent medical examinations; only ten percent involves direct patient care.
28. As part of his evaluation of Claimant, Dr. Boucher conducted a physical examination and also reviewed her medical records. Based on that, he concluded that Claimant’s physical injuries have never been so severe as to warrant the type and extent of treatment she has received. Rather, in his opinion her condition is largely psychogenic, or psychologically rather than physically driven.
29. I find specific reason in the record to question this assertion. For example, although Dr. Boucher stated that Claimant was “clearly” depressed, this was based solely on her demeanor during his examination, not on any formal screening tool. Notably, based on Claimant’s periodic self-reports on a validated screening questionnaire, Dr. Young-Xu has concluded that her depression is in remission and under control. Having used a far more precise evaluative technique, I find Dr. Young-Xu’s conclusion in this regard more persuasive than Dr. Boucher’s.
30. Dr. Boucher’s conclusion that Claimant exhibited evidence of symptom magnification is also suspect. In appropriate circumstances, symptom magnifying behavior may indicate a strong psychological component to a patient’s presentation. In Claimant’s case, Dr. Boucher found such behavior in the inconsistent responses she demonstrated on repeat cervical range of motion testing. However, as Ms. Wallace credibly noted after viewing the video of Dr. Boucher’s evaluation, his examination technique may itself have induced the inconsistencies upon which he relied, and therefore I must discount them.
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31. Dr. Boucher found fault in virtually all of the treatment that Claimant’s providers have rendered since her work injury. In his opinion, the objective findings have never been sufficient to justify narcotic pain medications, and recent research suggests that chronic use of opiate analgesics may actually increase rather than decrease a patient’s perception of pain. According to his review of the medical records, Claimant’s response to Ms. Wallace’s epidural steroid injections provided only temporary relief and likely represented a placebo effect rather than truly effective treatment. As for Dr. Phillips’ proposed surgery, Dr. Boucher strongly discouraged it, on the grounds that absent clear evidence of radiculopathy cervical fusion likely would not be successful at relieving Claimant’s symptoms.
32. Again, I find reason to question these assertions. While it is true that long term use of narcotic pain medications may be contraindicated in many chronic pain patients, even Dr. Boucher acknowledged that anecdotally there are those who appear to function well on them. The American College of Occupational and Environmental Medicine (ACOEM) guidelines recommend their use for select patients. Presumably as a safeguard against abuse, the ACOEM guidelines also recommend routine urine drug screening to identify aberrant use, a procedure to which Dr. Young-Xu adheres and which Claimant has never failed. Notably, both Ms. Wallace and Dr. Phillips also supported Dr. Young-Xu’s medication regimen as consistent with proper management of chronic pain patients.
33. As noted previously, furthermore, Finding of Fact No. 15 supra, I already have found from the credible medical evidence that Claimant derived sufficient benefit from injection therapy to justify its ongoing use. Ms. Wallace’s credentials in this area are impressive, and her explanation as to how injections are used to manage both acute and chronic pain was persuasive. Viewed against this backdrop, I find little evidence to support Dr. Boucher’s conclusion that the only benefit Claimant has derived from injection therapy is as a placebo.
34. Dr. Boucher’s opinion as to fusion surgery comports generally with that of Dr. Cares, which is discussed in greater detail below.
(b) Dr. Cares
35. Dr. Cares is a board certified neurosurgeon at Massachusetts General Hospital. His clinical practice includes cervical spine surgeries. Dr. Cares was one of Dr. Phillips’ mentors during the latter’s residency. Each holds the other in high regard.
36. Dr. Cares diagnosed Claimant with a remote cervical strain causally related to her work injury, but attributed her current symptoms solely to somatoform disorder. He based this conclusion on what he perceived to be a lack of objective findings, coupled with evidence of symptom magnification. His observations in this regard were similar to Dr. Boucher’s.
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37. As for Dr. Phillips’ proposed surgery, Dr. Cares was strongly opposed. In his opinion, Claimant’s symptoms did not correlate with either her MRI studies or his findings on examination. Absent sufficient correlation, in Dr. Cares’ opinion it would be impossible to identify and address the source of her pain surgically. Thus, while he acknowledged that some surgeons will operate on axial pain, in his opinion to do so is not “scientific behavior.” He does not anticipate that Claimant will derive much, if any, benefit from surgery. Were she his patient, it is not an option he would offer.
38. Dr. Cares also expressed concern about the inherent risks associated with a two-level fusion surgery such as the one Dr. Phillips has proposed. Fusing two joints places added stress on the discs directly above and below, thus increasing the risk of excessive degeneration from overuse.
39. In his testimony, Dr. Phillips directly addressed Dr. Cares’ misgivings as to fusion surgery. As noted above, Finding of Fact No. 22 supra, notwithstanding that Claimant’s pain is primarily axial rather than radicular in nature, Dr. Phillips is confident that surgery will alleviate her symptoms enough to improve function. Her complaints have been consistent throughout and to his view correlate well with her imaging studies. Dr. Phillips noted in this regard that although Claimant’s MRI studies have documented more left- than right-sided abnormalities, this does not mean that her predominantly right-sided symptoms are inconsistent. The key is how the various structures of the spine move in relation to one another. Thus, the fact that on a static MRI scan a disc herniation appears to predominate on the left does not negate the possibility of nerve root irritation on the right.
40. As for the risk of further degeneration above and below the fusion site, in Dr. Phillips’ opinion this is overstated. As discussed supra, Finding of Fact No. 8, bone spurs already have formed at the levels to be fused, which is the body’s own attempt to immobilize the area. Even without surgical fusion, the risk of adjacent segment disease already exists, therefore. I find this analysis persuasive.
Procedural History
41. At Defendant’s request, in May 2006 Claimant underwent an independent medical examination with Dr. Davignon. This evaluation followed her second surgical consultation with Dr. Phillips. Claimant having at that time opted against surgery, Dr. Davignon determined that she had reached an end medical result for her compensable neck and lower back injuries. With that opinion as support, in June 2006 the Department approved Defendant’s discontinuance of temporary total disability benefits. Thereafter, Defendant continued to pay for physical therapy, chiropractic treatments, injections and prescription pain medications as before.
42. In December 2006 the Department approved a full and final (Form 14) settlement of Claimant’s claim for indemnity benefits causally related to her compensable neck and lower back injuries. Claimant’s entitlement to ongoing medical benefits was unaffected by this settlement.
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43. With Dr. Boucher’s January 2011 independent medical examination as support, in February 2011 the Department approved Defendant’s discontinuance of both chiropractic manipulations and/or injections as treatment for Claimant’s compensable injuries. The Department rejected Defendant’s discontinuance of pain medications absent evidence of a safe taper plan.
CONCLUSIONS OF LAW:
1. The disputed issue in this claim is whether Defendant is obligated to pay for various medical services and supplies, including prescription pain medications, injections, physical therapy, chiropractic treatment and/or proposed cervical fusion surgery, as reasonable treatment for Claimant’s compensable neck and low back injuries. Defendant asserts that it is not, both because her current complaints are unrelated to her work injuries and because the treatments at issue are not medically necessary.
2. Vermont’s workers’ compensation statute obligates an employer to pay only for those medical treatments that are determined to be both “reasonable” and causally related to the compensable injury. 21 V.S.A. §640(a); MacAskill v. Kelly Services, Opinion No. 04-09WC (January 30, 2009). The commissioner has discretion to determine what constitutes “reasonable” medical treatment given the particular circumstances of each case. Id. A treatment can be unreasonable either because it is not medically necessary or because it is not related to the compensable injury. Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January 20, 2010).
3. The parties presented conflicting expert testimony on both of these factors. In such cases, the commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
Causal Relationship
4. Considering the causal relationship question first, I conclude from the more credible evidence that Claimant’s current symptoms and need for ongoing treatment are related to her compensable injuries. I accept the opinions of her treating providers – Dr. Young-Xu, Ms. Wallace and Dr. Phillips – as persuasive in this regard. All have benefitted from the opportunity to evaluate and observe Claimant over an extended period of time. Beyond that, Ms. Wallace cogently explained the extent to which some of Claimant’s more diffuse symptoms likely represent neuropathic pain, and Dr. Phillips credibly connected the dots between her consistent complaints and the objective findings documented on MRI studies.
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5. Drs. Boucher and Cares both characterized Claimant’s condition as driven primarily by psychological factors, but I find lacking the evidence in support. As to both depression and symptom magnification, Dr. Boucher’s observations were particularly suspect given his examination technique. Dr. Cares’ opinion was largely conclusory, and therefore difficult for me to evaluate. Neither expert provided sufficient justification for the premise that at some point Claimant’s neck and lower back symptoms, the treatment for which Defendant had long accepted as compensable, suddenly became psychogenically caused instead. Defendant bore the burden of proof on this issue, Merrill v. University of Vermont, 133 Vt. 101 (1974), and I conclude that it has failed to sustain it.
Medical Necessity
6. Having concluded that Claimant’s need for ongoing treatment is causally related to her compensable work injuries, I next consider whether the treatments at issue are medically necessary. This determination is based on evidence establishing the likelihood that they will improve the patient’s condition, either by relieving symptoms and/or by maintaining or increasing functional abilities. Cahill v. Benchmark Assisted Living, Opinion No. 13-12WC (April 27, 2012); Quinn v. Emery Worldwide, Opinion No. 29-00WC (September 11, 2000).
(a) Prescription Pain Medications and Injection Therapy
7. I conclude from the more credible evidence here that both Dr. Young-Xu’s prescription pain medications and Ms. Wallace’s injection therapy meet this standard. The intent of these treatments is not to “cure” Claimant’s pain, but rather to make it more manageable on a daily basis. As Ms. Wallace aptly described the chronic pain practitioner’s goal, “We don’t measure success by pain score. We measure success by function.”
8. With this goal in mind, I accept as credible Claimant’s testimony that she functions better with her pain medications, particularly fentanyl, than without them. I therefore conclude that the medications are continuing to serve the purpose for which they were prescribed and are thus medically necessary.
9. It is true, as Dr. Boucher noted, that recent research studies caution against the long term use of opiate analgesics as treatment for chronic pain. Given his limited association with Claimant, however, he is ill positioned to evaluate effectively whether such long-term use might still be appropriate in her case, a possibility that the ACOEM guidelines themselves acknowledge. As Claimant’s primary treatment provider, Dr. Young-Xu is more capable of making that determination, and also ensuring that proper safeguards against abuse are maintained. Both Dr. Phillips and Ms. Wallace fully endorsed the medication regimen she has prescribed, furthermore. Considered together, I conclude that the opinions of Claimant’s three treatment providers on this issue are more persuasive than Dr. Boucher’s.
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10. I also accept as credible Ms. Wallace’s assertion that Claimant derives sufficient benefit from injections to justify their continued periodic use. Claimant credibly testified to that effect, and the relief she claimed was adequately documented in the medical records. In contrast, Dr. Boucher’s conclusion that the injections were effective only as a placebo lacked objective support, and therefore I find it unpersuasive.
(b) Physical Therapy and Chiropractic Treatment
11. I conclude that the evidence was insufficient to establish that either physical therapy or chiropractic treatment constitute medically necessary treatment for Claimant’s symptoms at this point. There is no currently pending referral for physical therapy, and thus there is no basis for me to evaluate its current role, if any, in addressing her work-related condition. As for chiropractic, I will not give carte blanche approval for treatment that Claimant has not recently pursued absent more persuasive evidence regarding its efficacy in this case.
(c) Surgery
12. Finally, I must determine whether Dr. Phillips’ proposed cervical fusion surgery constitutes medically necessary treatment for Claimant’s work-related neck injury. Both Dr. Phillips and Dr. Cares rendered carefully considered opinions on this issue. If nothing else, their debate presents an instructive example of how two similarly trained and experienced medical professionals might present diametrically opposed yet equally persuasive views regarding how best to manage their own patients. It is a forceful reminder that medical decision-making is an inexact science, and that rarely is there only one right answer. Cahill, supra; Lackey v. Brattleboro Retreat, Opinion No. 15-10WC (April 21, 2010).
13. I conclude here that Dr. Phillips’ opinion is the most persuasive. I am confident that he conducted an appropriate risk-benefit analysis as to the efficacy of fusion surgery in Claimant’s case. I accept as credible his conclusion that it represents a reasonable opportunity to improve both function and quality of life in ways that will make a significant difference to her. Conservative treatment having failed to accomplish this result, I agree that she deserves this opportunity.
14. I am mindful that Dr. Cares’ risk-benefit analysis weighed against surgery as an appropriate treatment option in Claimant’s case, such that were Claimant his patient, it is not a choice he would have offered. However, the benefit side of his analysis was based on what he perceived to be evidence of symptom magnification and somatoform disorder, evidence I already have rejected, see Finding of Fact No. 37 supra. As for his risk analysis, I have accepted Dr. Phillips’ interpretation instead, see Finding of Fact No. 40 supra.
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15. I conclude that Claimant has sustained her burden of proving that Dr. Phillips’ proposed fusion surgery is medically necessary.
Summary
16. I conclude that Claimant has sustained her burden of proving that prescription pain medications, injection therapy and proposed fusion surgery constitute causally related, medically necessary and therefore reasonable treatment for her March 2004 work injuries. Under 21 V.S.A. §640(a), Defendant is obligated to pay for them.
17. I conclude that Claimant has not sustained her burden of proving that either physical therapy or chiropractic treatment is medically necessary at this time.4
18. As Claimant has substantially prevailed on her claim for benefits, she is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit her itemized claim.
ORDER:
Based on the foregoing Findings of Fact and Conclusions of Law, Defendant is hereby ORDERED to pay:
1. Medical benefits covering ongoing chronic pain management of Claimant’s current cervical and lower back conditions with appropriately prescribed pain medications and/or injection therapies, in accordance with 21 V.S.A. §640(a);
2. Medical benefits associated with Dr. Phillips’ proposed cervical fusion surgery, in accordance with 21 V.S.A. §640(a); and
3. Costs and attorney fees in amounts to be established, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 14th day of September 2012.
________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.
4 My conclusion in this regard should not be interpreted as precluding a finding of medical necessity for these treatments in the future, based on a treatment provider’s appropriate and credible recommendation or referral.

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

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

Pamela (Barrett) Simmons v. Landmark College Inc. (February 28, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Pamela (Barrett) Simmons Opinion No. 07-13WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Landmark College, Inc.
For: Anne M. Noonan
Commissioner
State File No. W-59833
OPINION AND ORDER
Hearing held in Montpelier, Vermont on March 1, 2012
Record closed on January 7, 2013
APPEARANCES:
Thomas Bixby, Esq., for Claimant
Bonnie Shappy, Esq., for Defendant
ISSUE PRESENTED:
Did Claimant’s May 2011 cervical surgery constitute reasonable medical treatment for her compensable March 2005 work injury?
EXHIBITS:
Joint Exhibit I: Medical Records
Claimant’s Exhibit 1: First Report of Injury
Claimant’s Exhibit 2: Agreement for Permanent Partial Disability Compensation (Form 22)
Claimant’s Exhibit 3: Ergonomic Work Site Evaluation, February 11, 2008
Claimant’s Exhibit 7: Letter from Attorney Bixby to Claimant, August 18, 2011
Claimant’s Exhibit 8: Summary of invoices from Attorney Bixby, July 31, 2011
Claimant’s Exhibit 9: Handwritten notes taken by Dr. Wieneke
Claimant’s Exhibit 10: Dr. Magnadottir deposition, September 14, 2012
Defendant’s Exhibit A: Curriculum vitae, Dr. Wieneke
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CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Medical benefits pursuant to 21 V.S.A. §640(a)
Vocational rehabilitation benefits pursuant to 21 V.S.A. §641
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
RULING ON POST-HEARING MOTIONS:
Motion to Strike Dr. Wieneke’s Post-Hearing Report
Because Claimant’s expert witness, Dr. Magnadottir, was not available to testify at the formal hearing, Defendant agreed to present its own expert witness, Dr. Wieneke, out of turn, with the proviso that he be allowed an opportunity to comment on Dr. Magnadottir’s testimony once her deposition was proffered post-hearing. Claimant asserts that the written report in which he did so merely restated his hearing testimony and therefore should be stricken as irrelevant. I disagree. The report contained opinion evidence germane to Dr. Magnadottir’s testimony. Claimant’s Motion to Strike is DENIED.
Motion for Directed Verdict
Claimant filed a motion for directed verdict on the issue of causal relationship. A motion for directed verdict was a form of pleading under both the civil and criminal rules of procedure. It has since been abolished and replaced, in the civil context with a Motion for Judgment as a Matter of Law, V.R.C.P. 50(a), and in the criminal context with a Motion for Judgment of Acquittal, V.R.Cr.P. 29. The purpose of such motions is to remove a case from consideration by a jury in situations where judgment for the moving party is required as a matter of law. Where there is no jury, as is the case in administrative proceedings such as this one, a post-hearing motion for judgment serves no purpose. Claimant’s Motion for Directed Verdict is therefore DENIED.
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim as well as the Commissioner’s prior decision in this claim, Barrett-Simmons v. Landmark College, Inc., Opinion No. 35-10WC (November 16, 2010). In addition, judicial notice is taken of the December 9, 2010 vocational rehabilitation report prepared by Claimant’s vocational rehabilitation counselor, Jay Spiegel.
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Claimant’s Work Injury and Prior Medical History
3. Claimant worked for Defendant as a housekeeper. On March 18, 2005 she slipped and fell on a wet floor. Claimant injured her neck and right shoulder in the fall. Defendant accepted this injury as compensable and paid workers’ compensation benefits accordingly.
4. Over the course of the next three years Claimant underwent three surgeries, including fusions at two cervical spine levels. Unfortunately, all of these surgeries failed. Her symptoms, which include pain, muscle spasms and limited range of motion in her neck and right shoulder, have persisted.
5. Following her third surgery, in February 2009 Claimant’s treating neurosurgeon, Dr. Magnadottir, determined that she had reached an end medical result. The Department later approved the parties’ proposed Agreement for Permanent Partial Disability Compensation (Form 22), by the terms of which Claimant received compensation for a 23.5 percent whole person permanent impairment referable to her cervical spine. The compensable injury was described in the Agreement as “right shoulder/upper back, C4-7.”
Claimant’s Fourth Cervical Surgery
6. In February 2011 Claimant returned to Dr. Magnadottir for another neurosurgical consult. She reported that over the course of the prior year her neck pain had been constant and her right shoulder pain had worsened. In addition, her symptoms now involved her right hand. Claimant described dropping things, making messes and burning her right hand while cooking. She had not suffered any new injuries, falls or motor vehicle accidents to account for these new and/or worsening symptoms.
7. Dr. Magnadottir’s physical examination revealed that Claimant exhibited symmetric motor function (except for some give-way weakness in the right deltoid) and symmetric reflexes and sensation, but a substantial amount of myofascial pain1 and tenderness bilaterally in the trapezoids and rhomboids. A review of Claimant’s cervical spine and right shoulder MRI at this office visit showed tendonitis and significant narrowing of the C5 foramen.
8. Dr. Magnadottir discussed Claimant’s potential treatment options with her. These included exercises, physical therapy and surgery. Claimant took some time to decide, and ultimately chose to pursue surgery. Once her decision was made, Dr. Magnadottir described Claimant as being “very strong” in her desire to proceed in this manner. I find that Claimant elected surgical treatment with full knowledge and understanding that it would not alleviate her major complaint of persistent myofascial right shoulder pain.
1 Myofascial pain is muscular pain that is very non-specific and difficult to diagnose. It is a non-radicular pain that does not follow a nerve root pattern. The affected muscle often has “trigger points,” that is, hyper-irritable spots and associated palpable nodules in skeletal muscle.
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9. In May 2011, Claimant underwent the fourth surgery, a procedure to decompress the C5 nerve root. As expected, the surgery did not alleviate the persistent myofascial pain in her right shoulder. The symptoms in her right hand have abated, though it is unclear why. Medically, there is no reason why nerve compression at the C5 level would have resulted in the symptoms Claimant reported, and therefore no reason why surgical decompression would have caused them to resolve.
Expert Medical Opinions
(a) Dr. Magnadottir
10. Dr. Magnadottir testified by deposition. She is a board certified neurosurgeon. She performed Claimant’s third cervical surgery in 2009, and her fourth surgery (the subject of the pending compensability dispute) in May 2011. In formulating her opinion as to the reasonableness of the latter surgery, Dr. Magnadottir did not review Claimant’s entire medical history, but rather relied on her knowledge of Claimant’s condition since she began treating her.
11. In Dr. Magnadottir’s opinion, Claimant’s May 2011 surgery was causally related to her compensable work injury. Claimant suffered from disc disease at the C5, C6 and C7 levels, and had undergone cervical fusion at the C5-6 level. According to the accepted medical literature, disc disease in one joint significantly contributes to the development of disc disease in adjacent joints as well.
12. As to the medical necessity of a fourth surgery, Dr. Magnadottir relied primarily on the fact that Claimant’s recent MRI showed her C5 foramen to be significantly narrowed. With this finding in mind, Dr. Magnadottir anticipated that repeat surgery at that level might relieve at least some of Claimant’s pain. However, Dr. Magnadottir did not refer Claimant for electrodiagnostic studies in order to determine whether there were objective signs of nerve damage at C5. Nor did she recommend that Claimant undergo diagnostic epidural injections in the C5 root, to see if she would experience any relief from pain at this root level. Dr. Magnadottir reasoned that even if there was relief, it would be short lived.
13. Dr. Magnadottir acknowledged that the May 2011 surgery would not address the persistent myofascial pain in Claimant’s right shoulder. She also acknowledged that Claimant’s pain complaints were all subjective in nature. Last, Dr. Magnadottir acknowledged that damage to the C5 nerve root would not in any way manifest itself in the type of hand symptoms Claimant was reporting. I find that these facts significantly undermine Dr. Magnadottir’s opinion that Claimant’s May 2011 surgery constituted reasonable and necessary medical treatment.
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(b) Dr. Wieneke
14. At Defendant’s request Dr. Wieneke, a board certified orthopedic surgeon, performed an independent medical examination of Claimant for the purpose of determining whether a fourth surgery would have constituted reasonable treatment for her 2005 work injury. Dr. Wieneke had evaluated Claimant previously and therefore was familiar with her medical history.2 Before performing his most recent examination, Dr. Wieneke also reviewed all of Claimant’s past and current medical records.
15. In Dr. Wieneke’s opinion, Claimant’s fourth surgery did not constitute reasonable and necessary medical treatment. He based this opinion on the following:
• Prior to 2011, all of Claimant’s EMG studies were negative, indicating no C5 nerve root damage that would warrant surgery;
• There was no current electrodiagnostic evidence of radiculopathy to confirm Claimant’s current complaints of pain;
• Claimant’s give-way weakness in her right deltoid was a Waddell sign, which suggested a psychological component to her pain complaints;
• The C5 nerve root distribution does not manifest itself in the hand, and therefore damage or compression at that level would not explain Claimant’s most recent symptoms; and
• Claimant had already undergone three major cervical surgeries with virtually no improvement and little likelihood of success with a fourth surgery.
16. I find Dr. Wieneke’s review and knowledge of Claimant’s medical condition extensive and his opinions well supported by objective evidence.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2 Dr. Wieneke evaluated Claimant’s case on four different occasions. He performed independent medical examinations of Claimant in 2006, 2009 and October 2011. He performed a records review in May 2011.
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2. At issue here is whether Claimant’s May 2011 surgery is compensable. Vermont’s workers’ compensation statute obligates an employer to pay only for those medical treatments that are determined to be both “reasonable” and causally related to the compensable injury. 21 V.S.A. §640(a); MacAskill v. Kelly Services, Opinion No. 04-09WC (January 30, 2009). The commissioner has discretion to determine what constitutes “reasonable” medical treatment given the particular circumstances of each case. Id. A treatment can be unreasonable either because it is not medically necessary or because it is not related to the compensable injury. Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January 20, 2011).
3. Here, the condition for which Claimant sought surgery in 2011 involved significant narrowing of her C5 foramen and persistent right shoulder pain. Both of these conditions were well within the terms of the approved Form 22 agreement pursuant to which Defendant paid permanency benefits in 2009. Claimant did not suffer any other injuries subsequently, such as a motor vehicle accident or new slip and fall incident, that might account for her ongoing and/or worsening symptoms. Considering all of the credible evidence, I conclude that the neck and right shoulder pain for which she sought additional treatment in 2011 was causally related to her accepted work injuries.
4. Having concluded that Claimant’s need for ongoing treatment is causally related to her compensable work injuries, I next consider whether the treatment at issue was medically necessary. This determination is based on evidence establishing the likelihood that it would improve the patient’s condition, either by relieving symptoms and/or by maintaining or increasing functional abilities. Cahill v. Benchmark Assisted Living, Opinion No. 13-12WC (April 27, 2012); Quinn v. Emery Worldwide, Opinion No. 29-00WC (September 11, 2000).
5. Conflicting medical testimony was offered as to the reasonableness of Claimant’s fourth cervical surgery. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
6. Here, based primarily on the second and third factors, I conclude that Dr. Wieneke’s opinion was more persuasive than Dr. Magnadottir’s. Dr. Wieneke had the advantage of reviewing Claimant’s entire medical history. More important, his opinions were clear, thorough and corroborated by objective evidence. Given that (1) the C5 nerve root distribution does not manifest itself in the hand; (2) no objective tests were performed to identify the C5 level as the pain generator for Claimant’s complaints; and (3) surgery clearly would not relieve the myofascial pain in Claimant’s shoulder, Dr. Wieneke credibly concluded that surgery was not a reasonable treatment option for the symptoms of which she complained. The fact that Claimant already had undergone three failed surgeries with no significant pain relief was a strong contraindication as well.
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7. In contrast, given both Claimant’s medical history and the nature of her ongoing complaints, Dr. Magnadottir failed to explain adequately why a fourth surgery was justified.
8. I conclude that Claimant has failed to sustain her burden of proving that her May 2011 cervical surgery constituted reasonable medical treatment, such that Defendant should be obligated to pay for it. Therefore, her claim for workers’ compensation benefits must fail.
9. As Claimant has failed to prevail on her claim for benefits, she is not entitled to an award of costs or attorney fees.
ORDER:
Based on the foregoing Findings of Fact and Conclusions of Law, Claimant’s claim for workers’ compensation benefits referable to her May 2011 cervical surgery is hereby DENIED.
DATED at Montpelier, Vermont this 28th day of February 2013.
________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Paula Perry v. State of VT, Office of Attorney General (April 25, 2013)

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

Paula Perry v. State of VT, Office of Attorney General (April 25, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Paula Perry Opinion No. 13-13WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
State of Vermont,
Office of Attorney General For: Anne M. Noonan
Commissioner
State File No. J-22042
OPINION AND ORDER
Hearing held in Montpelier on January 2, 2013
Record closed on February 19, 2013
APPEARANCES:
Heidi Groff, Esq., for Claimant
Keith Kasper, Esq., for Defendant
ISSUE PRESENTED:
Do various medications either previously or currently prescribed as treatment for Claimant’s May 1, 1996 compensable work injury constitute reasonable medical treatment under 21 V.S.A. §640(a)?
EXHIBITS:
Joint Exhibit I: Medical records, October 26, 2011 – November 5, 2012
Joint Exhibit II: Prior medical records (on disc)
Claimant’s Exhibit 1: Curriculum vitae, John Matthew, M.D.
Claimant’s Exhibit 2: Dr. Matthew deposition, November 6, 2012
Claimant’s Exhibit 3: Medication list, 4/19/12-10/30/12
Claimant’s Exhibit 4: Prescription payment spreadsheet
Claimant’s Exhibit 5: Pharmacy prescription payment records
Claimant’s Exhibit 6: Trial memo/summary of arguments
Claimant’s Exhibit 7: Formal hearing decision, Perry v. State of Vermont, Office of Attorney General, Opinion No. 01-08WC (February 1, 2008)
Defendant’s Exhibit A: Curriculum vitae, Jonathan Sobel, M.D.
CLAIM:
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Medical benefits pursuant to 21 V.S.A. §640(a)
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was 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. Judicial notice also is taken of the commissioner’s prior decision in Perry v. State of Vermont, Office of Attorney General, Opinion No. 01-08WC (February 1, 2008).
3. Claimant worked for Defendant as an administrative assistant. On May 1, 1996 she injured her lower back while lifting some files at work. As a consequence of that injury, and despite two subsequent lumbar spine surgeries, she continues to suffer from chronic low back pain, radicular (nerve root) pain into her legs and at times, depression. She has never returned to work.
4. On January 18, 2000 the Department approved the parties’ proposed Form 14 (Medical Benefits Open) Settlement Agreement. By the terms of that agreement, Claimant received $275,000.00 in full and final settlement of her claim for workers’ compensation indemnity benefits. Defendant remained obligated to pay for whatever ongoing medical treatments, including prescription medications, were established to be reasonable under 21 V.S.A. §640(a).
5. In addition to the chronic pain referable to her work-related injury, Claimant suffers from a number of unrelated medical conditions as well, including diabetes, anemia, hypertension, obesity, hypothyroidism and gastroesophageal reflux disease, or GERD. Over the course of many years, Claimant’s primary care physician, Dr. Matthew, has prescribed numerous medications as treatment for these conditions. Dr. Matthew is board certified in both internal and family medicine. As such, I find that he is well qualified to determine an appropriate medication regimen for patients who suffer from multiple, inter-related chronic medical conditions. Furthermore, while he holds no specific certification in pain management, I find that in his role as a primary care provider he has developed credible expertise in the effective use of pharmacology to treat chronic pain patients.
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6. Defendant first questioned its responsibility for some of the medications Dr. Matthew had prescribed as treatment for Claimant’s injury-related chronic pain in April 2003. Following a formal hearing in 2008, the commissioner determined that the following medications were both medically necessary and causally related, and therefore that Defendant was obligated to pay for them:
• Amantadine, which Dr. Matthew had prescribed for chronic pain;
• Trileptal and Keppra, prescribed for neuropathic pain;
• Ritalin (methylphenidate), a stimulant prescribed as an adjunctive medication for depression;
• Clonazepam and Lorazepam, prescribed as sleep aids; and
• Lasix (furosemide), a diuretic prescribed to reduce the swelling in Claimant’s ankles caused by weight gain and inactivity, and Klor-con, a supplement prescribed to counteract Lasix’ potassium-wasting side effect.1
7. In accordance with the commissioner’s 2008 opinion and order, for the next four years Defendant paid for the above prescription medications and others as well, including oxycodone and Cymbalta.
8. At Dr. Matthew’s referral, in October 2011 Claimant underwent an evaluation with Dr. Fama, a rheumatologist, for complaints of joint pain involving her spine, shoulders, hips, knees, ankles, wrists and fingers. Dr. Fama noted Claimant’s extensive prior medical history, including not only the conditions listed above, see Finding of Fact No. 5 supra, but also depression, chronic lumbar radiculopathy, osteoarthritis in her knees and degenerative joint disease in her hips.
9. Dr. Fama diagnosed Claimant with two conditions relevant to her rheumatic evaluation: (1) osteoarthritis involving her spine, hips, knees, feet and probably shoulders; and (2) diffuse idiopathic skeletal hyperostosis, or DISH. The latter condition is a degenerative process in which bony growths and calcifications occur not only in the spine but also in peripheral joints such as the hands and ankles. DISH can cause severe, disabling pain and stiffness in the tendons and ligaments of multiple joints. The specific cause of the condition is not yet known; it has been associated with metabolic syndromes, such as diabetes, or it might be genetically derived. Its diagnosis in Claimant’s case is likely not related in any way to her May 1996 work injury.
1 The commissioner’s 2008 formal hearing decision absolved Defendant of responsibility for two medications – Plaquenil (hydroxychloroquine), used to treat inflammatory arthritis, and Prilosec (omeprazole), used to treat GERD – on the grounds that they were not causally related to Claimant’s compensable work injury. Neither of these medications is at issue in the current dispute.
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10. As treatment for the two conditions she diagnosed, Dr. Fama recommended that Claimant stop taking methotrexate, a drug Dr. Matthew previously had prescribed for pain and inflammation in her shoulders and hip girdle, because of its unclear benefit and deleterious side effects. Aside from endorsing her continued use of narcotic medications for pain control, Dr. Fama did not otherwise comment on Claimant’s medication regimen.
11. I find that Dr. Fama’s comments, as to both diagnosis and treatment, were intentionally limited to conditions within her expertise as a rheumatologist. Thus, the fact that she did not discuss in her office note the causal relationship between Claimant’s 1996 work injury and her chronic low back and radicular pain does not mean that she rejected the possibility that such a relationship existed. Nor do I take Dr. Fama’s failure to comment on those aspects of Dr. Matthew’s medication regimen that were directed at Claimant’s injury-related symptoms as an indication that she disagreed with his treatment approach.
Expert Medical Opinions as to Claimant’s Current Medication Regimen
12. At Defendant’s request, in January 2012 Dr. Sobel reviewed Claimant’s medical records for the purpose of determining whether her current medication regimen was medically necessary and causally related to her 1996 work injury. Later, he reviewed Claimant’s more recent medical records, as well as Dr. Matthew’s deposition testimony. Dr. Sobel is a board certified orthopedic surgeon. In the course of his practice, he frequently has treated patients with chronic pain complaints arising from spinal injuries and dysfunction.
13. Citing Claimant’s numerous medical problems, and what he characterized as “increasingly painful whole body symptoms” over the course of the past several years, to a reasonable degree of medical certainty Dr. Sobel concluded that her chronic pain syndrome is likely no longer related in any way to her 1996 work injury. To the contrary, in his opinion Dr. Fama’s diagnosis of both DISH and generalized osteoarthritis fully account for Claimant’s ongoing symptoms. According to Dr. Sobel, those and other non-work-related systemic conditions have driven Claimant’s need for the various medications Dr. Matthew has prescribed, not her work injury.
14. With Dr. Sobel’s expert opinion as support, effective February 20, 2012 the Department approved Defendant’s discontinuance of the following prescription medications on the grounds that they were not causally related to Claimant’s 1996 work injury:
• Amantadine
• Trileptal
• Keppra
• Ritalin
• Clonazepam
• Lorazepam
• Lasix
• Klor-con
• Oxycodone
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15. Beyond concluding that Claimant’s work injury was no longer driving her need for any of the above medications, in his formal hearing testimony Dr. Sobel also questioned whether some of the drugs were being used in an off-label context, and therefore might not be medically appropriate in her case. Specifically:
• Amantadine. According to Dr. Sobel, this drug is primarily used to treat movement disorders such as Parkinson’s disease; in his experience it would not typically be prescribed for the type of low back and radicular pain from which Claimant suffers.
• Trileptal and Keppra. These are anti-seizure medications; Dr. Sobel speculated that they might have been prescribed off-label for pain control and depression.
• Ritalin. Ritalin’s primary use is in patients with adult attention deficit disorder; Dr. Sobel assumed it was prescribed in Claimant’s case for an off-label use, though he did not specify in what context or for what purpose.
16. Dr. Sobel admitted that he had no specific knowledge as to when, by whom or for what purpose the medications listed above were prescribed, or even whether Claimant was still taking them as of the date of his medical records review. I find his conclusion that these medications were inappropriately prescribed and therefore not medically necessary to be somewhat weakened as a result.
17. As for the other medications covered by Defendant’s discontinuance:
• Clonazapam and Lorazepam. Dr. Sobel characterized Clonazapam as an anti-anxiety drug, and Lorazepam as a tranquilizing medication. Again, he was unaware whether Claimant was still using these drugs as of the date of his records review.
• Lasix and Klor-con. Dr. Sobel asserted that Claimant’s use of these medications could not be related in any way to her 1996 work injury. From his review of the medical records, he surmised that the fluid retention and edema these drugs were designed to treat were causally related to other medical conditions from which she suffered, such as congestive heart failure and high blood pressure. To the extent the commissioner determined otherwise in the context of her 2008 formal hearing decision, Dr. Sobel declared that this was a mistake.
• Oxycodone. Dr. Sobel did not state an opinion as to whether Claimant’s continued use of this narcotic was medically appropriate.
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18. Claimant’s current medication regimen still includes Amantadine, Lasix, Klor-con and oxycodone. She also takes Cymbalta, a pain control and antidepressant medication, and more recently added Marinol as well, another pain control medication.2 She no longer takes Trileptal, Keppra, Ritalin, Clonazepam or Lorazepam. As Dr. Matthew credibly testified, finding the most effective combination of drugs and dosages is often a matter of trial and error, particularly when a new medication is introduced. As a result, alterations such as this to a chronic pain patient’s pharmaceutical treatment plan are not unusual.
19. In his deposition testimony, Dr. Matthew emphatically defended his medication choices. Although some of the drugs he has prescribed are being used in a manner not specifically endorsed by the Physician’s Desk Reference (PDR), all comport with the protocols and guidelines developed in his practice group for treating chronic pain patients. Specifically:
• Amantadine. Though identified in the PDR for use in treating both Parkinson’s disease and influenza, according to Dr. Matthew Amantadine is also of “enormous help” in treating chronic pain. Patients who use narcotic pain medications chronically often develop a hypersensitivity to pain. Once that occurs, they require ever-increasing dosages to combat a steadily decreasing pain threshold. Amantadine reverses the sensitization process, and thus allows the patient to realize more effective pain control at a lower narcotics dosage.
• Trileptal and Keppra. As Dr. Sobel correctly surmised, Dr. Matthew prescribed these anti-seizure medications off-label, because they have proven helpful in managing radicular pain.
• Ritalin. Dr. Matthew prescribed this drug to combat the sleepiness that accompanied Claimant’s use of narcotic pain medications.
20. As for the other medications Dr. Matthew is now prescribing:
• Lasix and Klor-con. As he did in the context of the 2008 formal hearing, Dr. Matthew defended Claimant’s need for these drugs as causally related to her 1996 work injury. The fluid retention and edema they are designed to treat have resulted in part from inactivity and weight gain caused by her work injury. In addition, the narcotic medications necessitated by her injury-related pain are also a contributing factor. These drugs aggravate Claimant’s alveolar hypoventilation, a condition that restricts her breathing and causes further fluid retention and edema.
2 Although these medications were not listed in Defendant’s February 2012 discontinuance notice, both parties introduced expert evidence as to whether Claimant’s need for them was causally related to her work injury. I therefore consider them to be at issue here.
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• Cymbalta and Marinol. Claimant has long taken Cymbalta for management of her chronic low back and radicular pain. With the recent addition of Marinol, a drug derived from tetrahydrocannabinol, the active ingredient in marijuana, she has been able to cut her use of Cymbalta in half.
• Oxycodone. Claimant continues to require this narcotic medication for pain control, but at a significantly diminished dosage level given her greater reliance on non-narcotics such as Cymbalta and Marinol instead.3 As a result, she no longer requires Clonazepam, Lorazepam or Ritalin.
21. Dr. Matthew strongly asserted that he is better positioned to evaluate the causal relationship between Claimant’s work injury and her chronic pain than either Dr. Sobel or Dr. Fama. He respects Dr. Fama’s expertise as a rheumatologist, and does not disagree with her diagnosis of DISH as a likely cause of Claimant’s diffuse joint pain. However, having treated Claimant for many years, he is confident that the chronic pain from which she suffers, focused as it is primarily in her lower back and legs, derives not from that condition but rather from her 1996 work injury. I find Dr. Matthew’s assertions in this regard both credible and convincing.
22. Claimant submitted pharmacy records documenting a total of $17,231.68 in third-party insurance payments and $605.39 in patient co-payments, all for medications prescribed by Dr. Matthew as treatment for her 1996 work injury. Defendant did not introduce any contrary evidence, and therefore I find that the records submitted accurately reflect the amounts so paid.
CONCLUSIONS OF LAW:
1. The disputed issue in this claim is whether Defendant is obligated to pay for Claimant’s chronic pain medication regimen as reasonable treatment for her compensable May 1996 work-related low back injury. Defendant asserts that it is not, both because her current complaints are unrelated to her work injury and/or because at least some of the medications at issue are not medically necessary.
2. Vermont’s workers’ compensation statute obligates an employer to pay only for those medical treatments that are determined to be both “reasonable” and causally related to the compensable injury. 21 V.S.A. §640(a); MacAskill v. Kelly Services, Opinion No. 04-09WC (January 30, 2009). The commissioner has discretion to determine what constitutes “reasonable” medical treatment given the particular circumstances of each case. Id. A treatment can be unreasonable either because it is not medically necessary or because it is not related to the compensable injury. Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January 20, 2010).
3 Contrary to Defendant’s assertion, the medical records do substantiate Dr. Matthew’s claim that Claimant’s oxycodone dosage level has decreased with greater reliance on Cymbalta and Marinol. She still takes two 20-milligram tablets per dose, but now only three times daily rather than four. In addition, whereas in prior years she required both fast-acting and controlled release oxycodone, currently she takes only the controlled-release formulation.
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3. The parties presented conflicting expert testimony on both of these factors. In such cases, the commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
4. Considering all of these factors, I conclude here that Dr. Matthew’s opinions, as to both causal relationship and medical necessity, are more credible than Dr. Sobel’s. Dr. Matthew has been Claimant’s treating physician for many years. Given the nature and extent of that relationship, his ability to differentiate between Claimant’s injury-related chronic low back and leg pain and the diffuse joint pain that led to Dr. Fama’s more recent DISH diagnosis was credible and convincing. Similarly, his pharmacological treatment plan reflects years of trial, error and revision. With constant attention, he has managed to achieve what in Claimant’s case must be deemed a successful outcome – maintaining effective pain control with fewer drugs and lower narcotic dosages.
5. In contrast, Dr. Sobel’s causation opinion was based entirely on an assumption – that Dr. Fama’s diagnosis necessarily excluded all other possible causes for Claimant’s ongoing pain – which I have specifically rejected. That he was personally unfamiliar with the specific nature of her injury-related symptoms was evident not only in this regard but also as to the various drugs comprising her medication regimen. For Dr. Sobel to conclude that certain medications were not medically necessary without knowing who prescribed them or for what purpose indicates an unacceptable lack of clarity, thoroughness and objective support. For these reasons, I reject his opinions as unpersuasive.
6. I conclude that Claimant has sustained her burden of proving that her current medication regimen, as prescribed and managed by Dr. Matthew, is both medically necessary and causally related to her 1996 compensable work injury. It therefore constitutes reasonable medical treatment under 21 V.S.A. §640(a).
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7. Specifically, I conclude that the following prescription medications have been, and/or continue to be, compensable under 21 V.S.A. §640(a):
• Amantadine
• Trileptal
• Keppra
• Ritalin
• Clonazepam
• Lorazepam
• Lasix
• Klor-con
• Oxycodone
• Cymbalta
• Marinol
8. Having found the above medications compensable, I conclude that Defendant is obligated to reimburse Claimant for prescription co-payments totaling $605.39. In addition, should any third-party payor assert a lien or claim repayment for prescriptions, Defendant is obligated to reimburse them accordingly.4
9. As Claimant has prevailed on her claim for benefits, she is entitled to an award of costs and attorney fees. She has submitted a request for costs totaling $227.64, and these are awarded. As for attorney fees, in accordance with 21 V.S.A. §678(e) Claimant shall have 30 days from the date of this opinion within which to submit her itemized claim.
4 I decline to grant Claimant’s request that reimbursement due to third-party payors be paid to her first. This is a matter for resolution directly between Defendant and the payors. See, Avdibegovic v. University of Vermont, Opinion No. 06-09WC (February 23, 2009).
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Medical benefits covering reasonable treatment for Claimant’s compensable 1996 work-related injury, including but not limited to the prescription medications listed in Conclusion of Law No. 7 above, in accordance with 21 V.S.A. §640(a);
2. Reimbursement to Claimant for prescription co-payments totaling $605.39, with interest as calculated in accordance with 21 V.S.A. §664;
3. Reimbursement to any third-party payor who asserts a lien and/or claims repayment for any of the prescriptions listed in Conclusion of Law No. 7 above, with interest as calculated in accordance with 21 V.S.A. §664 if so demanded by the payor;
4. Litigation costs totaling $227.64 and attorney fees in an amount to be determined, in accordance with 21 V.S.A. §678(a).
DATED at Montpelier, Vermont this 25th day of April 2013.
__________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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

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

Tammy Randall v. Health Services Group (March 12, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Tammy Randall Opinion No. 09-13WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Health Services Group
For: Anne M. Noonan
Commissioner
State File No. AA-59997
OPINION AND ORDER
Hearing held in Montpelier, Vermont on October 15, 2012
Record closed on December 24, 2012
APPEARANCES:
Mark McQuerry, Esq., for Claimant
David Berman, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant’s cervical spine condition causally related to her February 9, 2009 compensable work injury?
2. If so, does Dr. Robbins’ proposed cervical surgery constitute reasonable medical treatment under 21 V.S.A. §640(a)?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Curriculum vitae, Dr. Robbins
Defendant’s Exhibit A: Curriculum vitae, Dr. Kirkpatrick
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640(a)
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant worked for Defendant as a cook and kitchen aide.
Claimant’s Prior Medical History
4. In October 2007 Claimant sustained an injury at work, when two trays of food fell off a delivery cart while she was bending over and hit her in the back of her head. Claimant treated for this injury at the Southwestern Vermont Medical Center emergency room, where she was noted to have matted food in her hair, tenderness in the back of her head and temporarily blurred vision. She did not lose consciousness, and her symptoms resolved quickly.
Claimant’s Work Injury and Course of Treatment
5. Claimant credibly described that while working her normal shift on February 5, 2009 she had occasion to retrieve a box of bagels from Defendant’s walk-in freezer. The bagels were on a shelf that was shoulder high, and she did not realize that two five-gallon tubs of ice cream were resting on the back of the box. As she pulled the box off the shelf, one of the ice cream tubs fell forward towards her. To avoid being hit in the face, Claimant jerked her head back and away. As she did so, she heard a pop in her shoulder and immediately felt burning pain from her left neck into her shoulder and down her left arm.
6. On February 9, 2009 Claimant presented to her primary care physician, Dr. Carroll, with what she described as steadily increasing left shoulder pain that had begun four days ago. At the time, Claimant did not report having suffered a specific injury as a result of the February 5th incident. Dr. Carroll prescribed oral steroids and determined that she was unable to work. Claimant has not returned to work since.
7. At her next two visits to Dr. Carroll, Claimant reported that her symptoms included tingling up to her neck and around the back of her shoulder. In early March 2009 she described tenderness when her left trapezius was palpated. The trapezius is the main stabilizing muscle that attaches to the base of the skull and runs all the way to the shoulders and down the middle of the back. I find that when Claimant reported tenderness in that area, she thus was implicating both her shoulder and her neck.
8. Claimant’s symptoms failed to improve with conservative treatment, and in fact worsened with physical therapy. In March 2009 she was referred to Dr. Nofziger, an orthopedic surgeon and shoulder specialist, for further evaluation.
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9. At her first visit with Dr. Nofziger, Claimant described her pain as being all around her left shoulder blade, around the shoulder and down her arm. An MRI study showed no evidence of a frank rotator cuff tear, but did reveal a labral tear. Dr. Nofziger prescribed conservative treatment, but still Claimant failed to improve.
10. Fearing a cervical or brachial nerve component to Claimant’s pain, in July 2009 Dr. Nofziger recommended that she undergo electrodiagnostic testing. This she did, in August 2009. Both EMG and nerve conduction tests were negative.
11. Conservative therapies having proved ineffective at resolving her pain, in November 2009 Claimant underwent surgery, during which Dr. Nofziger repaired her labral tear and compressed her shoulder.
12. Claimant’s condition did not improve with surgery, and her symptoms persisted throughout 2010. In January 2011, she underwent a second shoulder surgery. Thereafter, the pain in her shoulder joint improved, but the pain she described over her shoulder blade and in her neck continued. I find that by these descriptions Claimant likely was referring to the same symptoms of which she had complained since shortly after her February 2009 work injury.
13. In June 2011 Dr. Nofziger recommended that Claimant undergo a cervical spine MRI to ascertain whether there might be a cervical component to her pain. Although this was the first treatment recommendation specifically targeting her neck, I find that the symptoms that prompted Dr. Nofziger’s suggestion had been ongoing since Claimant’s February 2009 work injury. The MRI revealed a congenital fusion at the C4-5 disc level, with significant disc space narrowing and a rather large bone spur at C5-6. Thereafter, Dr. Nofziger referred Claimant to Dr. Robbins, a spine specialist, for further evaluation.
14. In February 2012 Claimant first saw Dr. Robbins. She described neck pain that radiated into her left shoulder, and when Dr. Robbins examined her she was tender to touch both over the left trapezius and at C5-6. A Spurling’s test, which is used to diagnose cervical nerve root compression, was positive at the C5 level. There were negative impingement signs in the left shoulder, however, indicating that this likely was not the source of her ongoing pain.
15. At a second office visit with Dr. Robbins in April 2012, Claimant exhibited identical symptoms. As treatment, Dr. Robbins has recommended surgery to decompress the C5 nerve root, excise the existing C5-6 bone spur and fuse the discs at that level.
16. Supported by its own medical expert, Dr. Kirkpatrick, in March 2012 Defendant sought to terminate both temporary total disability and medical benefits (including coverage for Dr. Robbins’ proposed surgery), on the grounds that Claimant’s cervical condition was not causally related to her work injury. The Department approved the discontinuance effective March 15, 2012.
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Expert Medical Opinions
(a) Dr. Robbins
17. Dr. Robbins is a board certified orthopedic surgeon, specializing in the spine. As noted above, he saw Claimant on two occasions. He also reviewed her medical records.
18. In Dr. Robbins’ opinion, as a result of the February 2009 incident at work Claimant likely suffered an injury to her cervical spine, which resulted in the C5 nerve root compression now apparent on MRI. He based this opinion on the following:
• The mechanism of Claimant’s injury – jerking her head back and away to avoid being hit in the face by the falling tub of ice cream – was consistent with an extension and rotation injury at the C5 level;
• As is documented in virtually every physician’s office note after the February 2009 incident, Claimant consistently complained of trapezial pain, that is, pain both between the shoulder blades and in the neck. The trapezius is the main referral point for neck pain, and therefore this is exactly where a compression-type injury to the C5 nerve root would manifest itself; and
• Claimant’s positive Spurling’s test on examination constituted objective evidence of C5 nerve root compression.
19. I find Dr. Robbins’ analysis as to the causal relationship between Claimant’s February 2009 work injury and the compression of her C5 nerve root to be very persuasive. I also find persuasive Dr. Robbins’ conclusion that neither Claimant’s pre-existing C5 bone spur nor her congenital C4-5 fusion are likely causes of her ongoing trapezial and neck pain. These conditions were completely asymptomatic prior to February 2009.
20. I acknowledge that at one point in his testimony Dr. Robbins mistakenly confused the details of Claimant’s October 2007 work-related injury, Finding of Fact No. 4 supra, in which falling meal trays hit her in the head and caused her hair to become matted with food, with those of the February 2009 incident at issue here. His erroneous reference to these records does indicate some inattention to detail. However, Dr. Robbins’ grasp of Claimant’s medical records from February 2009 forward evinces a clear understanding of both the mechanism of her injury and the symptoms she consistently reported thereafter. Thus, taken in context I find his mistake inconsequential.
21. With regard to his proposed treatment, Dr. Robbins believes that surgical decompression, excision and fusion at the C5-6 level will likely relieve Claimant’s neck pain. In his opinion, initially Claimant’s shoulder injury was both more obvious in its presentation and more significant; as a result, for many years her neck injury was “running along as a step-child.” Now that Dr. Nofziger’s surgeries have alleviated at least some of the pain in Claimant’s shoulder joint, the pain that remains is likely cervical in origin and should respond to surgical treatment. I find this reasoning persuasive.
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(b) Dr. Kirkpatrick
22. Dr. Kirkpatrick is a board certified orthopedic surgeon. At Defendant’s request he conducted two independent medical examinations of Claimant, one in August 2011 and the other in May 2012. Dr. Kirkpatrick also reviewed Claimant’s pertinent medical records prior to his testimony.
23. Dr. Kirkpatrick diagnosed Claimant with shoulder impingement syndrome causally related to her February 2009 work injury. In his opinion, her cervical symptoms are not causally related to that injury, for the following reasons:
• The medical records contemporaneous to Claimant’s February 2009 injury do not report any complaints, signs or symptoms of neck pain; and
• Claimant’s mechanism of injury does not support a finding of neck trauma.
24. Rather than her work injury being the catalyst for Claimant’s neck symptoms, in Dr. Kirkpatrick’s opinion it is more likely that her congenital C4-5 fusion and C5-6 bone spur, both of which pre-existed her work injury, caused stress to her C5 nerve root and resulted in the symptoms that Dr. Nofziger first addressed in June 2011. Thus, Dr. Kirkpatrick believes that Claimant’s current course of treatment, as well as Dr. Robbins’ proposed surgery, have been necessitated by her pre-existing conditions, not by her February 2009 work injury.
25. I do not find Dr. Kirkpatrick’s opinion persuasive. Claimant’s medical records from February 2009 forward are replete with entries in which Claimant complained of pain between her shoulder blades and was noted on examination to be tender to palpation in her left trapezius. As noted above, Finding of Fact No. 18 supra, the trapezius muscle is a referral point for neck pain, and therefore these references do in fact encompass the C5 nerve root symptoms later documented on MRI.
26. Dr. Kirkpatrick did agree that the motion involved in forcefully jerking one’s neck potentially can cause a cervical injury. He further agreed that after Claimant’s first shoulder surgery her left shoulder was no longer a pain generator.
27. In Dr. Kirkpatrick’s opinion, Dr. Robbins’ proposed cervical surgery is not reasonable, both because it is not causally related to her work injury and because it is not likely to be successful. In his analysis, Claimant already has undergone two shoulder surgeries, both of which he would characterize as failures. A third surgery to address her neck condition is likely to be unsuccessful as well. In fact, however, Claimant’s neck pain has only recently become the focus of any specifically directed treatment, separate and apart from treatment targeted at her shoulder joint. That being the case, Dr. Kirkpatrick has not explained adequately how it is that the benefit Claimant derived (or not) from her shoulder surgeries is likely to be an accurate predictor of whether she will (or will not) benefit from cervical surgery. For that reason, I find his opinion less persuasive than Dr. Robbins’.
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(c) Dr. Nofziger
28. Dr. Nofziger is a board certified orthopedic surgeon specializing in the shoulder. In April 2012, at the request of Defendant’s attorney, he wrote a letter in which he stated to a reasonable degree of medical certainty that Claimant’s neck problems were worsened or exacerbated by her shoulder injury. Dr. Nofziger did not detail the reasons for his opinion or the factual evidence supporting it. Therefore, I do not find his opinion persuasive on the causal relationship issue.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The first issue presented here is whether Claimant’s cervical spine condition is causally related to her February 2009 work injury. Claimant asserts that it is, as the injury she suffered encompassed both her shoulder and her neck. Defendant argues to the contrary. It asserts that Claimant’s cervical symptoms are the result of her congenital fusion at C4-5 and her pre-existing bone spur, both chronic, pre-existing conditions.
3. The parties presented conflicting expert medical evidence as to this issue. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
4. Based primarily on the third factor, I conclude that Dr. Robbins’ opinion is the most persuasive. His analysis of the mechanism of Claimant’s injury as consistent with a resulting C5 nerve root compression was convincing. In addition, his conclusion that Claimant’s complaints of pain in and around her shoulder blade and trapezius muscle likely encompassed cervical pain was credible as well.
5. I conclude that Claimant has sustained her burden of proving that her current neck symptoms and cervical condition are causally related to her February 2009 work injury.
6. The second issue is whether Dr. Robbins’ proposed cervical surgery constitutes reasonable medical treatment. I conclude that it is.
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7. Vermont’s workers’ compensation statute, 21 V.S.A. §640(a), obligates an employer to pay only for “reasonable” medical treatments. A treatment can be unreasonable either because it is not medically necessary or because it is not related to the compensable injury. Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January 20, 2011). Having already concluded that Claimant’s cervical condition is causally related to her compensable injury, the only remaining question is whether the proposed surgery is medically necessary and appropriate.
8. Again, I conclude that Dr. Robbins’ opinion on this issue is more persuasive than Dr. Kirkpatrick’s. Dr. Robbins aptly recognized the extent to which Claimant’s neck injury was largely ignored for more than two years, while the primary treatment focus remained on her left shoulder. As a result, Claimant has only recently had the benefit of treatment directed more specifically at her neck. Conservative therapies having failed, cervical spine surgery is now an appropriate option.
9. In summary, I conclude that Claimant has sustained her burden of proving that her current cervical condition is causally related to her accepted February 2009 work injury. I further conclude that she has not yet reached an end medical result, and that Dr. Robbins’ proposed surgery constitutes reasonable treatment.
10. As Claimant has prevailed on her claim for benefits, she is entitled to an award of costs and attorney fees in accordance with 21 V.S.A. §678(e). Claimant has submitted a request for expenses totaling $2,857.58 and attorney fees totaling $6,187.50. Defendant has not filed specific objections to any of the requested costs or fees. An award of costs to a prevailing claimant is mandatory under 21 V.S.A. §678(a), and therefore these are awarded. As for attorney fees, these lie within the Commissioner’s discretion. I find they are appropriate here, and therefore these are awarded as well.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total disability benefits retroactive to March 15, 2012 in accordance with 21 V.S.A. §642, with interest as calculated pursuant to 21 V.S.A. §664;
2. Medical benefits covering all reasonable medical services and supplies causally related to treatment of Claimant’s cervical spine condition, in accordance with 21 V.S.A. §640; and
3. Costs totaling $2,857.58 and attorney fees totaling $6,187.50, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 12th day of March 2013.
____________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Diana Farnham v. Shaw’s Supermarkets (March 29, 2013)

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

Diana Farnham v. Shaw’s Supermarkets (March 29, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Diana Farnham Opinion No. 11-13WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Shaw’s Supermarkets
For: Anne M. Noonan
Commissioner
State File No. X-61625
OPINION AND ORDER
Hearing held in Montpelier, Vermont on November 16, 2012
Record closed on January 14, 2013
APPEARANCES:
Charles Powell, Esq., for Claimant
Christopher Callahan, Esq., for Defendant
ISSUES PRESENTED:
1. Did Claimant suffer a compensable psychological injury as a result of her May 3, 2006 work-related accident?
2. If yes, is her treatment medically reasonable?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Video of Dr. Rater’s examination
Defendant’s Exhibit A: Curriculum vitae, Dr. Rater
CLAIM:
Medical benefits pursuant to 21 V.S.A. §640
Costs and attorney fees pursuant to 21 V.S.A. §678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file
relating to this claim.
Claimant’s May 2006 Work-Related Accident
3. Claimant began working in the deli department of Defendant’s supermarket. Later she moved to the produce department. Subsequently she was promoted to the front of the store, where she oversaw the cashiers. Her most recent position was that of inventory manager.
4. Claimant’s duties as inventory manager required her to traverse the store with a barcode scanning device, which she used to count the products on the shelves in each aisle. As she did so throughout the day, she regularly encountered and conversed with customers. Claimant credibly described how much she enjoyed interacting with people in this way.
5. On May 3, 2006 Claimant slipped and fell while climbing a set of recently waxed stairs. As she did so, her right hand caught in the railing bracket. She immediately felt pain in her right wrist, thumb and ankle. At her supervisor’s direction, she completed her shift, and then sought treatment at the emergency department. X-rays revealed no fractures. Claimant was diagnosed with right wrist and ankle sprains and fitted with Ace bandages. She was discharged with instructions to follow up with her primary care provider.
6. Claimant attempted to work the following three or four days, but was unable to do so successfully. According to her credible testimony, her supervisor changed her job duties to include lifting heavy items, something her injuries prevented her from doing. Claimant has not returned to work since May 2006.
Claimant’s Post-Injury Medical Treatment
7. One week after her injury, on May 10, 2006 Claimant followed up with her primary care provider, Kim Ladue, a family nurse practitioner. She continued to complain of pain in her right wrist, thumb and ankle. Initially Ms. Ladue prescribed a wrist splint and a walking boot. Claimant showed no improvement over the course of several subsequent office visits, whereupon Ms. Ladue referred her for both a course of physical therapy and an evaluation by a hand specialist.
8. In the years since her injury, Claimant has undergone a variety of treatments to address her persistent wrist, thumb and ankle pain. As Ms. Ladue had suggested, she consulted with a hand therapist at Dartmouth-Hitchcock Medical Center. She underwent courses of physical and occupational therapy, injections, nerve blocks and medications. None of these conservative therapies were successful. Her pain became chronic, and she could not move her thumb at all.
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9. Claimant has undergone two surgeries to address her right ankle symptoms, one in 2007 and the other in 2010. Though not completely resolved, her ankle pain became manageable after the second surgery and remains so today.
10. Unfortunately, the pain in Claimant’s thumb has proven far more difficult to manage. In October 2008 she underwent “trigger release” surgery, which her surgeon deemed successful, but she did not regain full range of motion subsequently and her thumb became increasingly painful. Over time, the focus of Claimant’s pain complaints came to involve primarily her right thumb.
11. Many treatment providers have tried to address Claimant’s chronic thumb pain. She now has been diagnosed with very focal chronic regional pain syndrome in the right thumb. Recently she underwent a successful spinal cord stimulator trial to address her chronic pain. As of the formal hearing, she was awaiting permanent implantation of the device.1
Claimant’s Pre-Injury Psychosocial History
12. Claimant grew up in the Randolph, Vermont area. She endured no physical or emotional abuse. There were no serious conflicts between her and either her parents or her older sister. She graduated high school at an accelerated rate at the age of sixteen.
13. After graduation Claimant married her current husband. Their relationship has been strong and supportive. Prior to her work injury, Claimant enjoyed four-wheeling and spontaneous trips with her husband. She also helped him in his contracting business by cutting the wood for his jobs. Together they have raised three children.
14. Claimant did not enter the work force until her youngest child was eight years old. First she worked for a food service company, then for a retail store and finally for Defendant. Claimant was productive at her previous two employments, but she clearly preferred the more social interactions that her positions with Defendant afforded her.
15. Prior to her work injury, Claimant enjoyed doing yard work and taking walks around the neighborhood. These activities gave her the opportunity to socialize with neighbors and get caught up with what was going on in their lives.
16. Claimant loves animals. Prior to her work injury, three or four times annually she would travel by herself to SeaWorld, to enjoy the dolphins and the manatees there. She became familiar with the animals’ names, as well as those of SeaWorld’s staff. Claimant credibly described these trips as very relaxing and fulfilling. In addition to these trips, during the summers she and her husband would travel by car to Jackson Hole, Wyoming to enjoy the bison, fox and other animals in the canyon. Claimant found these vacations very relaxing as well.
1 With this treatment still pending, as of the date of the formal hearing Defendant stipulated that Claimant had not yet reached an end medical result for her physical injuries.
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17. In general, prior to her work injury Claimant enjoyed good mental health, with stable family relationships, rewarding social interactions and satisfying recreational activities.
Claimant’s Post-Injury Psychiatric Condition and Treatment
18. Claimant has been experiencing chronic pain since her May 2006 injury. Nevertheless, until her first ankle surgery in March 2007 she was able to cope reasonably well with her condition. Her recovery from that surgery was protracted, however. With the pain and restricted movement in her right thumb, she could not ambulate with crutches. As a result, she was both wheelchair- and house-bound for months.
19. During this period, Claimant began feeling depressed and anxious. She had trouble sleeping and experienced recurrent nightmares, in which she saw herself in a casket. She cried frequently, often for no discernable reason. She had difficulty concentrating while reading a newspaper or watching television. She had no energy, felt hopeless and often thought of suicide. As her husband credibly described, when he looked into her eyes it was as if “she [was] not there.”
20. Most notably, Claimant shied away from social interactions, avoided leaving the house and took no joy in what were previously pleasurable pursuits. Once a very independent person, she no longer felt able to take her trips to SeaWorld, nor did she want to. She traveled there on one occasion with her husband, but credibly testified that it was not an enjoyable experience for her. She and her husband also returned one time to Jackson Hole after her injury, but she cried all the way there and described the trip as “miserable.”
21. From March 2007 on, Claimant’s psychological symptoms worsened. Her primary care provider prescribed antidepressants and an anti-anxiety medication, but these were ineffective. Finally, in May 2009 she was referred to Robert Vaillancourt, a licensed psychologist masters. He diagnosed Claimant with major depressive disorder.
22. Claimant has been in treatment with Mr. Vaillancourt continuously every one or two weeks since 2009. She has made some progress, but remains severely disabled by her depression. In April 2012 both Mr. Vaillancourt and her primary care provider referred her to the Treatment Resistive Depression Clinic at Dartmouth-Hitchcock Medical Center for a diagnostic interview. The providers there reaffirmed the diagnosis of major depressive disorder, which they characterized as severe. As treatment, they recommended that her medication regimen be reviewed for possible dosage increases and also that she continue therapy with Mr. Vaillancourt.
23. Since her May 2006 work injury Claimant has gained more than fifty pounds. Her current psychiatric prescriptions include Wellbutrin, Effexor and amitriptyline for depression, Klonopin for anxiety and Prazosin for persistent nightmares. Claimant credibly testified that she still struggles with thoughts of suicide.
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Expert Psychiatric Opinions
(a) Dr. Drukteinis
24. Dr. Drukteinis is a board certified psychiatrist and Diplomate in the American Academy of Pain Management. At her attorney’s request, he reviewed Claimant’s pertinent medical records in December 2011, and then conducted an in-person evaluation in January 2012.
25. Dr. Drukteinis diagnosed Claimant with (a) a pain disorder associated with both psychological factors and a general medical condition; and (b) major depressive disorder with features of agoraphobia. In his opinion, the latter condition is causally related to Claimant’s May 2006 work injury.2
26. According to the Diagnostic and Statistical Manual of Mental Disorders (4th ed., text rev., 2000), to establish a diagnosis of major depressive disorder a patient must be found to have a depressed mood or loss of interest or pleasure for more than a two-week period, plus five out of the following nine additional symptoms:
• Depressed mood for most of the day;
• Diminished interest or pleasure in all or most activities;
• Significant weight loss when not dieting, or weight gain;
• Insomnia;
• Psychomotor agitation or retardation;
• Fatigue or loss of energy;
• Feelings of worthlessness or excessive guilt;
• Inability to think or concentrate; and
• Recurrent thoughts of death or suicidal ideation.
2 Dr. Drukteinis did not state a specific opinion as to whether Claimant’s pain disorder was causally related to her work injury, though this seems self-evident.
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27. In Dr. Drukteinis’ opinion, over the course of the three years preceding his evaluation Claimant has exhibited all of these symptoms in varying degrees of intensity. For example:
• She has lost interest in pleasurable things, such as conversing with neighbors and customers at the supermarket or taking trips to SeaWorld;
• She has difficulty sleeping, and experiences recurrent nightmares;
• She has gained a significant amount of weight, lacks energy and cannot concentrate while reading a newspaper; and
• She expresses feelings of worthlessness and frequently has suicidal thoughts.
28. Dr. Drukteinis’ diagnosis comports with the diagnostic criteria for major depressive disorder, and is consistent with the diagnostic conclusions that both Mr. Vaillancourt and the Dartmouth-Hitchcock evaluators reached. For these reasons, I find his analysis very persuasive.
29. In Dr. Drukteinis’ opinion, though precipitated by her physical injury and chronic pain, Claimant’s major depressive disorder has now taken its own course. According to his analysis, Claimant spiraled down into her current depressive state over the course of several years. At this point, even if her chronic pain abates, and/or if she makes further psychological progress through counseling and medication, the diagnosis of major depressive disorder will remain. I find this analysis credible.
30. Dr. Drukteinis believes that the psychological treatment Claimant has been receiving is reasonable and appropriate. Claimant is severely depressed with passive suicide ideation at times. Ongoing psychological and psychiatric support is necessary for her support and maintenance. The medications she has been prescribed have been at least somewhat helpful in relieving her symptoms. A clinical psychiatric consultation might assist in determining whether a more aggressive medication program might be even more beneficial. I find this reasoning persuasive.
(b) Dr. Rater
31. Dr. Rater is a board certified psychiatrist. At Defendant’s request, he performed an independent medical examination of Claimant in September 2011. Dr. Rater reviewed the pertinent records at the time, as well as Dr. Drukteinis’ reports when they became available.
32. Dr. Rater concluded that Claimant does not suffer from a psychiatrically diagnosed condition causally related to her May 2006 work injury. Rather, in his opinion, her primary concern is one of chronic pain. According to his analysis, any lack of physical activity, insomnia, weight gain or inability to think or concentrate is attributable solely to the pain caused by her physical injuries. If the pain were to resolve, she would not be depressed.
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33. In support of his opinion, Dr. Rater pointed to various occasions described in Mr. Vaillancourt’s progress notes in which Claimant was reported to enjoy country music and exercise, that she had taken up crocheting and that she had traveled to both SeaWorld and Wyoming after her work injury. From these reports, Dr. Rater determined that Claimant was able to leave her home, interact socially with others and cope with stress. With that in mind, he concluded that Claimant was not suffering from major depressive disorder. I do not find this analysis convincing.
34. Regarding the reasonableness of Claimant’s treatment, in Dr. Rater’s opinion Claimant needs at most sixteen therapy sessions to learn how to manage chronic pain. Thus, her ongoing counseling sessions with Mr. Vailliancourt are not necessary. Additionally, because her psychiatric medications might cross-react with her pain medications, these are not appropriate either. I do not find Dr. Rater’s reasoning on this issue persuasive.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Claimant here presents a “physical-mental” claim – one in which a compensable physical injury provokes a psychological injury as well. If there is sufficient medical evidence to establish a causal connection between the former and the latter, then the psychological injury is deemed to have arisen out of the physical injury and therefore becomes compensable. Vach v. Twin City Subaru, Opinion No. 02-00WC (March 24, 2000); Blais v. Church of Jesus Christ of Latter Day Saints, Opinion No. 30-99WC (July 30, 1999); see generally, 3 Lex K. Larson, Larson’s Workers’ Compensation §56.03[3] (Matthew Bender, Rev. Ed.), and cases cited therein.
3. To establish the required connection, Claimant presented testimony from Dr. Drukteinis. Claimant alleges that as a result of her May 2006 work injury, and specifically following her March 2007 ankle surgery, her chronic pain became unmanageable. The combination of intractable pain and physical limitations caused her to develop the major depressive disorder from which she now suffers.
4. Defendant counters this argument through the testimony of its expert, Dr. Rater. It asserts that Claimant’s depression is not a separate diagnosis, but rather is merely secondary to her chronic pain. If her pain were to resolve, her depression would resolve as well.
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5. The key component of any workers’ compensation claim is the causal nexus between a work-related accident and a resulting injury. 21 V.S.A. §618. Most compensable claims originate with a physical stimulus, a slip and fall, for example, and result in a physical injury, such as a disc herniation or a ligament tear. The same causal nexus is required in a physical-mental claim. The only difference is that the work-related physical stimulus gives rise to a psychological injury rather than a physical one. See, e.g., Blais v. Church of Christ of Latter Day Saints, Opinion No. 30-99WC (July 30, 1999); see 3 Lex K. Larson, Larson’s Workers’ Compensation §56.03 (Matthew Bender, Rev. Ed.) and cases cited therein.
6. Where expert 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).
7. I conclude that Dr. Drukteinis’ opinion is better supported, and therefore more persuasive, than Dr. Rater’s. Dr. Drukteinis’ analysis took into account the way in which Claimant’s psychological symptoms have evolved over time. According to both Claimant’s own credible testimony and that of her treatment providers, they now encompass every one of the elements necessary to support a diagnosis of major depressive disorder. They signify far more than simply a reaction to chronic physical pain, and even if that pain resolves, they are unlikely to disappear without focused, ongoing psychological treatment.
8. In contrast, Dr. Rater’s analysis relied primarily on snippets of information gleaned from Mr. Vaillancourt’s notes, not the broader picture that Claimant herself credibly described. As I do not accept as credible his analysis, nor can I accept as credible his ultimate conclusion.
9. As to the reasonableness of Claimant’s ongoing psychological treatment, including both continued counseling and medications, I conclude that Dr. Drukteinis’ opinion is more persuasive. Given the period of time during which her psychological symptoms have persisted, I concur that further treatment is necessary to support her emotionally.
10. I conclude that Claimant has sustained her burden of proving that her current psychological condition, specifically major depressive disorder, is causally related to her May 2006 work injury, and is therefore compensable. I further conclude that the treatment she is receiving is reasonable. She therefore is entitled to workers’ compensation coverage for whatever further treatment is determined to be reasonable, necessary and causally related to that condition.
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Costs and Attorney Fees
11. As Claimant has prevailed on her claim for benefits, she is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit her itemized claim.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Medical benefits covering all reasonable medical services and supplies necessitated by Claimant’s compensable major depressive disorder, in accordance with 21 V.S.A. §640; and
2. Costs and attorney fees in amounts to be determined, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 29th day of March 2013.
___________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

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