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Arnold Griggs v. New Generation Communication (November 15, 2010)

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Arnold Griggs v. New Generation Communication (November 15, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Arnold Griggs Opinion No. 30R-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
New Generation Communication
For: Valerie Rickert
Acting Commissioner
State File No. P-15250
RULING ON CLAIMANT’S MOTION FOR RECONSIDERATION
Claimant moves for reconsideration of various aspects of the Commissioner’s October 1, 2010 Opinion and Order in the above claim. Specifically, Claimant asserts that the Commissioner violated his due process rights by recalculating his compensation rate when neither party had raised this as an issue for hearing. Claimant also asserts that the Commissioner erred in not awarding penalties and interest.
Determination of Claimant’s Compensation Rate
As to the first issue, 21 V.S.A. §606 mandates that “[q]uestions arising under the provisions of this chapter, if not settled by agreement of the parties interested therein with the approval of the commissioner, shall be determined . . . by the commissioner.” Calculating a claimant’s average weekly wage and compensation rate is a necessary component of determining the benefits to which he or she is entitled. The commissioner has not just the right but the obligation to determine whether the calculations are correct.
It is true that in calculating Claimant’s compensation rate in the current claim, the Commissioner interpreted the statute in a manner that differed from the way her designees may have applied it in the past. It is understandable that neither party would have anticipated that she would do so, and therefore neither would have seen fit to introduce evidence on the issue.
I conclude that it is appropriate under the particular circumstances of this claim to remand the matter to the hearing officer so that the parties can submit further evidence relevant to the determination of the appropriate compensation rate at which the benefits Claimant has been awarded should be paid. Claimant’s Motion for Reconsideration is GRANTED to the extent necessary to accomplish this result.
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Determination as to Penalties and Interest
Claimant’s request that the Commissioner reconsider her decision not to award penalties or interest embodies essentially the same arguments presented in his proposed findings of fact and conclusions of law.
I remain convinced that Claimant himself contributed to Defendant’s delayed payment of the benefits due him in at least two respects. First, he failed to provide documentation establishing that the expenses of recovery relative to his first third-party settlement were “reasonable” under 21 V.S.A. §624(f). Second, he failed to provide documentation establishing when Defendant’s workers’ compensation “holiday” was finally exhausted. Without that documentation, Defendant could not calculate either the precise amount it owed or the date when it began owing it. Both are required to justify an award of penalties and interest.
ORDER:
Claimant’s Motion for Reconsideration is GRANTED to the extent necessary to present evidence as to the compensation rate at which the benefits awarded him should be paid. The claim is remanded to the hearing officer for that purpose. Claimant’s Motion is in all other respects DENIED.
DATED at Montpelier, Vermont this 15th day of November 2010.
____________________
Valerie Rickert
Acting Commissioner

T. A. v. Ann Johnston and Charlotte Rancourt dba Karma Farm (April 4, 2007)

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T. A. v. Ann Johnston and Charlotte Rancourt dba Karma Farm (April 4, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
T. A. Opinion No. 05R-07WC
v. Phyllis Severance Phillips, Esq.
Hearing Officer
Ann Johnston and Charlotte
Rancourt, dba Karma Farm Patricia Moulton Powden
Commissioner
State File No. W-01682
RULING ON DEFENDANTS’ MOTION FOR RECONSIDERATION
Defendants move for reconsideration of the Commissioner’s Order denying their Motion for Summary Judgment. Defendants argue that the Commissioner failed to consider certain aspects of the decision rendered by the Washington Superior Court in prior litigation between the parties. Defendants contend that once considered, these aspects compel the conclusion that Claimant is collaterally estopped from pursuing her workers’ compensation claim.
The gist of Defendants’ request for reconsideration is that the Washington Superior Court rejected any possible scenario whereby Claimant could be considered Defendants’ employee on any of the dates of injury she alleged when it dismissed her counterclaims for damages and lost wages. This is not necessarily true. The Court made no specific findings as to Claimant’s employment status with Defendants after October 2004. It could have dismissed Claimant’s counterclaims for any number of reasons, either legal or factual. Without more information as to the exact grounds upon which the Superior Court based its dismissal, there simply is no way to know whether genuine issues of material fact still exist and if so, whether Claimant is collaterally estopped from pursuing them in this forum. Under these circumstances, summary judgment against Claimant is not appropriate.
Defendant also argues that the Commissioner was wrong to consider any hypothetical employment scenarios that conflict with the arguments Claimant has propounded in support of her claim in her various filings with the Department. This argument also lacks merit. In reaching a decision, the Commissioner’s job is to interpret the law and apply it to the facts. She certainly is not bound by either party’s view as to how best to do so. Kruse v. Town of Westford, 145 Vt. 368, 374 (1985).
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Defendant has not presented any new facts to justify the entry of summary judgment against Claimant. Its Motion for Reconsideration, therefore, is DENIED.
Dated at Montpelier, Vermont this 4th day of April 2007.
____________________________
Patricia Moulton Powden
Commissioner

S. C. v. Barre Supervisory Union School (July 9, 2007)

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S. C. v. Barre Supervisory Union School (July 9, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
S. C. Opinion No. 18-07WC
v. By: Rebecca L. Smith
Staff Attorney
Barre Supervisory Union School For: Patricia Moulton Powden
Commissioner
State File No. T-11595
RULING ON DEFENDANT’S MOTION FOR RECONSIDERATION AND/OR STAY OF FINAL DECISION AND CLAIMANT’S MOTION TO RECONSIDER REGARDING ATTORNEY’S FEES, COSTS, INTEREST AND IMPAIRMENT RATING
The Defendant moves that the Department reconsider and modify, or in the alternative stay pending appeal, the final decision, Opinion No. 53-06WC, issued on January 2, 2007 after formal hearing in this workers’ compensation matter. Specifically, the Defendant disputes the Department’s finding of permanent partial impairment in Conclusion of Law 8, which states that Dr. Farrell’s is the only permanency opinion on record. The Defendant asserts that Dr. Hebben’s assessment of no permanent impairment is the correct one.
The Claimant requests several actions in her motion: 1) award of attorney’s fees and costs on the basis that the Claimant partially prevailed at hearing, 2) clarification of the specific percentage of impairment awarded, 3) an award of interest on all outstanding benefits ordered, and 4) an order directing payment of the permanent partial disability benefits in a lump sum pursuant to §652.
The initial opinion denied permanent total disability and awarded permanent partial impairment as assessed by Dr. Farrell, who provided a rating in the form of a range of 26-32%. It did not address attorney’s fees and costs or interest.
Permanent Partial Impairment
The Defendant argues that the Department erred in awarding permanent partial disability because that conclusion was not based on the facts found. Specifically, the Defendant disputes the statement in Conclusion of Law 8 that Dr. Farrell’s was the only permanency rating advanced, noting that Dr. Hebben assessed no impairment associated with the work injury.
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Dr. Hebben’s opinion is founded on her conclusion that the Claimant suffered no psychiatric or cognitive injury as a result of the January 2003 accident. However, Dr. Hebben did find a somatoform disorder, which had not previously been diagnosed. Dr. Hebben describes that the mild head injury provided the Claimant with “a shelf to place [her preexisting psychological conditions] on.” Further, Dr. Hebben questioned the diagnosis of concussion and post concussion syndrome, while it is well established by both the Claimant’s treatment providers and by independent examiners hired by the Defendant that the Claimant experienced mild grade 1 concussion, followed by post concussion syndrome with persistent effects. Both Dr. Preis and the Claimant testified that a series of pre-injury conditions, essentially controlled and not significantly interfering with the Claimant’s teaching career, markedly worsened subsequent to the injury. Dr. Preis describes the post-injury symptoms as becoming chronic rather than episodic.
Therefore, upon review and reconsideration, the original finding that the lingering effects of the work injury combined with the pre-existing conditions to produce disability are the most probable hypothesis. This conclusion is additionally supported by Dr. Peyser, who opined that “the incident may have spawned a psychological reaction which may be impacting the results of some of her testing,” and recommended that the Claimant work with a vocational rehabilitation psychologist to “map out compensatory and recovery strategies along with pain management skills.”
Percentage of Impairment
In June 2005, Dr. Farrell found a psychological impairment directly attributable to the work injury of 26-32 % based on the Colorado Department of Labor and Employment guidelines. The AMA Guides to the Evaluation of Permanent Impairment assess impairment due to mental and behavioral disorders, but do not assign numerical impairment ratings as they do for other injuries. The Department has recognized the Colorado system for the purpose of assigning an impairment percentage to mental disorders. See, e.g. Bodell v. Webster Corporation, Opinion No. 62-96WC (October 22, 1996), Sargent v. Town of Randolph Fire Department, Opinion No. 37-02WC (August 22, 2002). Close comparison of Dr. Farrell’s findings with Table 13-8 of the Guides (Criteria for Rating Impairment due to Emotional or Behavioral Disorders) and the corresponding examples indicates correlation with high end Class 2 (moderate limitation of some activities of daily living, 15-29%) to low end Class 3 (severe limitation in performing most activities of daily living, 30-69%) impairment. Consequently, I find the Claimant’s whole person impairment rating to be 30%.
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Attorney’s Fees and Costs
By oversight, the initial opinion neglected to address attorney’s fees and costs. The Claimant has submitted an accounting of $19,719.00 in fees and $6,826.34 in costs.
The Claimant sought to establish work-related permanent total disability, or, in the alternative, work-related permanent partial disability; the Defendant disputed any permanent disability attributed to the work injury. Awarding of attorney’s fees is discretionary pursuant to 21 V.S.A. §678. The Claimant has prevailed in part, and is thereby entitled to of a portion of the fees and costs sought. An award in the amount of 50% of the fees sought, or $9,859.50, is appropriate to the degree of the Claimant’s success, in consideration of the extent to which the necessary preparations for the alternative positions overlapped.
Necessary costs are mandatory when a claimant prevails. Having prevailed in part, the Claimant is entitled to an award of costs, however the costs sought in this matter far exceed the norm for claims of this type. Payments to one individual alone, Dr. Paul R. Solomon, exceed four thousand dollars. Dr. Solomon’s role in preparing the case is not clear, and without further elaboration cannot be deemed necessary. Accordingly, $2,776.34 in costs is awarded.
Interest
Pursuant to 21 V.S.A. §664, an award shall include the date on which the Defendant’s obligation to pay compensation began, and shall include interest at the statutory rate computed from that date. Defendant’s obligation to pay temporary partial disability compensation began at the termination of the period of temporary total disability, which the parties have stipulated occurred on April 26, 2005. Interest on the benefits due shall be paid from that date.
Lump Sum
The Claimant requests an order requiring that the permanent partial disability benefits be paid in a lump sum in accordance with 21 V.S.A. §652 in order to protect her Social Security benefits from offset. Section 652 was amended in May 2006 to require that, in the absence of a claimant’s request to the contrary, any order for a lump sum payment of permanent partial disability benefits shall include a provision accounting for excludable expenses and prorating the remainder of the lump sum payment in the manner set forth by the Social Security Administration in order to protect the claimant’s entitlement to Social Security Benefits. The Department relies upon party counsel to provide such an accounting for review and approval, and cannot approve lump sum payment in its absence.
Stay
To prevail on its request for stay of the award of permanent partial disability benefits, the Defendant must demonstrate 1) that it is likely to succeed on the merits of the appeal; 2) that it would suffer irreparable harm if the stay were not granted,; 3) that a stay would not substantially harm the other party; and 4) that the best interests of the public would be served by the issuance of the stay. In re Insurance Services Offices, Inc. 148 Vt. 634, 635 (1987).
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The Defendant argues that it will likely prevail on appeal because the Department’s conclusions were not based upon the facts as presented at hearing. Specifically, the Defendant notes that Conclusion of Law 8 conflicts with the facts found in Finding 38. The Defendant’s arguments regarding the other three stay factors are similarly based. Those concerns are addressed above in the discussion regarding the reconsideration of the award of permanent partial disability benefits. The defendant has failed to sufficiently demonstrate that another forum, after interpreting all submitted evidence, would reach a different conclusion. See, e.g. Carter v. Portland Glass, Opinion No.8RS-98WC (April 3, 1998 and Feb. 6, 1998). Without this essential prong of the four-part test under In re Insurance Services Offices, Inc., the Defendant’s arguments regarding the other three prongs are diminished, and lead to the conclusions that the required factors are not demonstrated. Accordingly, the motion for a stay must be denied.
ORDER:
Therefore, based upon the forgoing:
1. The award of permanent partial disability is upheld after reconsideration;
2. PPD shall be at the rate of 30% whole person disability;
3. Interest is awarded as though the PPD payments had commenced on April 26, 2005;
4. Claimant is awarded attorney’s fees and costs in the amount of $10,625.00;
5. Claimant’s request for a lump sum payment of benefits is denied.
Dated at Montpelier, Vermont this 9th day of July 2007.
______________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

Estate of Stephen Paul Carr v. Verizon New England, Inc. (July 11, 2011)

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Estate of Stephen Paul Carr v. Verizon New England, Inc. (July 11, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Estate of Stephen Paul Carr, by Opinion No. 08R-11WC
and through the Widow and
Administratrix, Bonnie Carr By: Phyllis Phillips, Esq.
Hearing Officer
v.
For: Anne M. Noonan
Verizon New England, Inc. Commissioner
State File No. Y-53261
RULING ON CLAIMANT’S MOTION FOR RECONSIDERATION
Claimant moves for reconsideration of the Commissioner’s ruling granting summary judgment in Defendant’s favor and denying summary judgment in Claimant’s favor.
Claimant alleges that a factual issue exists as to whether he was or was not engaged in a business-related task at the time of his injury on Thursday morning, June 29, 2006. As support for this allegation, he points to the sworn testimony of Bonnie Carr, his wife. Mrs. Carr testified that Claimant telephoned her on Wednesday evening and advised that he “had to go into work for a little while in the morning” to photocopy and/or fax some documents. Claimant asserts that in ruling on Defendant’s summary judgment motion, this testimony must be accepted as true, that it establishes a business purpose for his presence in the area on Thursday morning and that therefore Defendant’s motion must fail.
I accept as true Mrs. Carr’s assertion that Claimant advised her during a telephone conversation on Wednesday evening that he would be working Thursday morning. I do not accept as true that this is in fact what Claimant did.
As stated in my prior ruling, the undisputed evidence establishes that Claimant was neither going to nor coming from the Hinesburg Road facility at the time of his injury. Estate of Carr v. Verizon New England, Inc., Opinion No. 08-11WC (April 29, 2011) at Discussion ¶10. Even accepting Mrs. Carr’s testimony as to Claimant’s intent to “go into work for a little while,” furthermore, there is nothing at all to link him to the Lincoln Street Central Office, and it would be pure speculation to place him there as opposed to any number of other photocopy or fax locations.
I conclude that Mrs. Carr’s testimony fails to establish a genuine issue of material fact sufficient to overcome summary judgment in Defendant’s favor.
As to his own summary judgment motion, Claimant asserts that regardless of whatever personal deviation he may have embarked upon previously, at the time of his injury he was traveling along a reasonable route home from his work assignment. As a matter of law, therefore, he claims that his injury must be deemed to have occurred in the course of his employment.
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Claimant has submitted new evidence in support of his motion for reconsideration, namely, mileage records showing a total of 45 additional miles on Claimant’s motorcycle from the time he dropped it off for servicing on Wednesday morning to the time of his accident on Thursday morning. Subtracting from this total the 5-mile distance from the repair shop to the accident scene, Claimant asserts from this evidence that the geographical extent of his personal deviation could not have exceeded 20 miles in any direction.
As this evidence was submitted late, I am not compelled to consider it. Wentworth v. Fletcher Allen Health Care, 171 Vt. 614, 616-17 (2000). Even were I to do so, it still does not merit reconsideration of my previous ruling denying summary judgment in Claimant’s favor. The fact remains, without knowing where Claimant’s deviation took him from Wednesday evening until Thursday morning, there is no way to know how extensive it was or when it was concluded.
Had Claimant stayed the night in Burlington, for example, his direct route home likely would have been to access Interstate 89 South at the Williston Road interchange. For him instead to travel via Route 117 – to enjoy an early morning pleasure ride on his motorcycle, say – would amount to a considerable deviation. And what if rather than accessing the Interstate at the Richmond interchange Claimant intended instead to continue his deviation north – say, to have breakfast in Williston – prior to proceeding south towards home? In that event, despite his proximity to a reasonable route home his deviation still would not have been concluded.
The point is, beyond mere speculation there is no way to know where Claimant was coming from, where he was going or what his intentions were. Not until he actually regained his route home would it be safe to say that his deviation had ended.
I conclude that summary judgment in Claimant’s favor was appropriately denied.
Claimant’s Motion for Reconsideration is hereby DENIED.
DATED at Montpelier, Vermont this 11th day of July 2011.
_________________________
Anne M. Noonan
Commissioner

Robert Gadwah v. Ethan Allen (November 28, 2011)

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Robert Gadwah v. Ethan Allen (November 28, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Robert Gadwah Opinion No. 33R-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Ethan Allen For: Anne M. Noonan
Commissioner
State File No. P-09814
RULING ON DEFENDANT’S MOTION FOR RECONSIDERATION
Defendant seeks reconsideration of the Commissioner’s October 20, 2011 Opinion and Order. It asserts that the evidence adduced at hearing was insufficient to support the Commissioner’s ruling. I disagree.
Having weighed and considered the evidence produced by both parties, I am convinced that that aspect of Claimant’s 2009 surgery in which his L4-5 fusion was revised and corrected would not have been performed but for his 1999 injury. In reaching this conclusion, I accept as credible the testimony of both Claimant and his wife as to the ongoing nature of his symptoms from 1999 forward. I also accept Dr. Forrest’s expert medical opinion, which established the necessary causal relationship between that aspect of the surgery and the 1999 injury to the required degree of medical certainty, as more credible than Dr. Levy’s opinion.
I also am convinced that Claimant’s work at Weir Tree Farms did not contribute in any way to the need for surgical revision of the failed fusion at L4-5. In reaching this conclusion, I again accept Dr. Forrest’s expert medical opinion as more credible than Dr. Levy’s.
Last, contrary to Defendant’s assertion, my ruling did not go so far as to apportion the costs of the 2009 surgery between those attributable to the L4-5 revision and those attributable to the L2-3 disc herniation. The narrow issue decided was simply whether Claimant’s compensable 1999 injury caused the need for surgical revision of his failed L4-5 fusion. As discussed above, I am convinced by the credible evidence that it did.
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A motion to reconsider should not be granted solely to relitigate an issue already decided. Shrader v. CSX Transportation, Inc., 70 F.3d 255, 257 (2d Cir. 1995). “The standard for granting such a motion is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked – matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” Id.
Defendant fails to meet this standard here. Its motion consists of a lengthy recitation of the same evidence it emphasized in its proposed findings of fact, spun in exactly the same way to arrive at the same legal conclusions it previously argued. Under these circumstances, for Defendant to assert that judicial economy would be served by granting it the opportunity to relitigate a case that it fairly tried, and fairly lost, is misguided and self-serving.
Defendant’s Motion for Reconsideration is DENIED.
DATED at Montpelier, Vermont this 28th day of November 2011.
______________________
Anne M. Noonan
Commissioner

J. C. v. Richburg Builders (October 9, 2006)

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J. C. v. Richburg Builders (October 9, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
J. C. Opinion No. 37R-06WC
By: Margaret A. Mangan
v. Hearing Officer
Richburg Builders/Acadia For: Patricia Moulton Powden
Commissioner
State File No. K-06947
RULING ON CLAIMANT’S MOTION FOR RECONSIDERATION, OR IN THE ALTERNATIVE, FOR ABEYANCE AND REOPENING
Introduction
Claimant moves for reconsideration, or in the alternative, for abeyance and reopening of the Department’s August 15, 2006 decision regarding the determination that the Claimant’s September 23, 2005 fusion surgery was not reasonable medical treatment. Claimant asserts that the Department must reconsider or delay its decision because the Claimant has maintained an improved condition since the September 23, 2003 fusion surgery. Claimant argues that, in light of precedent and relevant expert testimony, this sustained improvement weighs heavily when assessing the reasonableness of the contested surgery. As such, Claimant contends that the Department should reconsider its decision or reopen the Claimant’s medical records for expert medical reevaluation.
Background
When considering the conflicting expert opinions, the Department applied the following four-factor test found in Miller v. Cornwall Orchards in its August 15, 2006 decision: 1) length of time the physician has provided care to the claimant; 2) the physician’s qualifications, including the degree of professional training and experience; 3) the objective support for the opinion; and 4) the comprehensiveness of the respective examinations, including whether the expert had all relevant records. Opinion No. WC 20- 97 (1997).
Focusing on the third and fourth criteria, the Department reasoned that the factors more heavily favored the Defendant. The Department found the Claimant’s treating physician’s recommendation for surgery was unpersuasive for two main reasons. First, prior test results failed to indicate the surgery was reasonable. Second, the treating physician failed to thoroughly review all of the Claimant’s medical records before recommending surgery. Additionally, after further testing and careful review of all medical records, the Defendant’s experts found that cervical fusion surgery was not reasonable medical treatment pursuant to 21 V.S.A. § 601. As a result, the Department held Claimant’s cervical fusion surgery to be not reasonable under the Act.
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Analysis
Claimant now argues that his sustained, post-surgical improvement tips the balance in favor of finding that the cervical fusion surgery was a reasonable medical treatment. (Claimant’s Motion at 4.) While Claimant is correct that a positive post-operative result is one factor to be considered, it does not “dictate a result.” R.W. v. Holstein Associates of USA. Opinion No. 02-05WC (2005). It is simply one factor to be considered and in this case an unreliable one because it is largely based on subjective reports.
Although it is true that “[a] treatment does not become unreasonable simply because it will not resolve all the claimant’s complaints, it cannot be accepted as reasonable when it lacks an objective basis or foundation.” Clement v. National Hanger Corp., Opinion No. 15-02WC (2002). Even if I accepted Claimant’s report that the surgical result has been promising, this one factor does not overcome the Miller analysis, which leads to the conclusion that the surgery is not compensable.
Conclusion
Therefore, Claimant’s Motion for Reconsideration or, in the Alternative, for Abeyance and Reopening is DENIED.
Dated at Montpelier, Vermont this 9th day of October 2006.
____________________________
Patricia Moulton Powden
Commissioner
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J. C. v. Richburg Builders (August 15, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
Opinion No. 37-06WC
J. C.
By: Margaret A. Mangan
v. Hearing Officer
Richburg Builders For: Patricia Moulton Powden
Commissioner
State File No: K-06947
Hearing held on January 24, 2006 in Montpelier, Vermont
Deposition of Dr. Phillips taken on January 30, 2006
Record closed on June 20, 2006
COUNSEL:
Christopher J. McVeigh, Esq., for the Claimant
Eric A. Johnson, Esq., for the Defendant
ISSUES:
1. Whether Acadia waived its right to discontinue payment.
2. Whether Claimant’s cervical fusion surgery is reasonable medical treatment.
3. Whether Claimant is entitled to additional Permanent Partial Impairment Benefits as a result of his cervical fusion surgery.
4. Whether Claimant is entitled to attorney fees and costs.
EXHIBITS:
1. Joint Medical Exhibit. Volumes I, II, and III.
2. Deposition of Joseph M. Phillips, M.D.
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STATEMENT OF FACTS:
1. Claimant began working for Richburg Builders on or about July 1994. At all times relevant to this action, Defendant Richburg Builders was Claimant’s “employer” and Clamant John Chittenden was Defendant’s “employee” within the meaning of the Vermont Workers’ Compensation Act, 21 V.S.A. § 601.
2. Acadia was the workers’ compensation carrier on the risk in the calendar year 1996.
3. On or about August 5, 1996, Claimant reported to his supervisor that he hurt his back while carrying shingle bundles up a ladder to the roof of a two-story pitched colonial house. Claimant felt a pull in his lower back and leaned forward with shingle bundle resting against his neck. Claimant was forty-seven years old at time of injury.
4. The Department received the Employer’s First Report of Injury (Form 1) on October 4, 1996. The injury noted on the Form 1 was for Claimant’s back.
5. Claimant later corrected the date of injury from June 5, 1996 to August 5, 1996.
6. The parties entered into an Agreement for Temporary Total Disability Compensation (Form 21) for coverage beginning October 21, 1996. Acadia did not investigate prior medical records or challenge the work-related causation of the neck pain that was being treated in addition to the lower back pain.
7. After suffering the work-related injury, Claimant continued working for Richburg Builders until he stopped on October 22, 1996. He never returned to work for Richburg Builders. Claimant did not return to work in 1997, 1998, 1999, and 2000.
8. Claimant had an MRI of his lumbar spine taken on January 8, 1997. The radiologist concluded that Claimant’s MRI showed evidence of a herniated disc at the L5-S1 level. On or about January 10,1997, Claimant was referred to neurosurgeon Dr. Phillips by Dr. John A. Savoy who wanted a second opinion on findings of Bilateral S1 radiculopathies.
9. Claimant had an MRI of his cervical spine taken on March 11, 1997. The radiologist concluded that there was no evidence of a herniated disc or spinal stenosis. He did find mild to moderate vertebral joint spurring at the level of C5-6.
10. On April 2,1997, after reviewing Claimant’s MRI of his lumbar spine, Dr. Phillips began treating Claimant for a work-related injury resulting in lower back and neck pain. Dr. Phillips diagnosed Claimant with stenosis of the L5-S1 level and thickening of the yellow ligament at L4-5. Dr. Phillips recommended a
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laminectomy, L4through L5, with foraminotomies to decompress all roots responsible for Claimant’s array of symptoms.
11. First Surgery: On May 6, 1997, Dr. Phillips performed the first lumbar spine surgery (L4-S1 foraminotamies) on Claimant for low back symptoms. Postoperatively, Claimant’s pain relief lasted about three months.
12. Second Surgery: On January 22, 1998, Dr. Phillips performed the first of four cervical surgeries: a C2 decompression. Claimant did not obtain much pain relief. Acadia did not investigate prior medical records or challenge the work-related causation of neck pain. Acadia paid medical, surgical and temporary total disability benefits associated with that surgery.
13. On May 14, 1998, Dr. Susan Hetman of Immediate Health Care, performed a Permanent Partial Impairment Evaluation of Claimant that rated him with a 10% whole person permanent impairment for his lumbar spine injury.
14. Dr. Mark Bucksbaum performed an examination of the Claimant on August 4, 2000, that resulted in a rating of 15% whole person impairment for his cervical spine injury.
15. Acadia filed an Agreement for Permanent Partial Disability Compensation (Form 22) starting on July 11, 2000. Acadia accepted the whole person impairment ratings for the lower back and cervical injury for a total rating of 25%.
16. Third Surgery: On June 2, 1998, Dr. Phillips performed a second cervical surgery that involved bilateral ganglionectomies at the C2 level. Claimant obtained better results but the pain relief was short-lived. Acadia paid medical, surgical and temporary total disability benefits associated with that surgery.
17. Fourth Surgery: On November 12, 1998, Claimant’s third cervical surgery involved foraminotmies at the C4-5, 5-6, and 6-7 levels and was performed by Dr. Phillips. Claimant noted no improvement in neck pain and arm symptoms. Acadia did not investigate prior medical records or challenge the work-related causation of neck pain. Acadia paid temporary total disability benefits.
18. After the third cervical surgery provided no pain relief to Claimant, during a follow-up examination on June 16, 1999, Dr. Phillips noted that he was “certainly of the mind not to advocate surgical considerations at all.”
19. On October 18, 1999, Claimant hurt his back while lifting a trash can at home. He went to Dr. Phillips who, after reviewing an MRI showing a more “lateralized disc herniation” at L4-L5, recommended a second lumbar surgery.
20. Fifth Surgery: On January 20, 2000, Claimant underwent a fifth surgery, a second lumbar surgery performed by Dr. Phillips. This fifth surgery involved a microdiscectomy and repeat laminectomy at the L4-5 level. Acadia paid
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medical, surgical and temporary total disability benefits associated with that surgery.
21. Claimant returned to work in July 2000. Claimant was self-employed performing light carpentry, household repairs, lawn mowing and other small-scale household jobs, despite continuing back pain and headaches.
22. In December 2002, Claimant returned to Dr. Bucksbaum for pain treatment. Dr. Bucksbaum changed Claimant’s medication and recommended Claimant return to Dr. Phillips for further evaluation.
23. Dr. Bucksbaum ordered an MRI of Claimant’s cervical spine that was taken on April 4, 2003. The MRI revealed degenerative disc changes at the C5-6 and C6-7 levels, but the cord and canal were normal with no indication of cord compression or abnormal intramedullary signal.
24. Dr. Phillips recommended cervical fusion surgery for pain reduction after conducting a physical exam of Claimant on May 6, 2003 during which he noted that Claimant had “diminished absent biceps” reflexes on the right. Dr. Phillips recommended an anterior discectomy fusion to relieve symptoms relating to reactive muscle spasm associated with microscopic stability at that level.
25. July 31, 2003, Acadia sent Claimant to Dr. Gennaro for an Independent Medical Examination (IME) and for second opinion on the recommended cervical fusion surgery. Dr. Gennaro examined all prior medical records and noted most recent examination by Dr. Phillips was missing. On the information provided, Dr. Gennaro opined that he did not have adequate information to make the “conclusion whether or not surgery would be beneficial to this gentleman. I am not convinced that cervical radiculopathy is fully established and would recommend that he undergo an EMG nerve conduction study.”
26. On August 8, 2003, Dr. Gennaro received the missing pages from Dr. Phillips’s report and again Dr. Gennaro reached the same conclusion. Contrary to Dr. Phillips’s report, Dr. Gennaro found no indication of an absent biceps reflex (even though there are indications of weakness), disc herniation, thecal sac or nerve root encroachment that would suggest surgery would provide relief. Dr. Gennaro concluded that there is “insufficient evidence to support that additional surgical procedure such as the recommended anterior inner body fusion discectomy at C5-6 with a fusion is likely to mitigate his symptoms.” Furthermore, Dr. Gennaro noted, “multiple previous surgical interventions to this Claimant’s neck create well-understood conditions that repeat surgery has a much higher risk of complications.”
27. Dr. Ball reviewed Claimant’s medical history and conducted a physical examination on December 12, 2004. Dr. Ball concluded that Claimant’s x-rays show no significant central canal stenosis, no evidence of instability, and no radicular or myelopathic symptoms. Thus, Dr. Ball opined that “the likelihood of surgery helping here is not high.”
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28. Claims adjuster Susan Ward for Acadia filed, and the Department received on December 4, 2003, a Denial Of Workers’ Compensation Benefits (Form 2) to deny the cervical fusion surgery recommended by Dr. Phillips. The denial was based on Dr. Gennaro’s finding that fusion surgery would not provide pain relief for the Claimant. This denial was not based upon causation.
29. Claimant’s other treating physician, Dr. Bucksbaum, ordered Claimant to undergo MRI’s, on April 4, 2003 and on March 25, 2004. The comparison report by the radiologist showed no cord compression or abnormal intramedullary signal. The radiologist concluded, “stable appearance of disc/osteophytes in the lower cervical spine. No evidence of new disc herniation. No visible impingement of the spinal cord.”
30. Dr. Drukteinis, Board certified in Psychiatry and Neurology with added qualifications in Forensic Psychiatry, conducted a psychiatric evaluation of Claimant on March 22, 2004 at the behest of Susan Ward, claims adjuster from Acadia. After evaluating Claimant’s entire medical history, a one-and–a-half hour interview, and administration of ten psychological tests, Dr. Drukteinis concluded, “the patient is likely to be preoccupied with bodily functions and health, tending at times to overreact to real illness and to express excessive complaints about relatively minor ailments. Not untypically, he will exhibit symptoms somewhat dramatically, gaining attention and support of others in the process. These displays suggest that the patient gains some special rewards in being ill and in distress.”
31. On April 28, 2004, Acadia resumed payment of temporary total disability benefits, although it did not file a new Form 21.
32. Claimant saw Dr. Phillips complaining about frequent urination. Dr. Phillips suggested that it was related to cervical condition. He diagnosed radiculopathy and recommended cervical fusion surgery.
33. The report from Dr. Phillips’s physical examination of Claimant on February 23, 2005, states that in general Claimant’s biceps reflexes are good with the exception of “some diminished biceps on the right compared with the left.” Dr. Phillips recommends nerve conduction velocity studies to determine whether to rule out carpal tunnel syndrome as a possible source of Claimants various array of symptoms; he refers Claimant to Dr. Ayers. Dr. Phillips again recommends a cervical fusion for pain.
34. Dr. Ayers performed an ENMG nerve conduction study. In his March 7, 2005 evaluation he concluded that there was no evidence for peripheral compression neuropathy, plexopathy or radiculopathy.
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35. Dr. Gennaro conducted a second IME on April 22, 2005, almost two years after Claimant’s first IME with Dr. Gennaro. Dr. Gennaro noted that Claimant’s physical condition and diagnostic studies were unchanged but his symptomatic complaints had intensified. Dr. Gennaro reiterated his earlier opinion that cervical fusion surgery would be unlikely to help Claimant’s symptoms because Claimant has diffuse cervical degenerative disk disease, has had multiple surgeries on his cervical spine, changes in his cervical musculature, and EMG nerve conduction studies on multiple occasions have not demonstrated peripheral nerve compression neuropathy, cervical radiculopathy, or upper extremity polyneuropathy. Dr. Gennaro opined that Claimant was at a medical end result with the exception of on-going palliative care for his chronic pain condition. Because Claimant had reached maximum medical improvement with sustained a residual partial permanent impairment for both his cervical and lumbar spines, he rated Claimant at an 8% permanent impairment according to the AMA Guides Fifth Edition—DRE Cervical Category II and an 8% permanent impairment –DRE Lumbar Category II, for a combined whole person impairment of 15%.
36. Dr. Phillips asserts that Claimant’s complaint of urinary frequency probably does not come from his lumbar spine but is “more likely from the cervical area” on May 10, 2005. However, Dr. Phillips does not provide any explanation for this assertion but that Claimant may have a small bladder. Dr. Phillips does note that he will proceed with the fusion surgery to alleviate Claimant’s neck pain.
37. Effective May 29, 2005, Acadia Claims adjuster Susan Ward filed an Employer’s Notice of Intention to Discontinue Payments (Form 27) based upon Dr. Gennaro’s finding that Claimant had reached a medical end result. Additionally, the Form 27 stated that there was “no additional Permanent Partial Disability due.” The Commissioner approved the Form 27 on May 26, 2005.
38. On July 7, 2005, in a supplemental letter to his review of Claimant’s medical records to Attorney Johnson, Dr. Gennaro cites the results of the EMG study and MRIs to refute Dr. Phillips reasoning. Dr. Gennaro also opines that Claimant’s symptoms result from Claimant’s depressive disorder, somatization, and symptom magnification.
39. Sixth Surgery: On September 23, 2005, Dr. Phillips performed a fourth cervical surgery on Claimant. On the pre-operative statement, Dr. Phillips described condition as cord compression and radiculopathy despite results of MRIs, EMG, x-rays and medical expert opinions to the contrary. Although Claimant still has headaches, Claimant claims more range of movements in his neck, less pain, and lower intake of oxycodone after the cervical fusion surgery.
40. On November 18, 2005, Dr, Bucksbaum performed another examination of Claimant and increased the previous whole person impairment rating to 21% due to the additional surgery performed on January 20, 2000.
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41. Dr. Gennaro opined that Claimant’s cervical fusion surgery could not be determined successful until a full year passed without a decrease in the initial post-operative relief that Claimant experienced.
CONCLUSIONS OF LAW:
1. Claimant argues that Acadia did not meet its burden of proof to discontinue payments; the Department erred when it approved Acadia’s Form 27, because Acadia waived its opportunity to deny payment by not filing within 21days; and, the cervical spine fusion is reasonable medical treatment.
2. Claimant seeks a determination that his cervical fusion surgery (the sixth surgery) was compensable medical treatment for his work-related injury; payment, pursuant to WC Rule 40, of all medical bills associated with that surgery; an increase in his Permanent Partial Impairment rating, and, if successful; an award of fees and costs of litigation and on-going medical treatment.
3. Defendant argues that it did meet its burden of proof with reasonable evidence standard, the Department correctly approved Acadia’s Form 27 because it was reasonably supported, that both Dr. Ball and Dr. Gennaro’s opinions against fusion surgery satisfy the adequate reasonable evidence standard stated in Rule 18.1100 and Rule 18.1200.
Whether Acadia waived its right to challenge causation.
4. The waiver doctrine is designed to compel parties to assert rights promptly and to guard against loss of evidence, faulty memory, and general staleness of a claim or defense. A party who fails to act when that party had the information available or could have the information available is held to have waived her rights, “the burden of establishing waiver is on the party asserting it.” Eastman v. Pelletier, 114 Vt. 419, 423 (1946).
5. Once a carrier has accepted a claim, the burden of proof is on the carrier to establish the propriety of terminating temporary benefits. Merrill v. University of Vermont, 133 Vt. 101, 105 (1974).
6. A waiver is a voluntary relinquishment of a known right, and can be express or implied. Green Mountain Ins. Co. v. Maine Bonding & Cas. Co., 158 Vt. 200, 206 (1992).
7. Workers’ Compensation Rule 3.900 requires the carrier to do one of three things within 21 days of receiving notice or knowledge of injury: 1) determine compensation is due and execute an appropriate compensation agreement and begin paying benefits immediately, 2) determine that no compensation is due and notify the claimant and this office in writing of its denial and provide supporting documentation, or 3) request an extension.
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8. Acadia had access to all medical records but did not raise the causation issue until nine years after accepting claim. Failure to prepare or sign a Form 21 in April 2004 does not absolve Acadia of its responsibility to challenge causation at the outset of the claim. Acadia’s failure to promptly comply with the Department’s requirements for filing forms cannot be accepted as a defense. See W.P. v. Madonna Corporation, Opinion No. 18-06WC, (2006). That failure to advance the defense was the voluntary relinquishment of a right and, therefore, a waiver.
9. Acadia had ample apparent factual information and time to investigate this claim and to challenge causation of the work-related injury to Claimant’s cervical spine. Acadia did not do so and thus, waived the right to challenge the compensability of any treatment for Claimant’s cervical spine prior to Claimant’s cervical fusion surgery on September 23, 2005.
Whether the sixth surgical procedure is compensable
10. Claimant is seeking payment for a cervical fusion surgery. He relies upon the opinions of Dr. Phillps and Dr. Bucksbaum to support his position that such a surgery is reasonable and necessary and related to the original work-related accident.
11. Defendant Richburg Builders argues that Claimant’s cervical fusion surgery is not reasonable, necessary, or related to the work accident. The Defendant relies upon the opinions of Dr. Gennaro and Dr. Ball.
12. Under the workers’ Compensation Act, the employer must furnish “reasonable surgical, medical and nursing services to an injured employee.” 21 V.S.A. § 640(a).
13. Since the outset of this claim, Acadia has fulfilled its duty under § 640(a). However, it now challenges the compensability of what would be a sixth surgical intervention.
14. In determining what is reasonable pursuant to 21 V.S.A. § 640(a), the decisive factor is not what the Claimant desires or believes to be the most helpful. Rather, it is what is shown by competent expert evidence to be reasonable to relieve his symptoms and maintain his functional abilities. McGraw v. Numaco, Inc., Op. No. 48-02WC (2002) (citing Quinn v. Emery Worldwide, Op. No. 29-00WC (2000)).
15. In this case, Claimant underwent three cervical surgeries since his injury, but each of these surgical interventions failed to provide more than temporary relief of his symptoms. Therefore, given the previous failed surgeries, contradicting opinions from qualified experts, and the discrepancies between Dr. Phillips’s diagnosis and the results of x-rays, MRIs, and a nerve conduction test, the
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fourth cervical fusion surgery cannot be characterized as reasonable. Colbert v. Starr Farm Nursing Home, Op. No. 05-01WC (2001).
16. The determination is one made at the time the treatment recommendation is made. Jacobs v. Beibel Builders, Op. No. 48-02WC (2002). Reasonable medical treatment is what competent medical evidence proves will relieve symptoms from a work-related injury or restore a claimant’s functioning capacity. See Britton v. Laidlaw Transit, Op. No. 47-03WC (2003).
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17. Claimant went ahead with the cervical fusion surgery on September 23, 2005 and asks that Defendant to pay for it. The Claimant contends, with expert opinion that the cervical fusion surgery was reasonable and successful and therefore is compensable.
18. Weighing both the credibility of the proffered witnesses and the persuasive effect of the submitted evidence is clearly within the realm of the trier of fact. See America Bruntaeger v. Zeller, 147 Vt. 247, 252 (1986).
19. Both Claimant’s treating neurosurgeon, Dr. Phillips and his treating pain management physician, Dr. Bucksbaum support the cervical fusion surgery.
20. The Defendant in the present case argues, with expert opinion, that the cervical fusion surgery was not likely to improve Claimant’s condition, making it unreasonable and therefore not compensable. Defendant’s experts, orthopedic surgeon Dr. Gennaro and neurosurgeon Dr. Ball, concur that Claimant’s medical history and the results of his physical examinations and diagnostic tests do not reasonably support the recommended cervical fusion surgery. Dr. Gennaro opined that Claimant’s cervical fusion surgery could not be determined successful until a full year passed without a decrease in the initial post-operative relief that Claimant experienced. Defendant claims that it is too early to determine whether the pain relief from the cervical fusion surgery Claimant is experiencing is temporary, comparing it to the five prior surgeries.
21. In considering conflicting expert opinions, this Department has traditionally examined the following criteria: 1) the length of time the physician has provided care to the claimant; 2) the physician’s qualifications, including the degree of professional training and experience; 3) the objective support for the opinion; and 4) the comprehensiveness of the respective examinations, including whether the expert had all relevant records. Miller v. Cornwall Orchards, Op. No. WC 20-97 (1997); Gardner v. Grand Union Op. No. 24-97WC (1997).
22. All physicians who rendered opinions in this case are equally qualified based on exemplary professional training and experience.
23. For the Claimant, Dr. Phillips has been the primary treating physician since April 2, 1997 and Dr. Bucksbaum has been treating Claimant since February 2002. Although the Department typically grants a great deal of deference to Claimant’s treating physician’s opinion, this deference is neither absolute nor guaranteed, and a Claimant’s desire for a certain procedure, coupled with a willing physician, “cannot justify an order from this Department that the employer pay for it.” Martin v. Bennington Potters, Op. No. 42-97WC (1997). Usually deference is given to the primary treating physicians; but given three unsuccessful cervical surgeries these criteria are not dispositive in this case.
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24. Because the opinions of the treating physicians, Dr. Phillips and Dr. Bucksbaum are contested by highly qualified experts, this decision turns on the third and fourth criteria, whether the opinion of primary treating physician, Dr. Phillips, offers more convincing reasoning and has greater objective support than the opinion of the other physicians who have evaluated this claimant. This decision will also depend upon the comprehensiveness of the examinations.
25. A thorough analysis reveals that the factors weigh in Defendant’s favor.
26. Dr. Phillips recommended cervical fusion surgery to relieve Claimant’s symptoms based on the medical history he has with the Claimant, on physical examinations, and on his evaluation of test results.
27. Claimant’s medical history includes three prior cervical surgeries performed by Dr. Phillips in 1998. All three surgeries failed to provide long-term relief. After the third cervical surgery, Dr. Phillips noted on June 16,1999 that he was “certainly of the mind not to advocate surgical considerations at all.” But, Dr. Phillips changed his mind and recommended a fourth cervical fusion surgery because Claimant was suffering from a “progressive neurologic condition” evidenced by an absent bicep reflex, radiculopathy, and cord compression. Contrary to Dr. Phillips’s opinion, the results of the EMG nerve conduction study performed by Dr. Ayers, at the request of Dr. Phillips, demonstrated normal EMG nerve conduction and indicated no cervical radiculopathy, plexopathy, peripheral neuropathy, or evidence of peripheral compression neuropathy. The radiologist concluded that the test was unlikely to support a finding of diffuse sensory polyneuropathy.
28. The basis for Dr. Phillips recommendation is less than persuasive. Not only did test results fail to support his conclusion that cervical surgery was reasonable, but also, Dr. Phillips did not thoroughly review all Claimant’s medical records. Dr. Phillips conceded that he reviewed some of the Claimants medical records.
29. Dr. Gennaro concluded that there was “insufficient evidence to support that additional surgical procedure, such as the recommended anterior inner body fusion discectomy at C5-6 with a fusion, is likely to mitigate his symptoms.”
30. Furthermore, Dr. Gennaro noted that multiple previous surgical interventions to this Claimant’s neck create well-understood conditions that repeat surgery has a much higher risk of complications. Additionally, Dr. Gennaro concluded that Claimant did not show a progressive neurological deficit—in fact, Dr. Gennaro found no change in Claimant’s condition between the IME he conducted on July 31, 2003 and the IME he conducted on Claimant on April 22, 2005. When Dr. Gennaro compared the MRI performed on January 5, 2005 to previous MRI’s conducted on March 25, 2004 and April 4, 2003 he noted that it showed cervical degenerative disc disease and an area of spurring which Dr. Phillips referred to as a possible source of pain, however, the radiologist indicated that there was no significant change in those levels since the previous MRI conducted in 2003.
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31. At the request of Dr. Phillips, Dr. Ball reviewed Claimant’s medical history and physically examined Claimant on December 12, 2004. Dr. Ball concluded that Claimant’s x-rays show no significant central canal stenosis, no evidence of instability, and no radicular or myelopathic symptoms. Thus, Dr. Ball opined that “the likelihood of surgery helping here is not high.”
32. Dr. Gennaro performed two IME’s of Claimant and reviewed all medical records, including MRI’s and x-rays. Dr. Ball completely reviewed all medical records, test results and he physically examined the Claimant. Both Drs. Gennaro and Ball opined against cervical surgery. The evidence clearly provides objective support against the reasonableness of Claimant’s cervical fusion surgery.
33. The objective support for finding Claimant’s cervical fusion surgery not reasonable medical treatment pursuant to § 640(a) as presented by Defendant’s experts is most persuasive and their examinations were also the most comprehensive. Therefore, the carrier is not obligated to retroactively authorize the cervical fusion surgery. Jacobs v. Beibel Builders, Op. No. 48-02WC (2002).
Whether Claimant is entitled to additional Permanent Partial Impairment Benefits as a result of his cervical fusion surgery
34. Because Claimant’s cervical fusion surgery is held to be not reasonable, Claimant is not entitled to additional Permanent Partial Impairment Benefits.
Whether Claimant is entitled to Attorney fees and costs
42. Because he has not prevailed, Claimant is not entitled to attorney fees and costs pertaining to his cervical fusion. 21 V.S.A. § 678 (a).
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ORDER:
Therefore, based on the foregoing Findings of Fact and Conclusions of Law,
1. Defendant Acadia waived its right to dispute causation of Claimant’s neck injury nine years after the fact.
2. Defendant is responsible for all legal and medical costs until the Claimant’s cervical fusion surgery on September 23, 2005 and for ongoing medical treatment relating to this claim prior to the cervical fusion surgery. Defendant is also responsible for Claimant’s permanent partial impairment rating prior to Claimant’s cervical fusion surgery.
3. Claimant is not entitled to payment for legal and medical costs resulting from the cervical fusion surgery on September 23, 2005. Claimant is also not entitled to additional permanent partial impairment as a result of his cervical fusion surgery.
Dated at Montpelier, Vermont this 15th day of August 2006.
____________________
Patricia Moulton Powden
Commissioner

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