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P. M v. Bennington Convalescent Center & FGB Corporation (January 2, 2007)

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P. M v. Bennington Convalescent Center & FGB Corporation (January 2, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
P. M. Opinion No. 55-06WC
By: Margaret A. Mangan
v. Hearing Officer
Bennington Convalescent Center
and FGB Corporation For: Patricia Moulton Powden
Commissioner
State File No. A-25839 & U-00957
Hearing held in Montpelier on August 29, 2006
Record closed on October 2, 2006
APPEARANCES:
Patrick Biggam, Esq., for the Claimant
Tammy Denton, Esq., for Defendant NH Insurance Co./American Health Care.
Jeffrey W. Spencer, Esq. for Defendant FGB
ISSUES:
1. Was Claimant’s spinal surgery on April 14, 2003 reasonable?
2. Did Claimant suffer an aggravation or a recurrence of her previous work related back injury while working for FGB Corporation?
3. What, if any, benefits is the Claimant entitled to receive?
CLAIM:
1. Medical expenses in the amount of $57,854.11 for treatment of back injury, including surgery on April 14, 2003;
2. Legal fees in the amount of 20% of the value awarded, not to exceed $9,000;
3. Costs.
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EXHIBITS:
Joint I: Medical Records
Defendant NH Insurance Co./American Health Care:
A Verne Backus, M.D.’s Curriculum Vitae
B Kuhrt Wieneke, M.D.’s Curriculum Vitae
Defendant FGB Corp.: Photographs
Claimant’s 1: Medical Billing Packet
FINDINGS OF FACT:
1. On June 2, 1988, Claimant injured her low back while working as a nurse’s aid for American Health Care (“AHC”). The injury occurred as she bent over to catch a patient to prevent a fall. The workers’ compensation insurer for AHC accepted the claim.
2. Claimant’s attempts to return to light duty as a nurse’s aid failed.
3. In May of 1989, Dr. Gates performed a partial discectomy at L4-5, but Claimant’s pain and numbness persisted postoperatively. Later she was diagnosed with a failed back syndrome.
4. In November 1989 Claimant was released to work with a lifting restriction of ten to twelve pounds.
5. In 1990, Claimant had reached medical end result. Dr. Gates assessed permanency at 34%; Dr. Ford assessed a 28% impairment.
6. In the summer of 1991, Claimant’s work for AHC ended because she was unable to do the work.
7. Claimant continued to treat for back and leg pain and weakness. She received prescriptions for pain medication and a TENS unit.
8. A July 1992 CT scan revealed a herniated disc on the left at L4-5. Steroid therapy and facet injections followed.
9. In November 1992, Dr. Gates recommended further surgery to relieve her symptoms that he opined were related to a slow exacerbation of her work related injury. He later explained that with the disc pathology from the original injury, she had continued degeneration in the spine, narrowing the lateral recess and causing her pain.
10. The carrier refused to pay for the recommended surgery or other continued care, although it paid for medication.
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11. By November 1998, the Claimant had been babysitting children in her home for four to five years.
12. In November of 1998, Claimant began working for Defendant FGB at a Laundromat, six hours per day, five days per week. The Laundromat was self-serve. Her pain continued at the level it had been, an eight on a scale of one to ten.
13. Claimant loaded washers and dryers and folded clothes. She lifted only weight she was comfortable lifting, asking for help from coworkers for heavy items. At all times, Claimant was compliant with the twenty pound lifting restriction she had been given. In addition, she was free to take breaks and sit as needed.
14. Work at the Laundromat did not change the progression of Claimant’s pain. It worsened, but in the same way it had when she was not working. Nothing at work affected the pain.
15. Claimant missed some time from work for a shoulder injury in December 2002. When she returned in February 2003, no mention was made of any back problems. During her time out of work for the shoulder, her back symptoms progressed in the same way they did when she was working.
16. On April 14, 2003, Dr. Lapinsky performed back surgery on Claimant. The procedures were laminectomies, foraminotomies and a fusion.
17. AHC denied payment for the back surgery, arguing that the surgery was not reasonable or causally related to Claimant’s work as a nurses’ aid. Further it pointed to her later work at the Laundromat as the cause.
18. Dr. Lapinsky wrote that the basis for the fusion surgery was to address the spinal instability that would result from the decompression aspects of the surgical procedure. It was also intended to “stabilize the motion segments that have degenerated.”
19. AHC denied payment for surgery based on the opinion of Dr. Verne Backus, Occupational Medicine expert, that the fusion was not a reasonable procedure because it was performed for pain alone, without evidence of instability. However, Dr. Backus agreed that the medical community differs on this subject, with many surgeons recommending fusion surgery for pain.
20. Dr. Kuhrt Wieneke, certified in orthopedic surgery and spine surgery, performed and independent medical examination of the Claimant on November 8, 2004. Dr. Wieneke opined that the Claimant suffered a series of aggravations while working at the laundromat because her back pain was more severe at the end of the workday.
21. Dr. Christopher Brigham, an expert hired by FGB Corporation to conduct a review of the Claimant’s medical records, supported the compensability of the fusion surgery, noting that it was performed “because of the instability created by the removal of so much bone structure.”
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22. Furthermore, Dr. Brigham opined that Claimant’s condition has followed a natural history since she was injured as a nurses’ aid. That history is that of waxing and waning. He opined that nothing about the job at the Laundromat aggravated her back condition. In fact, he thought the light work there was therapeutic, as contrasted with completely sedentary work.
23. Medical records demonstrate that Claimant’s back problems began in 1988 when she hurt her back helping a patient. She developed a failed back syndrome after the first surgery. Another surgical procedure was recommended before she ever started working at the Laundromat. Claimant lived with a level of back pain that slowly increased, but with no relationship with work. Claimant continued to treat unabated from the time she was hurt in 1988 to the present. Nothing happened at the Laundromat that worsened her condition.
24. Claimant incurred $57,854.11 in expenses for treatment related to the back injury, including the surgery.
25. The Claimant is requesting attorney fees and costs. Claimant’s Counsel has a 33 and 1/3% Fee Agreement with the Claimant. The Claimant has included an itemized list of litigation costs totaling $810.75.
CONCLUSIONS OF LAW:
1. In a worker’s compensation case, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, Morse Co., 123 Vt. 161 (1962). The claimant 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).
2. There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the inference from the facts proven must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
Compensability of Surgery
3. On the reasonableness of the surgery, Claimant has the burden of proof pursuant to 21 V.S.A. § 640(a). “In determining what is reasonable under § 640(a), the decisive factor is not what the claimant desires or what [he] believes to be the most helpful. Rather, it is what is shown by competent expert evidence to be reasonable to relieve the claimant’s back symptoms and maintain [his] functional abilities.” Quinn v. Emery Worldwide, Opinion No. 29-00WC (2000).
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4. The strong opinions of Dr. Lapinsky and Dr. Brigham convince me that the surgery performed by Dr. Lapinksy was reasonable and, therefore, compensable. 21 V.S.A. § 678 (a). The argument against compensability comes from Dr. Backus who opined that a fusion is performed only for spinal instability. The other experts amply address this concern by explaining that bone loss from the other surgical procedures put the Claimant at risk for instability, supporting the decision for a fusion. Further, degeneration in the Claimant’s spine also led to the need to stabilize motion segments with a fusion.
5. Therefore, the responsible carrier must pay the medical bills related to Claimant’s back injury, including costs of the surgery Dr. Lapinsky performed on April 14, 2003, subject to the fee schedule in Workers’ Compensation Rule 40.000. That total is $57,854.11.
Aggravation or recurrence
6. Next is the question whether Claimant’s current condition is a recurrence, making AHC the responsible employer; or whether it is an aggravation, with FBG as the responsible party. “Generally, when two employers or insurers dispute liability for a workers’ compensation claim arising out of successive injuries, the liability remains with the first insurer or employer if the second injury is a recurrence of the first.” Farris, 177 Vt. at 458, citing Pacher v. Fairdale Farms, 166 Vt. 626, 627 (1997) (mem.). “If, however, the second incident aggravated, accelerated, or combined with a preexisting impairment or injury to produce a disability greater than would have resulted from the second injury alone, the second incident is an ‘aggravation,’ and the second employer becomes solely responsible for the entire disability at that point.” Id.
7. “[T]he employer or insurer at the time of the most recent personal injury …shall have the burden of proving another employer’s or insurer’s liability.” 21 V.S.A. § 662(c). Farris v. Bryant Grinder, 177 Vt. 456, 461 (2005). Therefore, FGB has the burden of proving AHC’s liability.
8. The question turns on the medical evidence. Dr. Backus and Dr. Wieneke believe that Claimant’s work at the Laundromat accelerated her back condition, making it an aggravation under the law of Vermont. On the other side are Dr. Brigham and Dr. Lapinsky, each of whom opined that Claimant’s current condition is the natural progression of her underlying condition.
9. Where medical experts disagree, the Department considers the following factors: (1) the nature of treatment and length of time there has been a patient-provider relationship; (2) whether accident, medical and treatment records were made available to and considered by the examining physician; (3) whether the report or evaluation at issue is clear and thorough and included objective support for the opinions expressed; (4) the comprehensiveness of the examination; and (5) the qualifications of the experts, including professional training and experience; Morrow v. Vt. Financial Services Corp., Opinion No. 50-98WC (Aug. 25, 1998); Durand v. Okemo Mountain, Opinion No. 41S-98WC (Jul. 20, 1998).
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10. Dr. Lapinsky’s opinion carries greater weight for several reasons. First, the Department has traditionally given greater weight to the treating physician’s opinion. Searles v. Price Chopper, Opinion No. 68S-98WC (1998) (citing Mulinski v. C&S Wholesale Grocers, Opinion No. 34-98WC (June 11, 1998)). This case is no exception; Dr. Lapinsky’s education and experience as an orthopedic surgeon grant him a greater understanding of the Claimant’s condition than either occupational medical expert. Also, while Doctors Wieneke and Lapinsky are both experienced orthopedic surgeons, Doctor Lapinsky’s first-hand knowledge again tips the balance in his favor.
11. The evidence further strengthens Dr. Lapinsky’s opinion regarding the diagnosis and treatment of the Claimant. First, Dr. Gates initially recommended a second surgery to treat the Claimant’s destabilized and degenerating condition six years before the Claimant ever began working for Defendant FGB. Second, the Claimant’s pain and disability continued steadily from the early 1990’s until the 2003 surgery. Finally, the Claimant continued to experience pain in the same manner whether or not she was performing work related activities.
12. Therefore, the evidence supports recurrence in this case.
Attorney Fees and Costs
Based on 21 V.S.A. § 678(a) and Rule 10, Claimant is awarded Attorney fees of 20% of the total award or $9,000, whichever is less.
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ORDER:
THEREFORE, based on the above Findings of Fact and Conclusions of Law, the Defendant NH Insurance Co./American Health Care is ORDERED to pay:
1. Medical expenses related to the back injury, including the April 2003 surgery, in the amount of $57, 854.11;
2. Interest from the date each medical expense was incurred;
3. Litigation costs of $810.75;
4. Attorney fees of 20% or $9,000.00, whichever is less.
Dated at Montpelier, Vermont this 2nd day of January 2007.
________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

K. D. v. Lydall Thermal/Acoustical, Inc. (February 26, 2007)

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K. D. v. Lydall Thermal/Acoustical, Inc. (February 26, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
K. D. Opinion No.04-07WC
By: Rebecca L. Smith
v. Staff Attorney
Lydall Thermal/Acoustical, Inc. For: Patricia Moulton Powden
Commissioner
State File No. X-52920
APPEARANCES:
K. D., pro se Claimant
Andrew C. Boxer, Esq. for Defendant Lydall Thermal Acoustical Inc./St. Paul Travelers
Ryan Smith & Carbine for Defendant Greenfield Industries/ACE
McCormick, Fitzpatrick, Kasper & Burchard for Defendant Vermont Tap & Die/CNA
RULING ON DEFENSE MOTION TO DISMISS
According to the First Report of Injury filed in this matter, Claimant began working for Lydall Thermal/Acoustical, Inc. on July 26, 2004.
Claimant alleged that she injured both upper extremities from the repetitive motion involved in her work for Lydall. The injury was described as gradual onset, with September 12, 2005 identified as the date of “accident.”
St. Paul Travelers, Lydall’s workers’ compensation insurance carrier, initially denied this claim on the basis that the Claimant’s condition was a recurrence of a previous work-related injury. Two additional insurance carriers from former employers, ACE and CNA, were put on notice of potential liability in this claim.
Claimant had a work-related elbow injury in 1994 while employed by Vermont Tap & Die, which was accepted by insurer CNA and which resulted in the Claimant being placed at medical end result in 1998 with a finding of 19% impairment related to her upper extremities. In 2002, Claimant had injury to both elbows while employed by Greenfield Industries, for which insurer ACE, after initially denying the claim, paid benefits without prejudice. The Claimant was placed at medical end result with no permanent impairment in June 2003.
Following informal proceedings including conference regarding the 2005 claim, Defendant St. Paul Travelers was ordered on December 21, 2005 to pay medical benefits related to the Claimant’s upper extremity injuries. Claimant appeared pro se during proceedings in all three of these claims.
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On February 21, 2006 this claim was transferred to the formal hearing docket after Defendant St. Paul Travelers submitted additional evidence indicating that the Claimant treated for elbow pain a month prior to her claim at Lydall and described activities occurring in a home business. St. Paul Travelers amended its defense to assert that Claimant’s present condition was not related to her work at Lydall and to raise issues of credibility and material omissions regarding the Claimant’s reports.
The parties were sent notice on March 6, 2006 of a pre-trial conference with hearing officer Margaret Mangan to be held on April 17, 2006. The Claimant telephoned the Department on March 9, 2006 to report that she wanted to drop the claim and would send a letter to that effect to the Department and the defense attorneys. The Claimant did not send such a letter at that time.
The Claimant did not appear at the pre-trial conference, nor was she available by telephone. Defendant St. Paul Travelers filed a Motion to Dismiss the claim due to the Claimant’s failure to appear.
The Claimant later informed Hearing Officer Mangan by telephone that she did not wish to pursue her claim. On May 4, 2006, the Claimant sent to the Department a written statement that she could afford neither an attorney nor to take days off from work to attend to the administration of her claim.
On May 9, 2006 Hearing Officer Mangan wrote to the Claimant asking that the Claimant respond in writing if Claimant agreed that the insurer could stop paying medical benefits. The Department received no response to this letter.
On January 17, 2007 Defendant St. Paul Travelers renewed its Motion to Dismiss this claim.
Therefore, for her failure to prosecute this claim, pursuant to V.R.C.P. 41 (b) (2), the workers’ compensation claim of K. D. is hereby DISMISSED. Lydall Thermal Acoustical Inc./St Paul Travelers is hereby relieved of the Interim Order of December 21, 2005.
Dated at Montpelier, Vermont this26th day of February 2007.
_____________________________
Patricia Moulton Powden
Commissioner

Arthur Saffold v. Palmieri Roofing Inc. (June 21, 2011)

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Arthur Saffold v. Palmieri Roofing Inc. (June 21, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Arthur Saffold Opinion No. 15-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Palmieri Roofing, Inc. For: Anne M. Noonan
Commissioner
State File No. H-22526
OPINION AND ORDER
ATTORNEYS:
David Williams, Esq., for Claimant
Robert Cain, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant’s lumbar spine condition since 2006 compensable as a direct and natural consequence of his September 1994 work-related injury?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Medical summary
Claimant’s Exhibit 1: Workers’ Compensation Rule 14.9240
Claimant’s Exhibit 2: Operative procedure, November 30, 1994
Claimant’s Exhibit 3: Operative report, June 30, 2006
Claimant’s Exhibit 4: Dr. McLellan office note, July 3, 2008
Claimant’s Exhibit 5: Letter from Dr. Ross, December 15, 2008
Claimant’s Exhibit 6: Letter from Dr. Ross, February 19, 2010
Defendant’s Exhibit A: Medical records reviewed by Dr. Ross
Defendant’s Exhibit B: Radiology report, March 17, 1997
Defendant’s Exhibit C: Curriculum vitae, Victor Gennaro, D.O.
CLAIM:
All workers’ compensation benefits to which Claimant proves his entitlement as causally related to his lumbar spine condition since 2006
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 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.
Claimant’s 1994 Injury and Subsequent Treatment
3. Claimant worked for Defendant as a general laborer and roofer. On September 30, 1994 he injured his back while carrying a heavy roll of roofing paper.
4. Claimant presented to Littleton Orthopaedics on November 8, 1994 with complaints of low back and right-sided radicular pain. A subsequent myelogram revealed findings suggestive of an L4-5 disc herniation.1 On November 30, 1994 Claimant underwent a laminectomy and discectomy at that level.
5. Initially Claimant recovered well from the November 1994 surgery. His low back pain lessened significantly, and the pain, numbness and tingling in his right lower extremity abated as well.
6. Claimant underwent physical therapy in early 1995, during which he made steady progress but continued to complain occasionally of numbness in his thigh and/or foot. His therapy was interrupted for a time after he suffered a heart attack in March 1995. After his recovery from that event, Claimant continued to experience some residual low back pain, as well as radicular symptoms into his right lower extremity.
7. In December 1996 Claimant’s treating physician, Dr. Howard, determined that he had reached an end medical result and rated him with a 20% whole person permanent impairment. Even at that time, Claimant continued to experience symptoms in his low back and right leg, particularly with prolonged standing or sitting. Claimant also complained of ongoing weakness, numbness and tingling from his right leg down into his foot.
8. At Defendant’s request, in February 1997 Claimant underwent an independent medical examination with Dr. Jennings, who rated his permanent impairment at 10% whole person. Subsequently, the parties executed an Agreement for Permanent Partial Disability Compensation (Form 22) that reflected a compromise of the two impairment ratings, which the Department approved in July 1997.
1 Claimant has six lumbar vertebrae, which can lead to some confusion when counting disc levels. Early radiological studies and operative reports referred to the lowest (most inferior) lumbar disc level as L5-6; this corresponds to what later is referred to as the L4-5 level.
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9. Despite having reached an end medical result, Claimant continued to experience both low back pain and radicular symptoms down his right leg. For the most part, for the nine-year period between early 1997 and April 2006 he opted not to seek medical treatment for these symptoms. While always somewhat problematic, furthermore, they did not preclude him from working.
10. Claimant held a variety of jobs during this time, though none after March 2004. From July 1996 until some time in 1997 he worked at Hitchener’s, a golf club manufacturing company. For approximately two years thereafter, he owned and operated a small coffee shop; that business closed in 2000. From 2001 until 2004 he worked as a lathe operator at NSA Industries.
11. Following triple-bypass surgery in September 2001, Claimant was disabled from working at NSA Industries for six months. Upon returning to work he continued to experience cardiac symptoms. As a result, in March 2004 his doctors again advised him to stop working, which he did.
12. There is no credible evidence that Claimant’s work activities from 1997 through 2004 either caused or aggravated his low back pain or radicular symptoms.
13. In addition to his cardiac condition, which has required fairly constant medical vigilance since 2001, in 2004 Claimant also began experiencing pain in his upper extremities. These were diagnosed as repetitive stress injuries, arguably related to his employment at NSA, and for which he underwent multiple surgeries in 2005. Claimant testified that during the periods when these other medical conditions were requiring active treatment, his low back and leg pain “took a back seat.” I find this testimony credible.
14. Claimant has not worked since March 2004. He has been receiving social security disability benefits since that time, primarily due to his cardiac condition.
Claimant’s 2006 Surgery
15. In April 2006 Claimant experienced the spontaneous onset of low back pain with radicular symptoms down his right leg. Contemporaneous medical records reflect that Claimant was “simply walking along” when he felt a “spasm” in his back, followed by worsening pain, tingling, numbness and weakness down his right lower extremity. The symptoms were exactly the same as those he had experienced prior to his 1994 surgery.
16. Claimant testified that although he had never been symptom-free since his original injury in 1994, the pain he felt in April 2006 was significantly worse. Contemporaneous medical records corroborate this testimony, which I find credible.
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17. A May 2006 MRI revealed a right-sided disc herniation at L4-5, the same level as had been operated on in 1994. There also was evidence of scar tissue at the site. Upon reviewing the MRI, Dr. Sengupta, the orthopedic surgeon to whom Claimant had been referred, observed that the disc herniation “appears to be moderate in size, but it appears that because of the scar tissue around the right L5 nerve root it is producing significant symptoms on the right leg.”
18. As treatment for Claimant’s symptoms, Dr. Sengupta recommended a repeat L4-5 discectomy, which Claimant underwent on June 29, 2006. In his operative findings, Dr. Sengupta reported “scar tissue identified from prior surgery.” Dr. Sengupta removed some of this scar tissue in order to better release the nerve root.
19. The medical records reflect that after the June 2006 surgery Claimant initially experienced good relief of his symptoms, but by the following year his radicular complaints had returned. A June 2007 MRI study showed disc degeneration at both L4-5 and L5-S1, but no evidence of disc herniation at either level. In addition, once again there was significant scar tissue around the L5 nerve root.
20. Claimant’s symptoms still persist. Having failed to realize significant relief from two prior surgeries, it is unlikely that a third surgery will prove successful.
Expert Medical Opinions
(a) Dr. Gennaro
21. At Defendant’s request, in October 2006 Claimant underwent an independent medical examination with Dr. Gennaro, an orthopedic surgeon. In addition to personally examining Claimant and taking his history, Dr. Gennaro also reviewed Claimant’s entire medical record and his deposition testimony as well. The question put to him was whether Claimant’s June 2006 surgery represented a recurrence causally related to his 1994 work injury and subsequent disc surgery or alternatively, whether it reflected an unrelated aggravation or new injury.
22. Dr. Gennaro concluded that Claimant’s 2006 surgery reflected neither an aggravation nor a recurrence. As Claimant had not identified any specific work or other activity that might have provoked a disc herniation, Dr. Gennaro discarded the possibility of an aggravation or new injury. Given the number of years that had passed since Claimant’s original surgery, furthermore, Dr. Gennaro deemed it unlikely that the 2006 surgery would have been caused by a recurrent disc herniation, as those typically occur within a relatively short period of time (6 to 36 months) after the original injury and surgery.2
2 Dr. Gennaro acknowledged his use of the term “recurrent disc herniation” referred to its medical definition – a reherniation of disc material at the same level and the same side as previously. As discussed infra, Conclusion of Law No. 5, the term “recurrence” as defined in Workers’ Compensation Rule 2.1312 has a somewhat different legal meaning.
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23. Having discarded both aggravation and recurrence as likely causes, Dr. Gennaro concluded that the symptoms Claimant began experiencing in 2006 most likely represented the manifestation of longstanding chronic degenerative disc disease in his lumbar spine. The natural progression of this disease is evidenced not only by worsening degeneration at the L4-5 disc level (the site of Claimant’s 1994 surgery), but also at other levels as well.
24. Degenerative disc disease is an evolving process. As a disc begins to degenerate, the jelly-like central portion, or nucleus pulposus, becomes less elastic and begins to flatten out. This causes the harder exterior covering, or annulus, to bulge. As the process continues, the annulus may weaken and crack, allowing disc material to herniate through the opening.
25. When a disc herniates, enzymes are released, which irritate the nerve root. This chemical irritation is the primary cause of most nerve root, or radicular, symptoms. Once irritated, the nerve root becomes inflamed and is less able to tolerate a smaller space within the spinal canal. Scar tissue from a previous surgery can make this small space even smaller, but does not itself cause the nerve root to become irritated or inflamed.
26. It is quite typical for patients with degenerative disc disease to experience episodic flare-ups and remissions. According to studies cited by Dr. Gennaro, furthermore, disc surgery does not alter the natural progression of the condition. That is, over the long term patients who have undergone disc surgery are just as likely to experience recurrent symptoms as those who have not had surgery. The presence or absence of scar tissue from a prior surgery appears not to be a relevant factor, therefore.3
27. To summarize, Dr. Gennaro concluded that Claimant’s condition since 2006 has been the consequence solely of “aging and time.” Notwithstanding some residual symptoms over the years, his 1994 surgery was successful – his condition markedly improved from its pre-surgery state, and then stabilized to the point where he was able to return to work and resume normal activities for many years thereafter. The degenerative disease in his spine continued to progress naturally, however, until worsening symptoms attributable entirely to that condition led to repeat surgery in 2006.
(b) Dr. McLellan
28. At Dr. Sengupta’s referral, in July 2008 Claimant underwent an evaluation with Dr. McLellan, a physician at Dartmouth Hitchcock Medical Center. Upon reviewing Claimant’s June 2007 MRI Dr. McLellan remarked that it revealed evidence of a disc herniation and post-operative changes at L4-5, and also “considerable scar tissue around [the] right L5 nerve root.”
3 Claimant correctly notes that one of the studies cited by Dr. Gennaro, published by Drs. Cinotti and Roysam in 1998, may have limited applicability to patients whose symptoms recurred as shortly after surgery as Claimant’s did. Dr. Gennaro cited additional studies as well, but these were not made available for the hearing officer’s review.
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29. Absent a more comprehensive review of Claimant’s medical records, Dr. McLellan declined to issue a final opinion as to the causal relationship, if any, between Claimant’s 1994 surgery and the symptoms that led to his 2006 surgery. Speaking “in a more generic way,” however, Dr. McLellan stated:
[Claimant] clearly had a disc herniation back in 1994. Individuals who have had disc herniations are at high risk of recurrence. In the absence of an intervening injury, recurrent symptoms on the same side at the same level are more probably than not related to the original injury. Given insidious onset of [symptoms] in the same dermatomal pattern as before and given the MRI results, the current radicular symptoms are also more probably than not related to the original injury.
30. Dr. McLellan did not conduct any further review of Claimant’s medical records, did not issue a final opinion specific to Claimant’s case and did not testify at the formal hearing. I find it difficult, therefore, to accord much weight to his generic statement as to the cause of Claimant’s recurrent symptoms.
(c) Dr. Ross
31. At the request of Claimant’s attorney, Dr. Ross, an orthopedic surgeon, conducted a medical records review in December 2008. Although his initial report was somewhat confusing, ultimately Dr. Ross concluded that Claimant’s 2006 disc herniation, subsequent surgery and current condition most likely were causally related to his 1994 injury and surgery. Dr. Ross testified to this effect at the formal hearing.
32. From his review of a select portion of Claimant’s medical records, Dr. Ross gleaned that Claimant never fully recovered from the 1994 surgery, that his pain began to recur within a matter of weeks, and that his clinical course for years thereafter was punctuated by frequent exacerbations and only temporary remissions. From this, Dr. Ross concluded that the 1994 surgery had been unsuccessful. Thus, he would have advocated for repeat surgery to more fully relieve the L5 nerve root compression much sooner, certainly well before 2006.
33. From his review of Dr. Sengupta’s surgical findings in 2006, Dr. Ross concluded that the scar tissue that resulted from Claimant’s 1994 surgery was itself compressing his L5 nerve root. To a reasonable degree of medical certainty, therefore, in his opinion the 1994 surgery was a “major factor” in causing the symptoms for which Claimant underwent surgery in 2006.
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34. Dr. Ross acknowledged that there was no radiological evidence that Claimant’s 1994 surgery had failed to decompress his L5 nerve root adequately. Rather, his conclusion in this regard was based on his understanding of Claimant’s clinical presentation in the weeks, months and years thereafter. Dr. Ross never reviewed Claimant’s entire medical record, however, which is voluminous, nor did he ever interview Claimant personally or read his deposition. Given these omissions, it is difficult to understand how Dr. Ross was able to appreciate Claimant’s clinical course and pattern of recurrent symptoms accurately. I find that his conclusions are rendered less credible as a result.
35. Dr. Ross disagreed with Dr. Gennaro’s assertion that a patient who has undergone prior disc surgery is no more likely to suffer a recurrent herniation than one who hasn’t. According to Dr. Ross, both because a prior surgery is likely to cause scar tissue to form and because an annulus that has torn once is more likely to tear again, recurrent symptoms are more prevalent in the surgical population.
36. Dr. Ross also disagreed with Dr. Gennaro as to the expected progression of Claimant’s degenerative disc disease. In his opinion, there was no basis from which to conclude that the natural history of Claimant’s disc degeneration would have caused his symptoms to recur in 2006 had the 1994 surgery not predisposed him to further deterioration. At the same time, however, Dr. Ross admitted that he had no specific knowledge or opinion as to whether Claimant’s 1994 surgery actually accelerated the progression of his degenerative disc disease in any way.
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 in this claim is one of causation. Claimant asserts that his condition since 2006 represents a recurrence of symptoms causally related to his compensable 1994 injury and subsequent surgery. Defendant asserts that Claimant’s condition has resulted from the natural progression of his degenerative disc disease, and that his symptoms are not causally related at all to his 1994 injury and surgery.
3. When a primary injury is determined to be compensable, all of the medical consequences and sequelae that flow from it are deemed compensable as well. 1 Larson’s Workers’ Compensation Law §10.01 at p. 10-3 (Matthew Bender, Rev. Ed.). Thus, once the work-connected character of an injury or condition has been established, its subsequent progression remains compensable, so long as the worsening is not shown to have been produced by an independent nonindustrial cause. Id., §10.02 at p. 10-3.
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4. For the purposes of determining workers’ compensation liability, it is critical to distinguish between a condition that has worsened as a direct and natural result of a compensable primary injury and one that has worsened independently from any work-related event. In the first instance, the causal link back to the primary injury remains intact, and the employer on the risk at the time remains responsible for whatever treatment and/or disability results from the worsening. See, e.g., Jackson v. True Temper Corp., 151 Vt. 592 (1989). In the second instance, the causal link is severed, and the employer is no longer liable. See 1 Larson’s Workers’ Compensation Law, supra at §10.02D, n.9 and cases cited therein.
5. Both parties here have framed their arguments at least partially as a dispute as to whether Claimant’s 2006 surgery and current condition should be characterized as a “recurrence.” Workers’ Compensation Rule 2.1312 defines a recurrence as “the return of symptoms following a temporary remission.” This term most often is distinguished from an “aggravation,” which Rule 2.1110 defines as “an acceleration or exacerbation of a pre-existing condition caused by some intervening event or events.”
6. I do not consider the issue presented by this claim as one involving either a recurrence or an aggravation. Although Claimant credibly testified that he suffered from residual symptoms continuously from the time of his 1994 surgery forward, he also testified that they did not worsen to the point of requiring medical treatment until 2006. I cannot characterize these facts as a “return” of symptoms following a “temporary” remission.
7. Nor can I characterize Claimant’s worsening symptoms in 2006 as the type of intervening “event” that would trigger an aggravation analysis. The more appropriate question, therefore, is simply to determine whether Claimant’s condition since 2006 has flowed directly from his compensable 1994 injury, or whether it has resulted from some entirely independent cause. See Pacher v. Fairdale Farms, 166 Vt. 626, 628 (1997) (finding of new injury, distinct from prior injury, does not have to be either aggravation or recurrence).
8. Each party here presented its own expert testimony on this issue. Dr. Ross concluded that scar tissue from Claimant’s 1994 surgery was a “major factor” in causing the symptoms for which he underwent surgery in 2006, and from which he continues to suffer currently. Dr. Gennaro concluded that the 1994 surgery was irrelevant to the process, and that Claimant’s degenerative disc disease worsened independently to the point where the 2006 surgery became necessary.
9. 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).
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10. The first factor does not favor either expert, as neither was a treating provider. The fifth factor is also neutral, as both experts are well-qualified to render opinions on the causation issue presented here.
11. The second and fourth factors favor Dr. Gennaro. He reviewed Claimant’s entire medical record, read his deposition and most importantly, interviewed Claimant personally as to the history of his injury and the progression of his symptoms from 1994 forward. In contrast, Dr. Ross reviewed only a portion of Claimant’s medical record. From this he determined that Claimant’s 1994 surgery had failed completely, that he never fully recovered and that his symptoms were almost as troublesome in the years thereafter as they became in 2006. From the records Dr. Ross reviewed, I cannot discern how he could have reached these conclusions.
12. The third factor weighs in Dr. Gennaro’s favor as well. His opinion was clear, thorough and objectively supported. It adequately accounted for the presence of disc degeneration at other levels in Claimant’s lumbar spine at the same time that it discounted scar tissue as a contributing factor. The fact that Dr. Gennaro’s conclusions were consistent with findings reported in the medical literature, while by no means determinative, also lends support to his opinion. See, e.g., Kurant v. Sugarbush Soaring Association, Inc., Opinion No. 17-10WC (May 4, 2010).
13. I conclude that Dr. Gennaro’s opinion was more persuasive than Dr. Ross’. I also conclude, therefore, that Claimant has failed to establish the required causal link back to his compensable 1994 injury so as to render either his 2006 surgery or his current condition compensable. Claimant’s current condition is not the direct and natural result of his compensable primary injury. It is the result of degenerative disc disease, which has progressed independently from any work-related injury or sequelae of treatment.
14. Claimant having failed to prevail on his claim, he is not entitled to an award of costs or 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 his 2006 surgery and subsequent condition is hereby DENIED.
DATED at Montpelier, Vermont this 21st day of June 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.

Gregory Bower v. Mount Mansfield (January 18, 2012)

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

Gregory Bower v. Mount Mansfield (January 18, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Gregory Bower Opinion No. 03-12WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Mount Mansfield For: Anne M. Noonan
Commissioner
State File No. BB-57124
OPINION AND ORDER
Hearing held in Montpelier, Vermont on November 9, 2011
Record closed on December 9, 2011
APPEARANCES:
Steven Robinson, Esq., for Claimant
Marion Ferguson, Esq., for Defendant
ISSUE PRESENTED:
Is Defendant responsible for the surgical repair of Claimant’s anterior cruciate ligament tear as a natural and direct consequence of Claimant’s December 2009 work injury, or does the October 2010 apple-picking incident qualify as an independent intervening event sufficient to break the causal link back to that injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Dr. Huber’s November 8, 2011 deposition (with attached exhibits)
Claimant’s Exhibit 2: Letter to Dr. Wieneke, October 12, 2011
Defendant’s Exhibit A: Dr. Wieneke curriculum vitae
Defendant’s Exhibit B: Dr. Wieneke report, October 25, 2011
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 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 as a volunteer ski host at Defendant’s various mountain slopes. His responsibilities included helping skiers define where they wanted to ski. Claimant was an expert skier and knew Defendant’s slopes well. He was otherwise unemployed.
4. On December 30, 2009 Claimant caught a ski tip while skiing in the course of his host duties. He rotated around the ski and fell backwards down the mountain. After coming to a stop, he took five minutes to compose himself before attempting to get up. When he did so he was unable to bear any weight on his left leg. Claimant skied down to the bottom of the mountain using only his right leg.
5. Claimant experienced significant swelling in his left knee to the point where he could not bend it. Defendant accepted this injury as compensable and paid medical benefits accordingly.
Treatment for the Accepted Ski Injury
6. After waiting a few days to allow the swelling in his knee to subside, Claimant sought treatment at Stowe Urgent Care. He was examined for a possible anterior cruciate ligament (ACL) injury, but both anterior drawer and Lachman’s tests were negative. These are the two most sensitive tests for detecting an ACL injury, but they are far less accurate in the early stages of a knee injury, when the patient is likely to be experiencing increased swelling, pain and guarding. Claimant was diagnosed with a knee sprain and released to return to work with restrictions.
7. Claimant followed up with Stowe Urgent Care on January 11, 2010. By then his knee felt better, but was still slightly unstable. As a protective measure, the physician advised him to wear a knee brace for stability. As before, he was released to return to work with restrictions.
8. Claimant next treated with Pierre Delfausse, a physician’s assistant, on February 2, 2010. He complained of continuing discomfort in the left knee, reported that he did not completely trust it and that he was limiting his activities accordingly. Upon examination, Mr. Delfausse noted mild looseness in the left leg compared to the right and also that the left ACL was not attached solidly. Neither the anterior drawer nor Lachman’s tests produced positive results, though Claimant was not relaxed during the exam and therefore these findings likely were affected by pain and guarding.
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9. From March to the end of the ski season, Claimant performed some hosting duties for Defendant, but when he did so he wore both a knee brace and four ace bandages on his left knee. He could only ski five runs per day, whereas before he could ski twenty runs. Claimant’s activity level after the ski season ended was similarly diminished. He played tennis only three times, and could not play golf at all. Both of these activities involve twisting and torque to the knee, a motion that he was unable to manage. Claimant was able to swim, perform landscaping work around his four-acre home, and chop and stack wood.
10. Claimant did not seek any treatment for his knee between February and September 2010. On September 16, 2010 he sought treatment at Stowe Urgent Care for a respiratory ailment. While he was there, he remarked to Mr. Delfausse that his left knee “was just not right.” Upon reexamining the knee Mr. Delfausse noted both positive anterior drawer and positive Lachman’s test findings. As treatment, he recommended physical therapy. From the evidence submitted it is unclear whether Claimant took any steps to pursue this recommendation.
The Apple-Picking Incident
11. On October 6, 2010 Claimant took his family to a private apple orchard across the street from his house. He reached up for an apple and could just barely touch the bottom of it. He then hopped approximately one to two inches straight up to pick the apple. When he landed, his left leg gave out beneath him, he felt excruciating pain and he crumpled to the ground.
12. Claimant sought treatment with Mr. Delfausse on that same day. Of note, Mr. Delfausse reported that Claimant heard a “pop” in his knee when he jumped for the apple, an observation that Claimant strenuously and credibly denied at formal hearing. In any event, as he had in mid-September Mr. Delfausse noted positive findings in his clinical exam on both anterior drawer and Lachman’s tests. He ordered an MRI of Claimant’s left knee and referred him to Dr. Huber, an orthopedic surgeon.
13. Claimant next treated with Leah Hartenstein, Dr. Huber’s physician’s assistant, on November 2, 2010. Ms. Hartenstein reported increased laxity in Claimant’s knee, as evidenced by positive findings with both the anterior drawer and Lachman’s tests. Subsequent diagnostic testing, both MRI and x-ray, revealed a full thickness ACL tear, and a medial meniscus tear as well. In consultation with Dr. Huber, Claimant elected to undergo surgical repair. Surgery was scheduled, but then cancelled when Defendant advised that it would not voluntarily pay. Claimant has yet to undergo the procedure.
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Expert Medical Opinions
14. Both parties presented expert medical testimony regarding the causal relationship between Claimant’s ACL injury and either his December 2009 fall while skiing or the October 2010 apple-picking incident. Dr. Huber concluded that more likely than not the December 2009 fall while skiing caused Claimant’s ACL injury. Dr. Wieneke concluded that more likely than not the October 2010 apple-picking incident was the cause.
(a) Dr. Huber
15. Dr. Huber is a board certified orthopedic surgeon. His practice focuses on the full spectrum of knee issues. He performs 20 to 25 knee surgeries per month. Given his clinic’s proximity to a major ski resort, he sees knee injuries every day.
16. Dr. Huber testified credibly in his deposition, to a very high degree of medical certainty, that Claimant’s December 2009 skiing mishap was the cause of his injured ACL. Dr. Huber based his opinion on the following facts:
• Although Claimant initially was not diagnosed with an ACL tear immediately after his skiing-related fall, this does not mean that one had not occurred. Due to significant patient guarding, pain and swelling, it can take several weeks to a couple of months to diagnose a torn ACL. The fact that in January 2010 the treating physician recommended that Claimant wear a brace to stabilize his knee is an indication that Claimant’s knee was unstable even at that early stage.
• On two occasions prior to the apple-picking incident, Mr. Delfausse reported signs indicative of an ACL injury – looseness and laxity on February 2, 2010 and positive anterior drawer and Lachman’s tests on September 16, 2010.
• Claimant never felt his knee was stable after his December 2009 fall, and as a result significantly curtailed his activities thereafter.
• Claimant’s skiing mishap was such that it generated a significant amount of force, of a type that can cause an ACL to tear. In contrast, the apple-picking incident likely did not generate sufficient force, in either type or degree, to cause an ACL tear.
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17. According to Dr. Huber, even if Claimant’s ACL was not actually torn as a result of his fall while skiing, it clearly was injured to the point that it was unstable. It thus prohibited Claimant from engaging in many of the activities he enjoyed, including golf, tennis and aggressive skiing, because he was unable to manage the required cutting, twisting or torque movements. Surgical reconstruction is the treatment most likely to remedy the knee’s deficient function in this respect. In Dr. Huber’s view, therefore, whether the December 2009 fall actually caused an ACL tear or not, clearly it caused sufficient instability to require surgical repair in a patient with Claimant’s active lifestyle. I find Dr. Huber’s reasoning in this regard to be credible.
(b) Dr. Wieneke
18. Dr. Wieneke is a board certified orthopedic surgeon. His practice currently is limited to performing independent medical examinations. At Defendant’s request, Dr. Wieneke performed a medical records review.
19. Dr. Wieneke concluded, to a reasonable degree of medical certainty, that Claimant’s need for surgical repair of his ACL tear stems from the October 2010 apple-picking incident rather than from his December 2009 fall while skiing. Dr. Wieneke based his conclusion on the following facts:
• Claimant did not initially exhibit any signs indicative of an ACL injury when he first reported to Stowe Urgent Care. His station and gait were normal, he had only mild swelling with grossly stable ligaments and both his anterior drawer and Lachman’s tests were negative.
• Claimant was released to return to work in early February 2010, finished the ski season without incident, and was able to play tennis during the summer.
• As he jumped for the apple in October 2010, Claimant reportedly felt a “pop,” which was accompanied immediately by sharp pain and rapid swelling. The ensuing MRI documented a full thickness ACL tear.
20. It is unclear whether Dr. Wieneke actually reviewed all of Claimant’s relevant medical records prior to rendering his opinion. Of particular note, he appears not to have reviewed the record of Mr. Delfausse’s September 16, 2010 examination, in which Claimant was reported to have both positive anterior drawer and Lachman’s findings. This omission is critical. Dr. Wieneke himself admitted that the anterior drawer and Lachman’s tests are accurate indicators of an ACL injury. The positive results in September provide strong evidence, therefore, that Claimant’s injury predated the October 2010 apple-picking incident. Dr. Wieneke’s opinion suffers from its failure to address this important finding.
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21. I note other deficiencies in Dr. Wieneke’s opinion as well. He does not appear to have accounted for the likelihood that Claimant’s negative findings on anterior drawer and Lachman’s tests in January 2010 occurred in the context of increased swelling, pain and guarding, all of which may have masked the extent of an ACL injury. In addition, his statement that Claimant was able to ski and play tennis after the December 2009 fall does not accurately reflect Claimant’s testimony, which I find credible, as to his limitations when engaging in those activities. Last, as Dr. Wieneke acknowledged, his opinion was based solely on a records review, whereas having the opportunity physically to examine the patient is typically a better approach.
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 here is whether Claimant’s current ACL injury, which now requires surgical repair, is a consequence of his December 2009 work-related fall while skiing, for which Defendant is liable, or whether it arose instead as a result of the non-work-related apple-picking incident in October 2010. The parties have briefed their respective positions as if the claim thus presents an aggravation-versus-recurrence dispute. The more appropriate analysis is to ask whether the apple-picking incident constituted an independent intervening cause sufficient to break the causal link back to the primary work-related injury.
3. The parties presented conflicting expert testimony as to the cause of Claimant’s current knee injury and need for surgical treatment. Dr. Huber concluded that it very likely relates back to his December 2009 fall while skiing, and definitely is not causally related to the October 2010 apple-picking incident. Dr. Wieneke reached the opposite conclusion.
4. When faced with conflicting expert medical evidence, 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).
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5. I conclude here that Dr. Huber’s opinion is the most credible. In addition to reviewing all of Claimant’s pertinent medical records, Dr. Huber also conducted a comprehensive physical examination. He adequately addressed the reasons why Claimant’s anterior drawer and Lachman’s tests were negative immediately after the December 2009 fall, but positive thereafter. He clearly explained how the mechanism of that fall was far more likely to cause an ACL injury than the apple picking activity that Claimant described. His experience with skiing-related knee injuries is impressive. Taken together, these factors render Dr. Huber’s causation opinion highly persuasive.
6. Dr. Wieneke’s opinion is lacking in important respects. It is based on a records review only, with no physical examination. It does not account for a significant objective finding – positive anterior drawer and Lachman’s tests in September 2010 – that established Claimant’s ACL injury to have occurred before the apple-picking incident, not after. It mischaracterizes the extent to which Claimant limited his activities following his skiing-related fall. These omissions render it unpersuasive.
7. In accordance with Dr. Huber’s view, therefore, I conclude that Claimant’s current ACL injury is a natural and direct consequence of his December 2009 work-related fall while skiing. Either that event caused the ACL tear itself, or it caused sufficient laxity in the joint to require surgical repair in a patient with Claimant’s active lifestyle.
8. In reaching this result, I do not conclude that Claimant suffered a “recurrence” as that term is defined in the workers’ compensation rules. There was no “temporary remission” here following which Claimant’s symptoms returned. Workers’ Compensation Rule 2.1312. Rather, the facts establish that Claimant suffered a compensable work-related knee injury, resulting in symptoms that continued to plague him to the point where additional treatment became necessary.
9. Notwithstanding Dr. Huber’s opinion that given both Claimant’s lifestyle and the laxity in his knee he would have been an appropriate candidate for surgical treatment even before the October 2010 apple-picking incident, the fact remains that no such surgery was proposed until after that event occurred. It is necessary to inquire, therefore, whether the October 2010 apple-picking incident qualifies as an independent intervening event sufficient to break the causal link back to the December 2009 work injury.
10. Once an injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from it likewise is deemed to have arisen out of the employment. 1 Lex K. Larson, Larson’s Workers’ Compensation §10 (Matthew Bender, Rev. Ed.) at p. 10-1. Had there been no apple-picking incident, it is at least possible, if not likely, that in accordance with this general principle Defendant would have been obligated to pay for the treatment Mr. Delfausse recommended in September 2010, upon learning that Claimant’s knee still was “not right” since his December 2009 fall.
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11. An exception to the general rule exists as to consequences that result from an independent intervening non-industrial cause attributable to the claimant’s own intentional conduct. Lushima v. Cathedral Square Corp., Opinion No. 38-09WC (September 29, 2009), citing Larson’s Workers’ Compensation, supra. Such an event may be sufficient to break the chain of causation back to the primary injury and thereby may relieve the employer of further workers’ compensation liability.
12. Not all intervening events are sufficient to fall within the exception and thus sever the link between the work injury and any ongoing disability or need for treatment. It is only in instances where the claimant, knowing of certain weaknesses arising from the primary injury, “rashly undertakes activities likely to produce harmful results” that the causal connection disintegrates. Lushima, supra, quoting Johnnie’s Produce Co. v. Benedict & Jordan, 120 So.2d 12 (Fla. 1960); Larson’s Workers’ Compensation, supra at §10.06[3], p. 10-17. In other words, for an intervening, non-work-related event to sever the connection back to a compensable injury the facts must establish that the claimant acted negligently under the circumstances.
13. I cannot conclude here that Claimant’s apple-picking endeavor was so rashly undertaken as to amount to negligent conduct. He stretched to pick an apple, and finding it just beyond his grasp hopped up an inch or two to reach it. Perhaps with the benefit of hindsight he would have chosen another apple instead. For him to choose this apple may have been momentarily thoughtless, but it still was not so unreasonable a decision as to be negligent. See, Larson’s Workers’ Compensation, supra at §10.06, p. 10-13 (characterizing certain spontaneous, impulsive or momentarily thoughtless human acts as instinctive rather than negligent); compare McMillan v. Bertek, Inc., Opinion No. 95-95WC (January 29, 1996) (reaching for branch while falling from tree was spontaneous act not rising to level of negligence), with Lushima, supra (engaging in extended physical altercation with border patrol agents deemed deliberately rather than momentarily thoughtless).
14. I conclude that Claimant has sustained his burden of proving that his current ACL condition is a direct and natural consequence of his compensable December 2009 injury. I further conclude that the October 2010 apple-picking incident does not qualify as an intervening non-work-related event sufficient to sever the causal link back to that primary injury. Consequently, I conclude that Defendant remains responsible for all reasonable and necessary medical treatment causally related to Claimant’s ACL injury, including surgical reconstruction as indicated by Dr. Huber.
15. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $1,825.71 and attorney fees totaling $5,916.00. An award of costs to a prevailing party is mandatory under the statute. As Claimant has prevailed, these are awarded.
16. As for attorney fees, these lie within the commissioner’s discretion. I conclude that 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. Medical benefits covering all reasonable and necessary medical services and supplies causally related to treatment of Claimant’s ACL injury, including surgical repair as indicated by Dr. Huber, in accordance with 21 V.S.A. §640; and
2. Costs totaling $1,825.71 and attorney fees totaling $5,916.00, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 18th day of January 2012.
__________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

Douglas Cain v. New Penn Motor Express Inc (April 9, 2013)

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

Douglas Cain v. New Penn Motor Express Inc (April 9, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Douglas Cain Opinion No. 12-13WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
New Penn Motor Express, Inc.
For: Anne M. Noonan
Commissioner
State File No. DD-57222
OPINION AND ORDER
Hearing held in Montpelier on December 19, 2012
Record closed on January 28, 2013
APPEARANCES:
Patrick Biggam, Esq., for Claimant
Keith Kasper, Esq., for Defendant
ISSUE PRESENTED:
Did Claimant’s July 19, 2011 work-related injury cause and/or aggravate his cervical myelopathy, thus necessitating surgery?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Stipulation
Claimant’s Exhibit 1: Photograph of motorcycle
Claimant’s Exhibit 2: Deposition of Paul Penar, M.D., December 10, 2012 (with attached curriculum vitae)
Defendant’s Exhibit A: Curriculum vitae, Verne Backus, M.D., M.P.H.
CLAIM:
All workers’ compensation benefits to which Claimant proves his entitlement as a consequence of his cervical myelopathy and resulting surgery
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
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STIPULATED FACTS:
The parties have stipulated to the following facts:
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 and correspondence contained in the Department’s file relating to this claim.
3. On July 19, 2011 Claimant suffered a personal injury by accident arising out of and in the course of his employment for Defendant. Claimant reported the accident to his employer, and continued to work for a period of time thereafter.
4. On August 13, 2011 Claimant presented to the Fletcher Allen Health Care Emergency Department with complaints of severe upper and lower extremity weakness and balance issues. He was diagnosed with cervical myelopathy, a condition caused in his case by a herniated cervical disc impinging upon his spinal cord. Claimant underwent surgery the following day with Dr. Penar, a neurosurgeon, who performed a C3-4 discectomy and fusion.
5. Claimant has not returned to work since his cervical surgery.
6. Claimant had a prior compensable work injury to his lower back, which resulted from a fall on December 14, 2010 (State File No. CC-56141). He underwent an L5-S1 laminectomy on January 17, 2011. Ongoing problems necessitated a second surgery, which Claimant underwent on April 25, 2012. Following this second surgery he suffered a stroke, and is currently unable to work.
7. Defendant commenced paying temporary total disability benefits following Claimant’s April 25, 2012 lower back surgery, as this surgery was causally related to his compensable December 14, 2010 injury.
8. Claimant’s average weekly wage as of July 19, 2011 was $1,151.72, which results in an initial compensation rate of $767.81. As of July 19, 2011 Claimant had one dependent.
9. Claimant seeks a determination from the commissioner that his July 19, 2011 work-related injury either caused or aggravated his cervical condition, which resulted in the August 14, 2011 cervical discectomy and fusion and subsequent disability.
10. If Claimant is successful in his claim, the parties stipulate that he is entitled to the following benefits: (a) 36.57 weeks of temporary total disability benefits; (b) reasonable and necessary medical benefits related to treatment of his cervical myelopathy, commencing on August 13, 2011 and thereafter, in accordance with Workers’ Compensation Rule 40; (c) an award of costs and attorney fees; and (d) permanent partial disability benefits in an amount to be determined.
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FINDINGS OF FACT:
In addition to the above stipulated facts, I find the following:
11. Claimant worked for Defendant as a short-haul general freight truck driver. His typical routes were regional – from Defendant’s Williston, Vermont facility to Albany, New York and/or Boston, Massachusetts, for example. As of July 19, 2011 Claimant was 60 years old.
12. On Tuesday, July 19, 2011 Claimant was at Defendant’s Williston terminal, preparing his truck for a trip to Springfield, Mass. After hooking his trailer to the tractor, he squatted down and crept underneath the truck to make sure that the locking pin was securely in place. He then turned around and, still in a squatting position, began moving out from under the trailer. As he did so, he hit his head forcefully on the underside of the trailer. The impact drove his neck backwards and dropped him to his knees.
13. Claimant felt dazed. He took a moment to compose himself, then crawled out from under the truck and proceeded inside the office to report the injury to Defendant’s dispatcher. A co-worker gave him a band-aid to apply to the top of his head, which was scraped and bleeding. Other than that, Claimant felt no immediate effects from the accident. He headed out in his truck and completed his run to Springfield and back.
14. When he got home that evening, Claimant told his wife that he had “whacked his head really good.” She applied Neosporin to the scrape and changed the band-aid. Neither of them thought much of the event.
15. Claimant worked his regular shifts for the next several days without incident. Then, as he was making a run to Albany on the following Tuesday evening (July 26th), his left leg became numb and “picky,” as if it had fallen asleep. He stopped, got out and walked around his truck for a few minutes. The feeling went away and he continued on his run.
16. The following night, Claimant was again en route to Albany when the numb and “picky” sensations returned, this time in both legs, from his waist to his feet. As he had the previous evening, Claimant stopped, got out and walked around. This time the sensations persisted somewhat longer, about ten minutes. When they were gone, he resumed driving and completed his run.
17. The next incident occurred two days later, on Friday, July 29th. Claimant was preparing to embark the next day on a long-planned motorcycle trip to South Dakota with two of his friends. He was at the bank, signing travelers’ checks. As he did so, both of his arms began to feel heavy and weak. His hands felt numb and unresponsive, to the point where he had a difficult time holding the pen and completing the task. Again, after walking around for a bit, the symptoms dissipated.
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18. On Saturday morning, July 30th, Claimant and his friends embarked on their motorcycle trip. Claimant was driving a Harley Davidson Super E, a smooth-riding motorcycle equipped with adjustable shock absorbers and a custom seat. Approximately two hours into the ride, he began to feel the numb and “picky” sensations in his legs again, from his waist down to his feet. He stopped and walked around for a few minutes, and as they had on the prior occasions, after a few minutes the feeling went away.
19. Claimant and his friends traveled as far as Buffalo, New York on their first day of travel. Because one of his friends had blown a tire, they were forced to remain there for two days. On Monday afternoon, August 1st, they headed out again. Traveling by way of Interstate 90, and sleeping in hotels at night, they arrived at their South Dakota destination on Wednesday, August 3rd. During this time, Claimant had not experienced any additional symptoms in either his legs or his arms.
20. Claimant and his friends stayed at a campground in South Dakota, sleeping on air mattresses in a tent they pitched themselves. They rode scenic day trips on Thursday and Friday, August 4th and 5th, during which Claimant felt fine. However, on Saturday, August 6th he awoke feeling unwell. His back hurt and his legs felt “picky.” While his friends went touring that day, Claimant remained behind at the campsite.
21. Claimant felt even worse on Sunday, August 7th. His balance was off and he could not walk well. He knew he would be unable to make the return motorcycle trip in this condition, so he called his wife and asked her to come and get him. Claimant’s wife and son left Vermont the following day, arriving in South Dakota on Tuesday, August 9th. In the meantime, Claimant’s condition had continued to deteriorate. His legs and feet were “picky” and numb, his balance was impaired and his friends had to assist him when entering and leaving restaurants. His wife credibly testified that he looked weak, thin and unwell when she saw him. They left for Vermont the next day.
22. Immediately upon returning to Vermont, on Saturday, August 13th Claimant’s wife took him to the hospital emergency room. His presenting complaints included bilateral upper and lower extremity weakness and sensory losses as well as severe balance problems. Cervical spine x-rays documented extensive degenerative changes. More significantly, a cervical MRI study revealed a large central C3-4 disc herniation with cord compression and signal cord changes. Upon evaluation, Dr. Penar, a neurosurgeon, diagnosed cervical spondylotic myelopathy, meaning that the disc herniation was compressing the spinal cord itself rather than just a nerve root. As treatment, on the following day (August 14th) Claimant underwent urgent surgery, during which Dr. Penar excised the herniated disc and fused his cervical spine at the C3-4 level.
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Expert Medical Opinions as to Causation
23. The parties each presented expert testimony as to the causal relationship, if any, between Claimant’s July 19, 2011 work injury and his cervical spondylotic myelopathy.
(a) Dr. Penar
24. Dr. Penar is a board certified neurosurgeon with more than 25 years of experience. He testified on Claimant’s behalf by deposition.
25. In Dr. Penar’s opinion, Claimant’s case presents a “very strong medical story” of an initial disc herniation that occurred when he struck his head on the underside of his truck,1 followed by a progressive cervical myelopathy that developed over the course of the ensuing three weeks. That Claimant did not experience symptoms immediately after hitting his head was not inconsistent with this explanation, as it is not unusual for a patient to report delayed neurological deterioration in such circumstances. Nor is it uncommon for symptoms initially to appear only intermittently, as Claimant’s did in the days leading up to his motorcycle trip. According to Dr. Penar, of greater significance was the manner in which the symptoms indicative of central cord compression developed – first in one leg, then in both legs, and then into both arms as well. Such a progression clearly indicates dysfunction in the cervical spinal cord.
26. Because Claimant already was experiencing both sensory and motor deficits indicative of cervical myelopathy even before embarking on his motorcycle vacation, Dr. Penar discounted the possibility that the trip either caused or aggravated the condition. In Dr. Penar’s words, the mechanism of Claimant’s work injury, during which his neck went into an extension posture, would “easily” explain the large, cohesive “chunk” of disc material that comprised his C3-4 herniation. A “relevant complaint” involving his arms (the episode while signing travelers’ checks) placed his cervical cord compression at a point in time before the motorcycle trip. Emphasizing these elements of Claimant’s clinical history, in Dr. Penar’s opinion to a very high degree of medical certainty the work injury likely caused the myelopathy. I find this analysis compelling.
(b) Dr. Backus
27. Dr. Backus is a board certified specialist in occupational medicine. As such, his training has included a greater focus on causation, epidemiology and statistical analysis than most other specialized areas of medical practice. At Defendant’s request, Dr. Backus reviewed Claimant’s pertinent medical records and deposition testimony.2
1 In the context of a February 2012 letter to Claimant’s attorney, Dr. Penar mistakenly referred to Claimant’s injury as having occurred as a result of hitting his head on the roof of a truck he was driving. Considering the more accurate description he previously had stated in the context of his August 2011 operative report, as well as the one he provided subsequently during his deposition testimony, I find this error inconsequential.
2 Due to unforeseen circumstances, Dr. Backus was unable to personally examine Claimant prior to rendering an opinion as to causation. I find that his opinion is not weakened in any respect as a result, because the evidence relevant to causation concerns Claimant’s condition as of July and August 2011, not more recently.
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28. Dr. Backus concurred with Dr. Penar’s diagnosis of cervical spondylotic myelopathy. He also concurred that the condition developed as a consequence of Claimant’s C3-4 disc herniation. However, he disagreed that the herniation was either caused or aggravated by Claimant’s July 2011 work injury.
29. According to Dr. Backus, there is no medical literature establishing that relatively minor trauma causes discs to herniate. Thus, in his opinion it was more likely that Claimant’s C3-4 disc herniation occurred as part of the natural degenerative process in his cervical spine. As evidenced by cervical spine x-rays taken at the time of his work injury, this process was already quite advanced by then.
30. Nor did Dr. Backus find sufficient evidence from which to conclude, to the required degree of medical certainty, that Claimant’s work injury caused his cervical myelopathy. In his opinion, that condition as well was likely a long-standing, chronic process that had been progressing over a period of years, if not decades.
31. Dr. Backus conceded the possibility that Claimant’s work injury might have been an aggravating factor in hastening the progression of his cervical myelopathy, but did not consider the evidence sufficient to establish this to the required degree of medical certainty. Rather, given the closer temporal relationship between Claimant’s motorcycle trip and his rapidly worsening myelopathy, in Dr. Backus’ opinion the trip was a far more likely cause of any aggravation.
32. I find ample basis in the evidence to discount Dr. Backus’ opinions. First, in concluding that Claimant’s cervical myelopathy had been developing over a period of years Dr. Backus initially recalled that Claimant had reported a twenty-year history of symptoms, when in fact this was not the case. Later, he acknowledged the error and stated that it did not impact his opinion as to causation, but I find that difficult to accept.
33. Second, at the same time that he attributed Claimant’s worsening myelopathy to his motorcycle trip, Dr. Backus admitted that he had little knowledge as to the specifics of that journey, including either the type of motorcycle Claimant rode or the route he traveled. Aside from what he considered to be a strong temporal relationship, he did not specify any other basis for the causal relationship he asserted, such as excessive vibration, rough roads or sleeping on an air mattress rather than in a bed, for example.
34. Third and most important, Dr. Backus’ opinion fails to account for the worsening signs of cervical myelopathy that Claimant had begun to exhibit even before leaving on his vacation. As a result, I find it difficult to discern why in his opinion the evidence is sufficient to establish the motorcycle trip, but not the work injury, as an aggravating factor for his condition.
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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 disputed issue in this claim involves medical causation. Supported by Dr. Penar’s expert opinion, Claimant asserts that his July 2011 work injury either caused or aggravated his cervical disc herniation and resulting myelopathy. Supported by Dr. Backus’ opinion, Defendant asserts that such a causal relationship is possible but not probable, and that Claimant’s motorcycle trip presents a more likely explanation.
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. With primary reliance on the third factor, I conclude here that Dr. Penar’s opinion is the most credible. His analysis as to the causal relationship between Claimant’s work injury and his cervical myelopathy was clear and thorough. Dr. Penar adequately explained why Claimant’s initial post-injury symptoms, while intermittent, clearly indicated a worsening cervical myelopathy in the days prior to his motorcycle trip. Thus, it adequately accounted for the progression of Claimant’s symptoms both before and after his vacation began.
5. In contrast, Dr. Backus failed to explain adequately how the motorcycle trip could be the likely cause of Claimant’s worsening myelopathy notwithstanding that by the time the trip began he already was exhibiting signs of an aggravation. Nor did he identify which specific elements of the trip were likely responsible for the causal relationship he claims resulted. For those reasons, I conclude that his opinion is unpersuasive.
6. I conclude that Claimant has sustained his burden of proving that his cervical disc herniation and resulting myelopathy were caused and/or aggravated by his July 19, 2011 work injury and are therefore compensable. In accordance with the parties’ stipulation, I thus conclude that he is entitled to workers’ compensation benefits as specified in Finding of Fact No. 10, supra.
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7. As Claimant has prevailed on his claim for benefits, he 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 his itemized claim.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total disability benefits for a period of 36.57 weeks, in accordance with 21 V.S.A. §642;
2. Medical benefits covering all reasonable medical services and supplies causally related to treatment of Claimant’s C3-4 disc herniation and cervical myelopathy, including his August 14, 2011 surgery, in accordance with 21 V.S.A. §640(a);
3. Permanent partial disability benefits in an amount to be determined, in accordance with 21 V.S.A. §648;
4. Interest on the above amounts as calculated in accordance with 21 V.S.A. §664; and
5. Costs and attorney fees in amounts to be determined, in accordance with 21 V.S.A. §§664 and 678.
DATED at Montpelier, Vermont this 9th 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.

Dan Wirasnik v. WED Precast, Chester McLellan Trucking and New America Marketing

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

Dan Wirasnik v. WED Precast, Chester McLellan Trucking and New America Marketing
(June 21, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Dan Wirasnik Opinion No. 17-13WC
v. By: Jane Woodruff, Esq.
Hearing Officer
WED Precast, Chester McLellan For: Anne M. Noonan
Trucking and New America Commissioner
Marketing
State File No. Z-52882
RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
APPEARANCES:
James Dingley, Esq., for Claimant
Corina Shaffner-Fegard, Esq., for Defendant ARCH Insurance Co.
Jeffrey Spencer, Esq., for Defendant Cincinnati Insurance Co.
Keith Kasper, Esq., for Defendant New America Marketing, LLC.
ISSUES PRESENTED:
1. Did Defendant Chester McLellan Trucking waive its right to argue that Claimant
suffered a recurrence of his original work injury in May 2007?
2. Does the statute of limitations bar a claim against Defendant New America
Marketing?
EXHIBITS:
Defendant WED Precast’s Exhibit 1: Provencher Affidavit, March 4, 2013
Defendant WED Precast’s Exhibit 2: Dr. Upton Independent Medical Evaluation, January
23, 2008
Defendant WED Precast’s Exhibit 3: Form 2, August 27, 2007
Defendant WED Precast’s Exhibit 4: Interim Order, October 16, 2007
Defendant Wed Precast’s Exhibit 5: Letter from Workers’ Compensation Specialist to
Attorneys Dingley and Shaffner-Fegard, January 7,
2008
Defendant WED Precast’s Exhibit 6: Defendant McLellan Trucking’s Form 27,
December 28, 2007
Defendant WED Precast’s Exhibit 7: Defendant McLellan Trucking’s Form 27, October
2008
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Defendant WED Precast’s Exhibit 8: Letter from Workers’ Compensation Specialist to
Attorneys Dingley, Spencer and Shaffner-Fegard,
November 20, 2008
Defendant WED Precast’s Exhibit 9: Letter from Workers’ Compensation Specialist to
Attorneys Dingley, Spencer and Shaffner-Fegard,
August 9, 2011
Defendant WED Precast’s Exhibit 10: Email from Attorney Shaffner-Fegard to Workers’
Compensation Specialist, August 9, 2011
Defendant WED Precast’s Exhibit 11: Letter from Attorney Dingley to Workers’
Compensation Specialist, July 18, 2012
Defendant WED Precast’s Supplemental
Exhibit 1: Letter from Attorney Spencer to Workers’
Compensation Specialist, April 26, 2011
Defendant WED Precast’s Supplemental
Exhibit 2: Order to Arbitrate, October 10, 2008
Defendant McLellan Trucking’s
Exhibit A: Dr. Wieneke’s report, October 24, 2006
Defendant McLellan Trucking’s
Exhibit B: Defendant WED Precast’s Form 1, May 6, 2005
Defendant McLellan Trucking’s
Exhibit C: Form 22, February 7, 2007
Defendant McLellan Trucking’s
Exhibit D: Taconic Orthopedics’ office note, September 27,
2005
Defendant McLellan Trucking’s
Exhibit E: Defendant WED Precast’s Form 1, October 18,
2006
Defendant McLellan Trucking’s
Exhibit F: Letter from Claims Specialist to Dr. Block, May 26,
2006
Defendant McLellan Trucking’s
Exhibit G: Dr. Wieneke letter to adjuster, April 17, 2007
Defendant McLellan Trucking’s
Exhibit H: Taconic Orthopedics’ office note, July 3, 2007
Defendant McLellan Trucking’s
Exhibit I: Letter from Attorney Dingley to Workers’
Compensation Specialist, September 7, 2007
Defendant McLellan Trucking’s
Exhibit J: Letter from Workers’ Compensation Specialist to
Attorneys Dingley, Spencer and Shaffner-Fegard,
February 14, 2008
Defendant McLellan Trucking’s
Exhibit K: Letter from Workers’ Compensation Specialist to
Attorneys Dingley, Spencer and Shaffner-Fegard,
November 20, 2008
Defendant McLellan Trucking’s
Exhibit L: Claimant’s deposition, March 27, 2013
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FINDINGS OF FACT:
For the purposes of these motions, the following facts are not disputed:
1. Claimant suffered a compensable low back injury on May 6, 2005 while working for
Defendant WED Precast. WED Precast accepted liability and paid workers’
compensation benefits accordingly.
2. Claimant’s employment was seasonal, as he was laid off during the winter months. He
did not return to WED Precast in the spring of 2007. In April 2007, Dr. Wieneke stated
that he had reached an end medical result for his May 2005 work injury. Dr. Wieneke
also stated that he could perform light duty work with no heavy truck driving. It is
unclear from the record what, if any, symptoms Claimant was still experiencing at this
point in time.
3. In May 2007 Claimant took a job with Defendant Chester McLellan Trucking (McLellan)
as a heavy truck driver. In August 2007, while driving his truck Claimant suffered
renewed symptoms in his low back.1 He did not file a claim for benefits against
McLellan and it is unclear from the record how WED Precast became aware of his
symptoms. Subsequently, however, WED Precast filed a Form 2 denial of benefits on the
grounds that Claimant had suffered an aggravation of his May 2005 work injury, such
that if any benefits were due McLellan was the employer responsible for paying them.
4. In response to WED Precast’s Form 2, McLellan filed its own denial of benefits in
September 2007, on the grounds that Claimant’s May 2007 episode of back pain was a
recurrence of his 2005 injury for which WED Precast remained responsible. Following
an informal conference, the Department issued an interim order requiring McLellan to
pay benefits, on the grounds that Claimant had suffered an aggravation, not a recurrence.
5. McLellan next filed a motion to reconsider the Department’s interim order, which was
denied. Subsequently, in December 2007 it filed a Form 27 discontinuance on end
medical result grounds. In January 2008 the Department rejected this action as well.
6. At McLellan’s request, in January 2008 Claimant underwent an independent medical
examination with Dr. Upton. Dr. Upton concluded that Claimant had reached an end
medical result for his most recent injury, which he characterized as an aggravation of a
pre-existing condition. Dr. Upton determined that Claimant had not suffered any
additional permanent impairment, and also that he was capable of light duty work. With
this opinion as support, the Department accepted McLellan’s Form 27 discontinuance.
1 Within days of this injury, Claimant voluntarily terminated his employment with McLellan because he could not
physically continue the work.
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7. At McLellan’s request, in October 2008 the Department issued an order directing
McLellan and WED Precast to arbitration in order to resolve their aggravation/recurrence
dispute. While an arbitrator was chosen, no arbitration ever took place. In an April 2010
letter to both McLellan and WED Precast, the arbitrator closed his file “due to prolonged
inactivity.”
8. In October 2008 Claimant began working for New America Marketing (New America).
His tenure there lasted for only a few months. He left the job because the constant
standing caused significant low back pain.
9. In November 2008 McLellan filed a Form 2 denial of benefits relating to an October 21,
2008 injury. Claimant had not made a claim for benefits; however, he had sought
medical treatment. McLellan argued that any injury he suffered while working for New
America was either a new aggravation or a flare up, for which it was not responsible.
The Department agreed. In a November 2008 letter it directed Claimant to file a Form 5
Notice of Injury and Claim for Compensation with New America if he wished to pursue
benefits. He did not do so.
10. In March 2011 Claimant sought an interim order from the Department to require that one
of his three former employers pay medical benefits on account of his ongoing low back
pain. Following an informal conference, the Department ruled that it could not do so.
Specifically, it found that McLellan’s November 2008 denial remained reasonably
supported, and that the then-current record was insufficient to impose liability on either
WED Precast or New America.
11. In April 2011 McLellan’s attorney wrote a letter to the Department in which he advised
as follows: “As for the issue of arbitration, that should not be read as any waiver or [sic]
our position or somehow that it reverses the Commissioner’s findings in this matter.
[McLellan’s workers’ compensation insurance carrier] could have arbitrated to
potentially receive reimbursement of the benefits paid prior to the Commissioner’s
determination on November 20, 2008, however given the cost benefit it chose not to.”
(Emphasis supplied.)
12. On July 18, 2012 Claimant filed hearing requests against both WED Precast and
McLellan, as well as a Form 5 Notice of Injury and Claim for Compensation against New
America, in which he sought payment of ongoing medical benefits from his former
employers. This marked the first time he had made any formal claim for benefits against
New America.
13. In the course of pre-hearing discovery, Defendants deposed Claimant. Throughout his
deposition, he admitted that his memory for dates was not very accurate. When asked
about his time working for New America, he responded that he thought he had worked
there for three or four months, but used phases such as, “I’m not sure when I started for
them,” and “maybe” it was the spring of 2009 when he finished there.
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14. At one point during his deposition, New America’s attorney asked Claimant to describe
what work injury occurred on August 6, 2009. Claimant responded that that was when he
told his supervisor at New America that he could no longer work there. He finished the
project he was involved with and then left that employment.
15. According to correspondence from the Worker’s’ Compensation Specialist to the
attorneys for Claimant, WED Precast and McLellan, Claimant worked for New America
in October 2008. Assuming that his testimony as to the duration of his employment –
three or four months – was accurate, this would call into question whether the
conversation he recalled having with his supervisor in August 2009 actually occurred on
that date.
16. In August 2010 Claimant began driving a school bus for approximately 26 hours per
week. He continues to hold that position.
DISCUSSION:
1. Summary judgment is appropriate when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Samplid Enterprises, Inc. v. First
Vermont Bank, 165 Vt. 22, 25 (1996). The nonmoving party is entitled to all reasonable
doubts and inferences. State v. Delaney, 157 Vt. 247, 242 (1991); Toys, Inc. v. F.M.
Burlington Co., 155 Vt. 44 (1990). Summary judgment is appropriate only when the
facts in question are clear, undisputed or unrefuted. State v. Realty of Vermont, 137 Vt.
425 (1979). It is unwarranted where the evidence is subject to conflicting interpretations,
regardless of the comparative plausibility of facts offered by either party or the likelihood
that one party or another might prevail at trial. Provost v. Fletcher Allen Health Care,
Inc., 2005 VT 115 at ¶15.
2. In this claim, both Defendant WED Precast and Defendant New America have moved for
summary judgment. WED Precast argues that summary judgment should be granted in
its favor against Defendant McLellan on the grounds that McLellan has waived its right
to argue that Claimant suffered a recurrence of his original work injury in May 2007.
Defendant New America argues that it is entitled to summary judgment because Claimant
failed to file a claim for benefits against it within the applicable statute of limitations.
Claimant did not file responses to either of these motions.
WED Precast’s Motion for Summary Judgment
3. McLellan argues that it did not waive its right to argue that Claimant suffered a
recurrence of his original work injury in the summer of 2007. It points to the fact that it
continued to copy WED Precast on correspondence over the years, as well as verbal
statements it made during informal conferences (in which WED Precast took part), as
affirmative evidence of its intent that WED Precast continue to be a party to any formal
hearing involving the question of liability for benefits due Claimant.
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4. A waiver is the voluntary relinquishment of a known right. To establish it, “there must
be shown an act or an omission on the part of the one charged with the waiver fairly
evidencing an intention permanently to surrender the right in question.” Holden &
Martin Lumber Co. v. Stuart, 118 Vt. 286, 289 (1954). A waiver can be express or
implied, but if it is the latter, “caution must be exercised both in proof and application.
The facts and circumstances relied upon must be unequivocal in character.” Id.
5. The facts here are unequivocal. As its own correspondence shows, McLellan chose not
to pursue arbitration against WED Precast in 2007 because in its analysis the costs
associated with doing so outweighed the potential benefits. It thus acted in such a way as
to voluntarily relinquish its right to establish that Claimant had suffered a recurrence in
August 2007 rather than an aggravation. Arbitration being the avenue that the
Department, in its discretion, had mandated for resolving that dispute, see 21 V.S.A.
§662(e), once McLellan abandoned that path it waived its right to contest responsibility
as against WED Precast. For that reason, WED Precast is entitled to summary judgment
against McLellan.
New America’s Motion for Summary Judgment
6. McLellan argues that a genuine issue of material fact exists as to the date when
Claimant’s episode of low back pain while employed by New America occurred, and for
that reason New America’s request for summary judgment on statute of limitations
grounds must be denied. Specifically, McLellan points to Claimant’s deposition
testimony, in which he asserted that he told his supervisor about his back pain on August
6, 2009. If true, this would place that event well within the three-year statute of
limitations applicable to a work-related injury claim against New America.
7. Clearly the evidence is somewhat conflicting as to when Claimant actually worked for
New America. Whether Claimant’s assertion that he was still working there on August 6,
2009 will stand up to the rigors of cross-examination at formal hearing is not yet at issue.
Rather, for the purposes of ruling on a motion for summary judgment, “all allegations
made in opposition to summary judgment are regarded as true if supported by affidavits
or other evidence.” Town of Victory v. State of Vermont, 174 Vt. 539, 540 (2002).
8. Thus, I conclude that Claimant’s testimony, for purposes of this motion, places the date
of his claimed injury at New America on August 6, 2009. Thus, when he filed his Form
5 Notice of Injury and Claim for Compensation against New America on July 18, 2012,
that filing was within the three year statute of limitations. Therefore, I conclude that New
America’s motion for summary judgment on statute of limitations grounds must be
denied.
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ORDER:
Defendant WED Precast’s Motion for Summary Judgment against Defendant Chester McLellan
Trucking is hereby GRANTED. Defendant New America Marketing’s Motion for Summary
Judgment is hereby DENIED.
Dated at Montpelier, Vermont, this 21st day of June 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.

Paul Baldwin v. Velan Valve (November 19, 2009)

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

Paul Baldwin v. Velan Valve (November 19, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Paul Baldwin Opinion No. 45-09WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Velan Valve
For: Patricia Moulton Powden
Commissioner
State File No. W-04562
OPINION AND ORDER
Hearing held in Montpelier on October 2, 2009
Record closed on October 26, 2009
APPEARANCES:
Ron Fox, Esq., for Claimant
Gregory Boulbol, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant entitled to additional workers’ compensation benefits causally related to his March 15, 2005 compensable injury?
2. If yes, to what benefits is Claimant entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Deposition of Elizabeth McLarney, M.D., September 24, 2009
Claimant’s Exhibit 2: Trash bag (offered for identification only)
Defendant’s Exhibit A: Curriculum vitae, George White, M.D.
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640
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 his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
3. Claimant’s vocational training and experience is as a machinist. In January 2005 he began working for Defendant. His job required him to float from spot to spot, filling in for other employees. On any given day he might run a mill, set up a lathe or operate some other machine.
4. On March 15, 2005 Claimant was setting up a job on a lathe. Due to a programming error, a part got caught in the machine and Claimant had to remove it. As he pulled on the part, which weighed approximately 50 pounds, he injured his lower back. Defendant accepted this injury as compensable and paid workers’ compensation benefits accordingly.
5. As a result of this injury Claimant experienced low back pain radiating into his left leg. He was diagnosed with a disc herniation at L5-S1, which affected the S1 nerve root as well. After conservative measures failed to alleviate his symptoms, Claimant underwent L5-S1 disc surgery in June 2005.
6. Claimant had only temporary pain relief following surgery, and then his symptoms recurred. He was left with chronic, constant low back pain, radiating from his left buttocks down his left leg and into his left ankle. Claimant treated for this pain with narcotic pain medications, including oxycontin and methadone, which he took daily. Later, Claimant began taking oxycodone as well for breakthrough pain.
7. Following an independent medical evaluation with Dr. Fenton in May 2006 Claimant was placed at end medical result and rated with a 13 percent whole person permanent impairment. Defendant paid permanent partial disability benefits in accordance with this rating.
8. In late 2006 Claimant returned to work, briefly first for Hayward Tyler Co. and then for Moscow Mills. Initially Claimant’s job at Moscow Mills was as a machinist; later he was promoted to a position involving purchasing, planning and quoting. Claimant enjoyed his work at Moscow Mills, and because his job responsibilities accommodated his need to change positions he was able to work full-time and full-duty notwithstanding his ongoing low back and left leg symptoms.
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9. As is common in patients with chronic low back pain, Claimant experienced occasional activity-related flare-ups. In November 2006, for example, he strained his back while playing with his children. In February 2007 he did so again after shoveling snow, and in February 2008 he reported increased pain, again after shoveling snow. Following each of these incidents Claimant briefly increased his dosage of narcotic pain medications, after which his symptoms returned to their baseline level.
10. Notably, even when his symptoms were at their baseline, Claimant required fairly high levels of narcotic pain medications to control them. With those medications, however, he was “going along with his life,” working full time and engaging in routine activities of daily living.
11. One of Claimant’s routine household-related duties was to help his wife take care of the trash. Every other day or so Claimant’s wife would leave a full 13-gallon white kitchen trash bag outside the front door of their home. When Claimant came home, he would put the bag in the back of his pickup truck, where it would stay until his next trip to the dump. The weight of each bag varied depending on its contents, but Claimant testified credibly that an “average” trash bag probably weighed about 12 pounds. Claimant testified that he regularly performed this activity with no detrimental effect on his low back or left leg pain.
12. On November 12, 2008 Claimant came home and found a trash bag waiting at the door. As was his practice, he carried the bag to his truck, dropped the tailgate and placed the bag in the truck bed. As he did so he felt a sharp pain in his lower back, radiating into his left buttocks and down his left leg. Claimant left the tailgate as it was, immediately went inside and lay down on the couch.
13. Claimant testified that the location of his pain was exactly as it had been at the time of his original injury, but that it was two to three times more intense. Unlike previous flare-ups, furthermore, this time the increased pain did not respond to additional narcotics and did not resolve back to its baseline. Instead, it has remained steady at the new, more intense level.
14. Claimant testified that the increased pain he has experienced since the trash bag incident has precluded him from engaging in almost any activity. He has not worked since the incident occurred, and spends most of his day lying on his back. His left leg gives out on him at times, so to prevent himself from falling he now walks with a cane. Clearly he no longer is “going along with his life” to the extent that he was previously.
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15. Claimant has undergone two independent medical evaluations since the trash bag incident, one at Defendant’s request with Dr. White, an occupational medicine specialist, and one at his own attorney’s referral with Dr. McLarney, an orthopedic surgeon. The areas of agreement between the two doctors far outnumber the issues upon which their opinions diverge:
• Both doctors agree that Claimant’s 2005 work injury caused his L5-S1 disc to herniate, which left his spine in a weakened condition and his disc more susceptible to future exacerbations. Both further agree that the trash bag incident resulted in an increase in symptoms emanating primarily from the same area of the back. Both agree that but for the fact that Claimant’s back already was weakened in that area, it is unlikely that lifting the bag and placing it in his truck would have been in any way problematic. In that sense, therefore, both agree that the trash bag incident somehow acted upon Claimant’s preexisting condition and thereby became the instigating event for the worsened symptoms that followed.
• Both doctors agree that whether Claimant’s worsened symptoms are due to scar tissue caused by his June 2005 disc surgery or to a new disc herniation is unclear. To clarify the diagnosis, both agree that it would be reasonable for Claimant to undergo an MRI with gadolinium, or contrast dye.
• Both doctors agree that if the MRI reveals the problem to be scar tissue, surgery will be ineffective at relieving Claimant’s symptoms. If the MRI reveals new disc material, both doctors agree that surgery might be an option, although for various reasons Dr. White believes Claimant is not a good surgical candidate.
• Both doctors agree that a multidisciplinary functional restoration or rehabilitation program may present an efficacious treatment route for Claimant. By participating in such a program hopefully Claimant would be able to decrease his dependence on narcotic pain medications, increase his exercise tolerance and improve his overall strength and conditioning level.
• Both doctors agree that Claimant should be able to return to work, at least at a sedentary work capacity. Dr. White believes that Claimant has no structurally limiting condition that would preclude him from doing so immediately. Dr. McLarney believes that it would be unrealistic to expect Claimant to transition directly back to work in his current condition, given his narcotic drug dependency, his deconditioned physical state and his extended time out of work. She is optimistic, however, that he would be able to do so after completing a functional restoration program.
• Both doctors agree that Claimant has not yet reached an end medical result from the trash bag incident.
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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. This claim raises the question to what extent an intervening activity or event can operate to sever the causal link between a work-related accident and the natural consequences that flow from it. As such, its resolution depends more on legal analysis than medical analysis. Medically, there is no dispute that Claimant’s activities on November 12, 2008 – placing a 12-pound trash bag into the back of his truck – caused the low back and left leg symptoms he had experienced since his original 2005 work injury to worsen significantly. The real dispute is as to the legal ramifications of that incident in the context of this claim.
3. This Department has maintained on a fairly consistent basis that when a claimant’s condition worsens, or his or her symptoms flare, after engaging in normal, routine activities of daily living the causal link back to the original work injury remains intact, such that further medical treatment and/or periods of disability remain compensable. See, e.g., Church v. Springfield Hospital, Opinion No. 40-08WC (October 8, 2008) (climbing a single step at home does not sever causal connection); Verchereau v. Meals on Wheels, Opinion No. 20-88WC (1988) (carrying groceries); Correll v. Burlington Office Equipment, Opinion No. 64-94WC (May 1, 1995) (shoveling); but c.f. Signorini v. Northeast Cooperative, Opinion No. 36-04WC (September 1, 2004) (rising from chair; causal link severed due to nine-year gap back to original injury); Read v. W.E. Aubuchon Co., Opinion No. 24-04WC (July 13, 2004) (building rock garden and painting not properly categorized as normal activities of daily living).
4. This policy comports well with the mandate that in order to accomplish its humane purpose Vermont’s Workers’ Compensation Act must be construed liberally in favor of injured workers. Montgomery v. Brinver Corp., 142 Vt. 461 (1983). It also recognizes the practical reality that even injured workers must continue to go about their daily lives despite whatever underlying condition or weakness their work injury has caused. Were employers allowed to use reasonable, routine activities of daily living as a basis for terminating their ongoing responsibility for the natural consequences of a work injury, workers’ compensation would be a short-lived and hollow remedy indeed.
5. With those principles in mind, I find that Claimant’s activities on November 12, 2008 qualify as the type of normal, routine activities of daily living that do not operate to sever the causal link back to the original work injury. Defendant remains responsible, therefore, for all causally related workers’ compensation benefits arising from either event.
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6. As for medical benefits, I find credible Dr. McLarney’s opinion, with which Dr. White essentially concurred, that Claimant should undergo an MRI with gadolinium followed by a surgical consult. Should surgery not be indicated, I find that a multidisciplinary functional restoration program is the appropriate next step.
7. I also find that Claimant has been temporarily totally disabled since November 12, 2008 and that his disability is ongoing currently. In that respect, I accept Dr. McLarney’s opinion that Claimant is unable to transition immediately back to work, but that with the benefit of further treatment hopefully he will be able to do so soon.
8. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $3,217.59 and attorney fees based on a contingent fee of 20% of the recovery, not to exceed $9,000.00, in accordance with Workers’ Compensation Rule 10.1220. An award of costs to a prevailing claimant is mandatory under the statute. To be allowable, however, costs must be reasonable and must comply with the applicable provisions of the medical fee schedule. I find it unreasonable to hold Defendant responsible for Dr. McLarney’s $350.00 no-show fee, and therefore that charge is disallowed. I also note that Dr. McLarney’s $1,050.00 deposition fee appears well in excess of the $300 hourly rate mandated by Workers’ Compensation Rule 40.110. The deposition itself took approximately one hour, and the time spent consulting with Claimant’s attorney either before or after is not recoverable. Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003). This charge is reduced to $600.00. The total costs awarded, therefore, are $2,417.59.
9. As for attorney fees, these lie within the Commissioner’s discretion. I find they are appropriate here, and therefore these are awarded to the extent allowed by Workers’ Compensation Rule 10.1220.
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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 beginning on November 13, 2008 and continuing until Defendant produces sufficient evidence to justify their discontinuance in accordance with Workers’ Compensation Rule 18.0000;
2. Interest on the above amounts computed in accordance with 21 V.S.A. §664;
3. Medical benefits covering all reasonably necessary medical treatment causally related either to Claimant’s March 2005 work injury and/or to the November 12, 2008 incident, specifically including the treatment referred to in Conclusion of Law No. 6 above;
4. Costs totaling $2,417.59 and attorney fees computed in accordance with Workers’ Compensation Rule 10.1220.
DATED at Montpelier, Vermont this 19th day of November 2009.
______________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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