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R. C. v. Consolidated Memorials, Inc. (January 2, 2007)

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R. C. v. Consolidated Memorials, Inc. (January 2, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
R. C. Opinion No. 54-06WC
By: Margaret A. Mangan
v. Hearing Officer
Consolidated Memorials, Inc. For: Patricia Moulton Powden
Commissioner
State File No. W-03620
Hearing held in Montpelier on September 12, 2006
Record closed on October 17, 2006
APPEARANCES:
Heidi S. Groff Esq., for the Claimant
Joseph M. Lorman Esq., for the Defendant
ISSUES:
1. Did the Claimant sustain an April 2004 work injury that caused an infection, which led to the amputation of both legs above the ankles, resulting in permanent total disability?
2. Is the Claimant entitled to thirteen weeks of temporary total disability benefits?
3. If entitled to a workers’ compensation award, may the Claimant receive a lump sum payment of benefits?
EXHIBITS:
Joint Exhibit No. I: Medical Records on CD
Claimant’s 1: C.V. of Ernest Atlas, M.D.
Defendant’s A: C.V. of Philip Carling, M.D.
FINDINGS OF FACT:
1. The Claimant was an employee within the meaning of the Vermont Workers’ Compensation Act (Act) for all relevant periods.
2. The Defendant was an employer within the meaning of the Act for all relevant time periods.
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3. By April 2004, the Claimant was working roughly sixty hours per week as the General Manager of Consolidated Memorials.
4. As General Manager, the Claimant chipped granite with a chisel and handset, used a saw, drove trucks, placed orders for materials, and performed other similar tasks.
5. The Claimant wore gloves to perform these tasks only when it was cold.
6. The Claimant always had cuts on his hands and arms from working with sharp granite.
7. On April 5, 2004, the Claimant cut and scraped his hands and arms while chipping granite with a chisel and handset. Some of these injuries bled. The Claimant was familiar with the first aid kit and used antibiotic ointment and bandages.
8. On April 9, 2004, the Claimant was performing his duties as General Manager. While at work, the Claimant suddenly became nauseated and began vomiting.
9. Later that day, the Claimant’s wife came home to find the Claimant lying on the couch, shivering and wrapped in blankets. The Claimant was vomiting with chest pain and diarrhea.
10. That evening, the Claimant’s was treated at the Central Vermont Hospital’s Emergency room, where he was diagnosed with influenza and pulled chest muscles. Upon release, the Claimant was given medication and was instructed to return if his symptoms worsened.
11. The Claimant’s symptoms continued throughout the night and into the following morning.
12. On April 10, 2004, the Claimant continued to experience nausea, vomiting, diarrhea, and chest pain. Additionally, the abrasions on the Claimant’s hands and arms began to feel very itchy. The Claimant requested that his wife scratch these abrasions.
13. Upon scratching the Claimant’s hands and arms, the Claimant’s wife noticed that a cut on the Claimant’s right pinky finger had opened and was exuding puss. She treated this wound with peroxide, triple antibiotic ointment, and a band-aid. She also noticed other scratches and abrasions on the Claimant’s hands and arms.
14. At approximately 10 PM on April 10, 2004, the Claimant was admitted to the Central Vermont Hospital because of his worrisome and persistent symptoms.
15. In the early morning hours on April 11, 2004 the Claimant’s vital signs continued dropping. As a result, he was admitted to the Intensive Care Unit and given intravenous fluids.
16. The April 11, 2004 medical records show that the Claimant had multiple sores on his hands from work related trauma. These records also note that one of the sores “had a
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pustule that was I&D’d by the wife yesterday.” The records then state that the sores appeared to be healing with no active discharge.
17. A stool sample taken that day at the Central Vermont Hospital tested positive for a few colonies of Group A Streptococcus.
18. Later that morning, the Claimant’s condition continued to worsen until he was in a state of septic shock. At this time he was transported by helicopter to Dartmouth-Hitchcock Medical Center (DMHC).
19. The Claimant became comatose as a result of his severe illness.
20. Also on April 11, 2004, a DMHC CT scan found that the Claimant’s terminal ileum, cecum, and ascending colon were moderately thick-walled. The differential diagnosis of this condition included “typhilitis, Crohn’s disease, lymphoma, infectious etiology such as Giardia; ischemia less likely without supporting clinical evidence such as acidemia.”
21. On April 12, 2004, a paronychia, infection in the tissue surrounding the nail bed, on the Claimant’s right thumb tested positive for Group A Streptococcus.
22. By April 13, 2004, the Group A Streptococcus was found in the Claimant’s bloodstream and urine.
23. DHMC repeatedly tested the Claimant’s stool for the presence of white blood cells. These tests were all negative.
24. The doctors at DHMC found inflamed and necrotic tissue along the Claimant’s left chest wall.
25. As a result of complications from the septic shock, the Claimant’s lower extremities became gangrenous. This condition led to bilateral, below the knee amputations of the Claimant’s legs.
26. Beginning on April 12, 2004, the Claimant was out of work for a total of thirteen weeks as a result of this experience.
27. On July 12, 2004, the Claimant returned to work as a General Manager at Consolidated Memorials.
28. The Claimant is requesting TTD compensation for the recovery period from April 12, 2004 through July 11, 2004.
29. The Claimant is requesting attorney fees and costs. Claimant’s Counsel has a 25% Fee Agreement with the Claimant and an approved Attorney Lien. The Claimant has included an itemized list of litigation costs totaling $5,762.54.
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Medical Testimony
Ernest Atlas, M.D.
30. Dr. Atlas is an expert in infectious diseases and has been practicing for over thirty years. He regularly consults in infectious disease cases and has personally treated over a dozen cases involving Group A Streptococcus.
31. After reviewing the Claimant’s medical records, the Claimant’s wife’s deposition testimony, and interviewing the Claimant’s wife, Dr. Atlas opined that the Group A Streptococcus entered the Claimant’s body via the work related cuts and abrasions.
32. From there, Dr. Atlas believes that the bacteria spread through the Claimant’s bloodstream to the deep tissue of the left chest wall, where it produced a necrotizing fasciitis and septic shock. This condition caused blood clotting in the small vessels of the Claimant’s legs and gangrene. The septic shock also resulted in decreased blood flow and the need for vasoconstrictor medications. As a result of these factors, below the knee amputations of the Claimant’s legs were required.
33. Dr. Atlas explained that a superficial scratch or abrasion is likely to heal quickly once pus is exuded, even if this was the initial source of the Group A Streptococcus infection.
34. Dr. Atlas stated that the vast majority of Group A Streptococcus infections originate from breaks in the skin. He also stated that once this infection enters the bloodstream, the bacteria can circulate throughout the body.
35. While not impossible, in over thirty years of infectious disease practice Dr. Atlas had never seen, read about, or heard of Group A Streptococcus entering the body through the bowel.
36. Dr. Atlas opined that if this type of infection were to begin in the bowel then the stool would have had heavy growth of Group A Streptococcus and a high white blood cell count.
Philip C. Carling, M.D.
37. Dr. Carling has specialized in infectious disease medicine for over thirty years. However, he does not have first hand experience treating patients with Group A Streptococcus resulting in necrotizing fasciitis.
38. After reviewing the Claimant’s complete medical records, witness depositions, and medical reports, Dr. Carling opined that the work related scratches and abrasions were not the most likely source of the Group A Streptococcus.
39. Rather, Dr. Carling believed that the primary infection developed in the Claimant’s terminal ileum and ascending colon. This infection led to overwhelming streptococcal sepsis, organ failure, and the need for a bilateral leg amputation.
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40. Dr. Carling believed that the presence of a “few” colonies of Group A Strep showed that the bowel was the primary site of the infection.
41. Dr. Carling opined that the Claimant’s right thumb tested positive for Group A Streptococcus because the thumb came in contact with infected stool.
42. Dr. Carling agreed that gastrointestinal symptoms can be a result of the sepsis, no matter where the source of the infection is.
43. Dr. Carling could not recall any examples of cases, or any literature where Group A Streptococcus entered the body via the bowel.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1962). The claimant must establish by sufficient credible evidence the character and extent of the injury and disability as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984).
2. To qualify for workers’ compensation benefits, the personal injury must arise out of and in the course of employment. See 21 V.S.A. § 618 (a)(1).
3. In Vermont, a worker who is injured at work may collect temporary disability benefits depending upon his actual capacity to work during the period that he is healing, until such time as he or she reaches maximum medical improvement. Hepburn v. Concrete Professionals, Inc./Traveler’s Insurance Co., Opinion No. 16-03WC (2003).; 21 V.S.A § 642.
4. A Claimant is entitled to temporary total disability benefits under 21 V.S.A. § 642, while either: (1) in the healing period and not yet at a maximum medical improvement, Orvis v. Hutchins, 123 Vt. 18 (1962), or (2) unable as a result of the injury either to resume the former occupation or to procure remunerative employment at a different occupation suited to the impaired capacity. Roller v. Warren, 98 Vt. 514 (1925); Votra v. Mack Molding, Inc. Opinion No. 44-02WC (2002).
5. Under 21 V.S.A. § 644(a)(2), a Claimant is entitled to at least 330 weeks of permanent total disability if the work related injury causes the loss of both feet at or above the ankle.
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6. 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 proved must be the more probable hypothesis. Burton Holden & Martin Lumber Co., 112 Vt. 17 1941. Where the causal connection between an accident and an injury is obscure, and a layperson would have no well-grounded opinion as to causation, expert medical testimony is necessary. J.G. v. Eden Park Nursing Home, Opinion No. 52-05WC (2005) (citing Lapan v. Berno’s Inc., 137 Vt. 393 (1979)).
7. When qualified medical expert opinions are in conflict, this Department has traditionally examined the following criteria: 1) the length of time the physician has provided care to the claimant; 2) the physician’s qualifications, including the degree of professional training and experience; 3) the objective support for the opinion; and 4) the comprehensiveness of the respective examinations, including whether the expert had all the relevant records. J.C. v. Richburg Builders. Opinion No. 37-06WC (2006). (citing Miller v. Cornwall Orchards, Opinion No. 20-97WC (1997); Gardner v. Grand Union, Opinion No. 24-97WC (1997)).
8. The medical experts in this case were both highly qualified infectious disease experts. Neither physician provided treatment to the Claimant. Rather, both doctors relied on the Claimant’s medical records, depositions, and their own extensive training and experience when rendering their expert medical opinions. As a result, the fact that Dr. Atlas has personal experience in treating patients with similar Group A Streptococcal infections lends greater weight to his opinion.
9. Dr. Atlas testified that Group A Streptococcal bacteria most often enters the body via a break in the skin. The Claimant had multiple work related cuts and abrasions on his arms and hands at the onset of his illness. The Claimant’s medical records document signs of infection on two of these wounds, one testing positive for the infectious bacterium.
10. By contrast, neither expert could recall any case they had ever worked on, read about, or even heard of where the bowel was the point of origin for a Group A Strep infection. Furthermore, while a CT scan showed moderate thickening of the bowel wall, none of the DMHC physicians connected this finding with the Claimant’s sepsis or took further action.
11. Furthermore, Dr. Atlas stated that if the bowel were the primary infection site then the Claimant’s stool would have been teeming with white blood cells and bacterial colonies. Instead, white blood cells were absent each time the Claimant’s stool was tested. Rather than finding a heavy concentration of bacterial colonies, the stool contained only a few colonies that were likely deposited via the Claimant’s bloodstream.
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12. Hence, the April 2004 work related injuries sustained by the Claimant caused the above infection and complications leading to a bilateral leg amputation. This is a scheduled injury under 21 V.S.A. § 644(a)(2); therefore, the Claimant is entitled to at least 330 weeks of permanent total disability.
13. Furthermore, from April 12, 2004 through July 11, 2004, the Claimant was recovering from complications resulting from his work related injury, unable to work and had not yet reached medical end result. As such, the Claimant is also entitled to TTD benefits for this thirteen-week period.
14. 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.
Lump Sum Payment
15. In 2000, the legislature amended 21 V.S.A. § 652(b) to permit a Claimant to request an award payment in one lump sum. Sanz v. Douglas Collins Const., ¶ 6, 2006 Vt. 102. The Commissioner will grant this request if it is in the best interest of the Claimant or his family. Id.
16. The Department considers the following factors when determining whether a lump sum payment is in the best interest of a claimant. The claimant and/or the claimant’s household receives a regular source of income aside from any workers’ compensation benefit, the lump sum payment is intended to hasten or improve claimant’s prospects of returning to gainful employment or the lump sum payment is intended to hasten or improve claimant’s recovery or rehabilitation; the claimant presents other evidence that the lump sum award is in their best interests. Patch v. H.P. Cummings Const., Opinion No. 49-02WC (2002); Rule 19.5000.
17. A lump sum payment will not be awarded if: the award was based upon a hearing decision for which an appeal has been filed and the employer or insurer objects to the payment of the lump sum; or the claimant is best served by receipt of periodic income benefits; or the payment is intended to pay everyday living expenses; or the lump sum payment is intended to pay past debts. Id.
18. In the present case, this Claimant has returned to work, earning regular income outside of any workers’ compensation award. Therefore, the Claimant need not rely on the periodic payment of benefits for everyday expenses. As such, the Department recognizes that a lump sum award is in the best interest of this Claimant.
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ORDER:
THEREFORE, based on the above Findings of Fact and Conclusions of Law, the Claimant’s claim is compensible and the Defendant is ORDERED to pay:
1. Related Medical Benefits;
2. TTD benefits from April 12, 2004 through July 11, 2004;
3. A lump sum payment of PTD, pursuant to 21 V.S.A. § 644(a)(2), for at least 330 weeks;
4. Statutory interest from the date the ordered benefits should have been paid had this case been accepted, pursuant to 21 V.S.A. §664;
5. Attorney fees of 20% of the total award or $9,000, whichever is less.
Dated at Montpelier, Vermont this ____ day of December 2006.
___________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

M. D. v. DEW Construction (August 28, 2007)

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

M. D. v. DEW Construction (August 28, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
M. D. Opinion No. 24-07WC
By: Jane Dimotsis, Hearing Officer
v. Renee Mobbs, Law Clerk
DEW Construction For: Patricia Moulton Powden
Commissioner
State File No. X-06341
AMENDED OPINION AND ORDER
Corrected Date on last page, paragraph 9, to May 9, 2007.
Hearing held in Montpelier on June 25, 2007.
Record closed on July 13, 2007.
APPEARANCES:
Claimant, pro se
William Blake, Esq., for Defendant
ISSUES:
1. Whether Defendant must pay Claimant temporary total disability benefits from the time Claimant was laid off by a subsequent employer to the time Claimant resumed employment with a third employer.
2. Whether Claimant is entitled to Vocational Rehabilitation.
EXHIBITS:
Claimant’s Exhibits
Claimant’s Exhibit 1: 4/26/07– 5/16/07 Medical records from Dr. Macy and Lee Morse, PT
Claimant’s Exhibit 2: 2/19/07 Functional Capacity Evaluation by Joe Barry, OT
Claimant’s Exhibit 3: 5/18/07 IME Letter and Evaluation Questionnaire from Dr. Davignon
Defendant’s Exhibits
Defendant’s Exhibit 1: 7/06 DEW Newsletter
Defendant’s Exhibit 2: 1/11/07 Email from Claimant to Specialist Biron
Defendant’s Exhibit 3: 9/12/06 Transcription of phone call between Claimant and Peter Wells
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Defendant’s Exhibit 4: 9/12/06 Transcription of phone call between Claimant and Peter Wells
Defendant’s Exhibit 5: 4/20/07 Letter to Claimant from John May, VR Counselor
FINDINGS OF FACT:
1. From April 2005 to September 12, 2006, Claimant was an employee of Defendant within the meaning of the Vermont Workers’ Compensation Act (the “Act”).
2. From April 2005 to September 12, 2006, Defendant was Claimant’s employer within the meaning of the Act.
3. On May 31, 2006, Claimant suffered a work-related injury while tearing down a concrete block wall. Claimant was using a cart to remove concrete from the site of the wall; he injured his left shoulder when he pulled on the concrete-filled cart while it was still chocked.
4. Defendant filed a Form 1 on June 1, 2006.
5. A physical therapist assessed Claimant with a light duty work capacity on June 1, 2006. Claimant returned to work June 2, 2006.
6. Defendant provided Claimant with light duty work from June 2, 2006 to June 19, 2006, when Dr. Winokur diagnosed Claimant with a left rotator cuff tear. Dr. Winokur scheduled Claimant for an MRI on June 28, 2006. She also referred Claimant to physical therapy and extended his light duty work capacity for 4 more weeks.
7. Claimant continued to perform light duty work until the week of July 10, 2006, when he was out of work for the birth of his son.
8. On July 17, 2006, Dr. Macy performed arthroscopic surgery on Claimant to repair his left rotator cuff tear. On July 24, 2006, Claimant was referred back to physical therapy.
9. Defendant paid Claimant temporary total disability benefits from July 17, 2006 to August 22, 2006. On August 22, 2006, at Claimant’s bidding, Dr. Macy returned Claimant to work on a light duty basis until further follow-up. Claimant returned to work on August 23, 2006.
10. On September 5, 2006, Dr. Macy extended Claimant’s light duty work capacity for 8 more weeks.
11. Defendant provided Claimant with light duty work from August 23, 2006 to September 12, 2006.
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12. On September 12, 2006, Claimant contacted Peter Wells, Defendant’s General Superintendent, regarding the characterization of his out of work time for the week of July 10, 2006. During this conversation, Claimant informed Mr. Wells that Walker Construction had offered him a job. Claimant explained that Walker Construction would pay him $6 more per hour and provide him with a company truck. When Claimant asked Mr. Wells if he would make a counter offer to match or raise Walker Construction’s offer, Mr. Wells stated that the Defendant was not in a position to make a counter offer. Claimant then gave Mr. Wells his two weeks notice. Later on that day, Mr. Wells called Claimant to verify what Claimant’s last day would be. Claimant confirmed that since he would be starting with Walker Construction on September 25, 2006, his last day with Defendant would be September 22, 2006. Nevertheless, after the latter phone call Defendant decided to reject Claimant’s two weeks notice and Claimant was let go that afternoon.
13. Defendant voluntarily paid Claimant temporary total disability benefits for the week of September 18, 2006 to September 22, 2006.
14. Claimant began working for Walker Construction September 25, 2006; however, Claimant was laid off for lack of work on approximately October 14, 2006. Although Claimant testified that his work at Walker Construction was within his light duty restrictions, Claimant also testified that he never told Walker Construction about his left shoulder injury and subsequent surgery.
15. On November 7, 2006, Dr. Macy indicated that Claimant could return to medium duty work or get a Functional Capacity Evaluation to better determine his work restrictions. Dr. Macy stated that Claimant was not at medical end result.
16. On November 13, 2006, Claimant sought reinstatement of his temporary total disability benefits.
17. Defendant filed a Form 2 on November 29, 2006. Defendant denied Claimant’s request for temporary total disability benefits because Claimant had voluntarily terminated his employment with Defendant in order to work for Walker Construction. Defendant further argued that Claimant’s layoff from Walker Construction was for reasons unrelated to his original work injury.
18. On December 7, 2006, Specialist Luanne Biron denied reinstatement of temporary total disability benefits for lack of evidence. She requested that Claimant submit documentation showing that he had performed a reasonably diligent job search but that he was unable to secure work because of his work restrictions. Specialist Biron also noted that Claimant was receiving unemployment benefits, and that if he were found entitled to reinstatement of temporary total disability benefits he would need to pay back any unemployment benefits he had received.
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19. On December 7, 2006, Claimant faxed to the Department a number of job inquiries he had emailed to potential employers after being laid off by Walker Construction. Claimant testified that he did not inform the potential employers of his work injury. These job inquiries were not entered into evidence at the formal hearing.
20. Despite Claimant’s job inquiries, Defendant continued to oppose reinstatement of temporary total disability benefits because Claimant had been able to obtain employment with Walker Construction while under more limiting work restrictions (light duty) than he was under at the time he made the post-layoff inquiries (medium duty). Further, Defendant noted that the potential employers’ responses to Claimant’s inquiries pointed not to Claimant’s work injury but to his lack of qualifications as the reason for their refusal.
21. On January 7, 2007, Specialist Biron responded to the parties and indicated that the available evidence was not reasonably sufficient to reinstate temporary total disability benefits.
22. A Functional Capacity Evaluation (“FCE”) was performed February 19, 2007. Occupational Therapist Joe Barry found Claimant to have a medium work capacity, except for work at shoulder level and above. Mr. Barry also recommended that Claimant continue physical therapy.
23. On April 20, 2007, Claimant was found not entitled to Vocational Rehabilitation (“VR”). VR Counselor John May noted that, although Claimant had not returned to work since he was laid off by Walker Construction, he was employed as a supervisor in a physically suitable job after his injury and surgery. In addition, Mr. May noted that Claimant had experience in surveying, drafting, and quality control, all jobs that were consistent with his physical abilities (medium duty). Therefore, Mr. May found that, based on Claimant’s ability to perform suitable employment for which he had previous training and experience, he was not entitled to VR.
24. On April 26, 2007, a physical therapy note indicated that although Claimant’s left shoulder did not feel 100% better, he was able to play baseball. A May 7, 2007 physical therapy note again indicated that Claimant could play baseball, but that he could not yet play golf.
25. On May 7, 2007, Dr. Macy indicated that Claimant could return to work May 16, 2007, with restrictions as outlined in the FCE. On May 9, 2007, Dr. Macy stated that while Claimant was still experiencing pain, he was able to play softball. Further, Dr. Macy placed Claimant at medical end result and recommended an Independent Medical Evaluation (“IME”). Finally, Dr. Macy indicated that Claimant could return to work as soon as the next day so long as the FCE were complied with.
26. A May 15, 2007 physical therapy note stated that Claimant woke up that morning with severe pain in his left shoulder. Claimant denied that any trauma caused the pain; he suspected that he re-injured his shoulder in his sleep.
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27. Claimant saw Dr. Macy on May 16, 2007. Dr. Macy’s note indicated that Claimant re-injured himself lifting something. Although Dr. Macy had stated in his last note that Claimant could return to work, he placed Claimant back out of work until June 1, 2007 due to the re-injury. Dr. Macy also recommended more physical therapy.
28. On May 19, 2007, Dr. Davignon sent Claimant a letter scheduling an IME on permanency pursuant to Dr. Macy’s determination of medical end result. However, Claimant did not attend the IME scheduled for June 5, 2007 due to the re-injury of his shoulder.
29. On May 27, 2007, Claimant ruptured his Achilles tendon while playing softball.
30. Claimant was unemployed from October 2006, when he was laid off by Walker Construction, to May 29, 2007, when he began working for the State of Vermont.
31. Claimant collected 26 weeks of unemployment benefits from the time he was laid off by Walker Construction to the time he was hired by the State of Vermont.
32. Defendant has paid and continues to pay all medicals related to Claimant’s original work injury.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the Claimant has the burden of establishing all facts essential to supporting the claim. Goodwin v. Fairbanks, Morse and Co., 123 Vt. 161 (1963). The Claimant must establish with 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). The Claimant must create 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 injury, and the inference from the facts proven must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
2. Claimant seeks temporary total disability benefits from the time he was laid off by Walker Construction to the time he was hired by the State of Vermont. He argues that he was unable to get a job at the wage he deserves because of his injury. Claimant also contests Dr. Macy’s opinion that he reached medical end result on May 9, 2007. Further, Claimant disagrees with Dr. Macy’s May 16, 2007 note, which states that Claimant re-injured his left shoulder “lifting something.” Finally, Claimant opposes the VR Counselor’s determination that he is not entitled to VR.
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3. Defendant argues that Claimant is not entitled to further temporary total disability benefits because he voluntarily terminated his employment with Defendant. In the alternative, Defendant argues that Claimant is not entitled to temporary total disability benefits after May 9, 2007, when Claimant reached medical end result, May 16, 2007, when Claimant re-injured his left shoulder, May 27, 2007, when Claimant injured his Achilles tendon, or May 29, 2007, when Claimant returned to work with the State of Vermont. Defendant also avers that Claimant cannot be found entitled to VR because he has not offered an expert opinion in opposition to the VR Counselor’s findings.
Temporary Total Disability Benefits; Voluntary Quit
4. In Andrew v. Johnson Controls, Opinion No. 3-93WC, Conclusions of Law at ¶ 4, the Department adopted the rule that “a claimant who voluntarily quits [his or her] job for reasons having nothing to do with the injury is not entitled to temporary total disability compensation.” However, the Department noted an exception to the general rule where the employee “begins a diligent search for employment” but “the employee’s work-related disability is the cause of the employee’s inability to find or hold new employment.” Id. at ¶ 5. Therefore, the Department has held that a claimant who voluntarily removes him or herself from the work force for reasons unrelated to the work injury has the burden of demonstrating: (i) that he or she suffered a work injury; (ii) that he or she made a reasonably diligent attempt to return to the work force; and (iii) that he or she was unable to return to the work force, or returned at a reduced wage, because of the work injury. See id. at ¶ 6. However, an employee’s voluntary quit does not relieve the defendant from its obligation to pay for all reasonably necessary medical treatment. Id. at ¶¶ 2, 9.
5. In Andrew, the Claimant was denied temporary total disability benefits because after voluntarily leaving her position with her employer, she did not make a reasonably diligent effort to return to the work force. Id. at ¶ 7. The Department found that “[a]pplying for only one position is not sufficient.” Id.
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6. In Pfalzer v. Pollution Solutions of Vermont, Opinion No. 23-01WC, Conclusions of Law at ¶¶ 5 and 6, the Department restated the Andrew rule and exception. As in Andrew, the Claimant in Pfalzer was denied temporary total disability benefits for two of his out of work periods. However, unlike the Andrew Claimant, who failed to satisfy the second prong of the exception, the Pfalzer Claimant was denied temporary total disability benefits because he failed to satisfy the third prong of the exception. That is, the Claimant in Pfalzer could not show that he was unable to find work because of his original work injury. Id. at ¶¶ 8, 11. The Department noted that the “[C]laimant was able to eventually find a better paying job within a year while suffering no recorded (or claimed) change in his… condition.” Id. at ¶ 8. Further:
[D]efendant’s argument against awarding [C]laimant’s temporary total disability benefits after his lay-off… is persuasive. Claimant became unemployed… because of an economic downturn… .Thus his unemployment is the result of an economically related lay-off and has nothing to do with his [condition]. Furthermore, [C]laimant has not established that he was unable to find work after [his lay-off] because of his… condition.
7. It is clear that Claimant voluntarily terminated his employment with Defendant because Walker Construction was going to pay him a higher wage and provide him with a company truck. Thus, under the Andrew rule, Claimant is not entitled to temporary total disability compensation.
8. Nonetheless, Claimant did suffer a work injury on May 31, 2006 while working for Defendant. Therefore, the first prong of the Andrew exception is satisfied. Moreover, although Claimant did not enter his job inquiries into the formal record, the Department has considered them and finds them to be evidence of a reasonably diligent attempt to return to the work force in satisfaction of the second prong of the Andrew exception. In fact, unlike the Andrew Claimant, who only applied for one position, Claimant inquired into and applied for a number of positions. However, Claimant has failed to show that he was unable to return to the work force because of his work injury. Like the Pfalzer Claimant, the Claimant in this case successfully returned to work after voluntarily terminating his employment with Defendant. Indeed, Claimant’s post-injury employment at Walker Construction was more favorable to Claimant than his employment with Defendant. Also, Claimant never reported his prior work injury and surgery to Walker Construction; thus, Claimant’s layoff could not have been related to his left shoulder condition. Finally, Claimant did not tell the potential employers he contacted after being laid off by Walker Construction about his work injury. Therefore, their reasons for not hiring Claimant could not have had anything to do with his shoulder condition. Thus, Claimant has failed to satisfy the third prong of the Andrew exception and is not entitled to temporary total disability benefits after his layoff from Walker Construction. However, Defendant is not relieved of its obligation to pay for all reasonably necessary medical treatment related to Claimant’s left shoulder injury.
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9. The Department also finds that Claimant reached medical end result for his original work injury on May 9, 2007. Indeed, although Claimant disputes Dr. Macy’s determination, the Claimant has failed to introduce a medical opinion counter to Dr. Macy’s.
Vocational Rehabilitation
10. The Department finds that Claimant is not entitled to Vocational Rehabilitation because the Claimant was employed as a supervisor in a physically suitable job after his injury and surgery and is able to perform suitable employment for which he has previous training and experience. Indeed, although the Claimant disputes VR Counselor John May’s April 20, 2007 determination that he is not entitled to VR, the Claimant has failed to introduce a VR opinion counter to Mr. May’s.
ORDER:
Based on the foregoing finds and conclusions:
1. Claimant’s claim for temporary total disability benefits from the time he was laid off by Walker Construction to the time he resumed employment with the State of Vermont is DENIED. However, Defendant shall continue to pay for all reasonably necessary medical treatment related to Claimant’s work-related left shoulder injury.
2. Claimant’s claim for Vocational Rehabilitation is DENIED.
DATED at Montpelier, Vermont this 28th day of August 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.

Lorianne Lewia v. Stowe Motel (July 25, 2011)

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Lorianne Lewia v. Stowe Motel (July 25, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Lorieann Lewia Opinion No. 19-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Stowe Motel
For: Anne M. Noonan
Commissioner
State File No. BB-55471
OPINION AND ORDER
Hearing held in Montpelier, Vermont on March 17, 2011
Record closed on April 5, 2011
APPEARANCES:
Vincent Illuzzi, Esq., for Claimant
Jason Ferreira, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant entitled to temporary total disability benefits for the period from June 18, 2010 through August 6, 2010?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Various work capabilities forms
Claimant’s Exhibit 2: Letter from Scott Ward, April 2, 2010
Claimant’s Exhibit 3: Curriculum vitae, W. Thomas Turek, D.C.
Defendant’s Exhibit 1: Curriculum vitae, Verne Backus, M.D.
Defendant’s Exhibit 2: Letter from Scott Ward, May 27, 2010
Defendant’s Exhibit 3: Letter from Attorney Illuzzi, June 2, 2010
Defendant’s Exhibit 4: Letter from Scott Ward, June 8, 2010
Defendant’s Exhibit 5: Form 27, approved June 18, 2010
Defendant’s Exhibit 6: Letter from Anne Coutermarsh, August 30, 2010
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
3. Claimant worked for Defendant as a housekeeper. On November 5, 2009 she was moving lawn furniture as part of the fall cleanup process. As she bent down to pick up a heavy hammock, she felt a pop in her left shoulder, and then a stabbing, burning pain. Claimant stopped working and immediately sought medical treatment.
4. Defendant accepted Claimant’s injury as compensable and began paying workers’ compensation benefits accordingly.
Claimant’s Prior Medical History
5. Claimant’s prior medical history includes a left upper extremity injury sustained in 1998 while working for a different employer. Claimant underwent two elbow surgeries, but continued to complain of disabling pain for years thereafter. The medical records reflect that during this period Claimant demonstrated anger towards her surgeon and poor insight into her condition. She held her arm in a significantly guarded position and was unwilling to participate in treatment options that were likely to increase her pain temporarily, such as functional restoration.
6. Claimant did not return to work after her 1998 injury until September 2004. At that point her primary care physician cleared her to work with a restriction against lifting in excess of 20 pounds with her left arm. Claimant worked for a time as a licensed nursing assistant. Later she went to work for Defendant.
7. Although originally left-handed, Claimant testified that the restriction against lifting with her left arm was not problematic. She taught herself to do more things with her right hand and now considers herself to be right-handed. Claimant described her right arm as being “pretty strong and rugged” now. I find this testimony to be credible.
Claimant’s Medical Course Since November 2009
8. After her November 2009 injury Claimant treated conservatively, first with Dr. James, and later with both Maria Calderwood, a family nurse practitioner, and Dr. Carr, an orthopedic surgeon. Her response to treatment has been poor, and in many respects it mirrors her experience following her 1998 injury. Claimant complains of exquisite pain throughout her shoulder joint, in any motion, in any position and at all times. She holds her left arm in an immobile position, with her left shoulder elevated, her neck flexed and her arm folded close across her body. She manages her pain with narcotic medicines.
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9. Both Dr. Carr and Dr. Shafritz, another orthopedic surgeon with whom Claimant consulted, have determined that there is no surgical remedy for her injury. The etiology of her current symptoms is unclear. As with her 1998 injury, there likely is a myofascial pain component, which is complicated by Claimant’s high pain perception and tendency for pain magnification. Diagnostic testing has ruled out adhesive capsulitis.
Claimant’s Work Capacity
10. Claimant has not returned to work since her November 2009 injury. In a January 25, 2010 “To Whom It May Concern” letter, Dr. Carr stated that she would be unable to work as a housekeeper indefinitely. Dr. Carr has reiterated this opinion on three occasions since then, most recently in August 2010. He has done so, however, merely by checking the appropriate box for “no work capability” on standardized workers’ compensation medical forms. Without further explanation as to the basis for his opinions, I find these determinations to be of little value.1
11. At Defendant’s request, Claimant underwent two independent medical evaluations with Dr. Backus, the first in March 2010 and the second in January 2011. Dr. Backus is board certified in occupational medicine. He is experienced at treating patients with chronic pain, particularly with respect to return to work issues.
12. Based both on his physical exam findings and his review of Claimant’s medical records, Dr. Backus concluded that Claimant is capable of performing full-time sedentary to light duty work. In reaching this conclusion, Dr. Backus specifically noted that after her 1998 injury Claimant suffered from chronic pain to much the same extent that she does now, but still was able to return to work so long as she limited the use of her left arm. Dr. Backus recommended that Claimant abide by the same restriction now.
13. According to Dr. Backus, aside from the limitation involving her left arm there are no other medical barriers that preclude Claimant from working. She has full use of her right arm and no functional restrictions involving either her back or her lower extremities. She is not restricted from driving and has not complained of any disabling side effects related to her use of pain medications. Indeed, in Dr. Backus’ opinion, for Claimant to return to work likely would be quite beneficial. In his experience, chronic pain patients usually get better once they do so. I find this testimony to be credible.
14. Dr. Backus acknowledged that Claimant has never undergone a functional capacity evaluation. He testified that although such testing is helpful, it is not always necessary. In this case, Dr. Backus felt confident in his ability to gauge Claimant’s work capacity without it. I find this testimony to be credible.
15. At her attorney’s referral, Claimant underwent an evaluation with Dr. Turek, a chiropractor, in February 2011. Dr. Turek is a diplomate in chiropractic orthopedics, a designation akin to board certification for medical doctors. His practice primarily involves treating orthopedic problems and musculoskeletal disorders.
1 Dr. Fanciullo, a pain management specialist to whom Claimant was referred for a consultation in May 2010, completed a similar form and checked the same box after his evaluation. This determination also came with no explanation, and therefore I find its value as limited as Dr. Carr’s.
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16. Based on his review of Claimant’s medical records, Dr. Turek concluded that Claimant had been totally disabled from working during the summer of 2010. Given how restricted the range of motion in Claimant’s left arm was during that period, in Dr. Turek’s opinion Claimant would have risked developing an overuse problem in her right arm had she attempted to return to work.
17. Dr. Turek acknowledged that his opinion as to Claimant’s work capacity during the summer of 2010 was based solely on his review of her medical records, as he did not have occasion to examine her until some eight months later. Dr. Turek also admitted that Claimant has not complained of any right arm symptoms, despite the fact that she uses her left arm only sparingly. Last, Dr. Turek was unaware of the fact that following her 1998 injury Claimant had been released to return to work with only limited use of her left arm and had managed successfully to do so. I find that Dr. Turek’s opinion is weakened as a result of these factors.
Defendant’s Termination of Temporary Disability Benefits
18. With Dr. Backus’ work capacity opinion as support, on May 27, 2010 Defendant notified Claimant’s attorney that Claimant had been released to return to work. Defendant demanded that Claimant begin searching for suitable work immediately and submit at least five job contacts weekly beginning June 4, 2010. Should she fail to do so, Defendant advised, it would seek to discontinue her temporary total disability benefits.
19. Claimant’s attorney objected to Defendant’s work search requirement. In correspondence to the Department, he argued: (1) that Claimant’s treating physicians had not yet released her to work; (2) that to expect Claimant to make five job contacts per week was unreasonable given both the rural nature of her labor market area and her physical limitations; and (3) that there was insufficient time for Claimant to comply with Defendant’s June 4th deadline for completing the first weekly work search.
20. Between June 2, 2010 (the date when Claimant’s attorney received Defendant’s work search notice) and June 8, 2010 Claimant failed to submit evidence of any job contacts to Defendant. Consequently, on June 8th Defendant submitted its Notice of Intention to Discontinue Payments (Form 27) to the Department, in which it sought to discontinue Claimant’s temporary total disability benefits for failure to conduct a good faith search for suitable work. The Department approved the discontinuance effective June 18, 2010.
21. Claimant did not make any job search efforts between June 18, 2010 and August 6, 2010. She did not receive any temporary total disability benefits during this period. Following an informal conference on July 28, 2010 the parties agreed that she would commence a job search and would submit evidence to Defendant of at least two contacts weekly. Claimant did so beginning on August 7, 2010 and Defendant reinstated her temporary total disability benefits accordingly.
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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 issue here is whether Defendant properly discontinued Claimant’s temporary total disability benefits from June 18, 2010 through August 6, 2010 on the grounds that she had failed to conduct a good faith search for suitable work once released to do so. See Workers’ Compensation Rule 13.0000. Having initially accepted Claimant’s injury as compensable, the burden is on Defendant to establish that its discontinuance was proper. Merrill v. University of Vermont, 133 Vt. 101, 105 (1974); Luff v. Rent Way, Opinion No. 07-10WC (February 16, 2010).
3. The test for determining entitlement to temporary total disability benefits “is not whether the injured employee is totally incapacitated from performing the same type of labor as he was performing at the time of his injury but whether he is capable of performing any kind of available work.” Sivret v. Knight, 118 Vt. 343, 346 (1954), cited with approval in Hotaling v. St. Johnsbury Trucking Co., 153 Vt. 581, 584 (1990).
4. Conflicting medical evidence was produced as to whether Claimant meets this standard. According to Drs. Carr and Turek, she does. According to Dr. Backus, she does not.
5. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
6. Notwithstanding his status as Claimant’s treating physician, Dr. Carr’s opinion as to work capacity was never stated in sufficient detail for me even to consider it. Checking a box on a form may be a useful way for an adjuster to quickly monitor an injured worker’s status as his or her recovery progresses, but this method of stating an opinion has little value otherwise.
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7. Neither Dr. Turek nor Dr. Backus was a treating physician, and both were qualified to express opinions as to Claimant’s work capacity during the summer of 2010. Both examined pertinent records. Both conducted comprehensive evaluations, though the fact that Dr. Backus’ exam occurred shortly before the period in question while Dr. Turek’s did not occur until some eight months later makes the former more persuasive.
8. Aside from stating his fear that Claimant might develop an overuse injury in her right arm if she returned to work, Dr. Turek provided no basis for his conclusion that she was precluded from performing any work at all. He was unaware that Claimant had returned to work successfully after her 1998 injury, in part by teaching herself to perform most tasks right-handed. In these respects, his opinion lacked objective support and was not sufficiently thorough for me to accept it.
9. Dr. Backus’ opinion was better supported by the available evidence. The fact is, Claimant has full use of her other extremities and does not suffer from any other limiting impairments, either physical or psychological. She was able to return to work following her 1998 injury despite having only limited use of her left arm. There is no reason to believe that she cannot do so again now.
10. I conclude that Dr. Backus’ opinion as to Claimant’s work capacity is more persuasive than Dr. Turek’s.
11. Having concluded that Claimant had a work capacity during the summer of 2010, I also conclude that Defendant appropriately notified her of her obligation to search for suitable work, and appropriately terminated her temporary disability benefits when she failed to do so.
12. As Claimant has failed to prevail on her claim for benefits, she 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 temporary total disability benefits for the period from June 18, 2010 through August 6, 2010 is hereby DENIED.
DATED at Montpelier, Vermont this 25th day of July 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.

Clifford Hill v. Lamell Lumber Corp. (November 14, 2012)

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Clifford Hill v. Lamell Lumber Corp. (November 14, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Clifford Hill Opinion No. 27-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Lamell Lumber Corp.
For: Anne M. Noonan
Commissioner
State File No. CC-00915
OPINION AND ORDER
Hearing held in Montpelier on August 29, 2012
Record closed on October 3, 2012
APPEARANCES:
Frank Talbott, Esq., for Claimant
Justin Sluka, Esq., for Defendant
ISSUES PRESENTED:
1. Did Claimant suffer an injury arising out of and in the course of his employment, either on or about December 21, 2009 and/or on December 31, 2009?
2. If yes, to what temporary total and/or permanent partial disability benefits is Claimant entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Medical records
Claimant’s Exhibit 1: Copy of time card for week ending 1/5/10
Claimant’s Exhibit 2: Copies of time cards for weeks ending 1/5/10 and 12/29/09
Claimant’s Exhibit 3: Employment termination notice, February 23, 2010
Claimant’s Exhibit 4: Payroll register, January 1, 2009 to December 31, 2009
Claimant’s Exhibit 5: Memo to employees, December 14, 2009
Claimant’s Exhibit 7: Original time card, week ending 1/5/10
Claimant’s Exhibit 8: Original time card, week ending 12/29/09
Claimant’s Exhibit 9: Original time card, week ending 12/22/09
Defendant’s Exhibit A: December 2009 – January 2010 calendar
Defendant’s Exhibit B: Unemployment compensation determinations, 3-25-10 and 3-26-10
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Defendant’s Exhibit E: Cell phone record
CLAIM:
Temporary total disability benefits from January 4, 2010 to December 10, 2010, pursuant to 21 V.S.A. §642
Permanent partial disability benefits in accordance with a 39 percent whole person impairment referable to the spine, pursuant to 21 V.S.A. §648
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was 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. As of December 2009 Claimant had been employed at Defendant’s sawmill as a yard worker for approximately five years. His primary assignment was running the de-barker, the machine that removes the bark from logs before they are sawed for lumber. His other duties included stacking lumber, running the front-end loader and sweeping up various areas of the mill.
Claimant’s Alleged Work-Related Injuries and Subsequent Medical Course
4. Claimant alleges two incidents at work in December 2009, both of which he asserts caused injury, neither of which were reported. The first incident occurred at some point during the week before Christmas.1 Claimant was working in a basement room that houses the apparatus for processing wood chips. Slabs of wood or bark make their way through a chipper to a series of vibrating screens, which sort them according to size. Appropriately sized chips are directed first into a blower, and from there into a steel chute that runs uphill, through the concrete outer wall and into a trailer parked outside.
5. On the day in question, Claimant was shoveling wood chips back into the blower from where they had fallen on the floor. Thinking he was further away from the chute than he was, as he turned to walk around it instead he walked into it. Claimant hit the left side of his head on the chute and fell down. The impact left a red mark on his forehead, but did not cause any bleeding or bruising. He recalled that he had a slight headache thereafter, for which he took some aspirin from the first-aid station. Other than that, he did not seek medical attention.2
1 Claimant did not specify the date on which this incident allegedly occurred – December 21, 2009 – until almost a year later, in the context of the December 2010 independent medical exam that his attorney arranged with Dr. White. See infra at Finding of Fact No. 14. In fact, Defendant’s time cards document that he did not work on that day. Claimant now asserts that the incident occurred at some point during the week prior to Christmas 2009, though he cannot recall exactly when.
2 Claimant testified that as soon as he left the chipper area he told his supervisor, Keith Lamell, that he had hit his head on the chute. Mr. Lamell was not called by either party to testify, and therefore there is no corroborating
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6. The second incident occurred approximately two weeks later, on Thursday, December 31, 2009. Although the sawmill was shut down for the Christmas holiday, Keith Lamell telephoned him that morning and asked him if he would help change a bearing in the de-barker machine. Claimant agreed to do so.
7. Claimant alleges as follows: At some point during the day he made use of a plastic bucket to retrieve some used oil from the maintenance shop, so that he could lubricate the chains on the log deck. After completing the job, he began walking back to the garage, plastic bucket in hand. As he traversed an icy metal cross-over in the lumber yard, he slipped and fell. As he went down, he struck his right ribs and chest on the bucket.3
8. Because the mill was still shut down for the holiday week, Claimant did not work in the days immediately following this alleged incident. Nor did he seek medical treatment. The following Monday, January 4, 2010, he arrived at the mill for his scheduled shift. While working that afternoon, he slipped again on some snow and ice in the yard, bruising his ribs for a second time. Concerned that he had aggravated his injury from the week before, he left work early and presented to the local walk-in clinic for evaluation and treatment.
9. The medical record of Claimant’s January 4, 2010 clinic visit is telling, both for what it contains and for what it omits. It reports the history of Claimant’s presenting injury as having occurred two days previously, when he slipped on the ice and fell, striking his right chest on what is described first as “an ash bucket” and later as “a plastic bucket.” Significantly, the record does not report the fall as having occurred at work. Nor does it reference the earlier incident, in which Claimant allegedly hit his head on the chipper chute, in any way.
10. As for symptoms, the January 4, 2010 record reports “persistent chest pain” as Claimant’s only complaint. Of note, a review of neurological systems was described as negative for both dizziness and weakness. Claimant was diagnosed with a chest wall contusion, for which he was prescribed anti-inflammatories and pain medications.
11. Three days later, on January 7, 2010 Claimant returned to the walk-in clinic, this time complaining that he had caught himself from falling “due to dizziness and legs seizing up on him.” He reported a three-week history of progressively worsening numbness and weakness in his extremities, gait difficulty and loss of balance, with the “current episode” beginning more than one week ago. This history is quite obviously different from the one reported in the context of Claimant’s January 4, 2010 clinic visit. Significantly, even in reporting this revised account Claimant still made no mention of having hit his head on
evidence for this testimony. Having reason to doubt Claimant’s ability to recall the specifics of this and other events, I cannot find as a fact that his recollection in this regard is accurate.
3 Claimant testified that he thought he reported this incident to Keith Lamell as well, though he admitted he was uncertain on this point. No First Report of Injury was filed, and Claimant did not seek workers’ compensation benefits on account of either this or the chipper chute incident until the following November, see Finding of Fact No. 36, infra.
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the chipper chute at work, though this would have occurred approximately three weeks previously. Nor did he recall any other recent head or neck trauma.
12. Claimant’s neurological signs and symptoms were serious enough to warrant immediate hospitalization. An MRI study revealed a large cervical disc herniation at C5-6, with cord compression. With a diagnosis of cervical myelopathy,4 on January 11, 2010 he underwent a C5-6 discectomy and fusion.
13. Claimant was followed post-operatively by his treating neurosurgeon, Dr. Jewell. Initially he reported some improvement in his symptoms, but this was relatively short-lived. By October 2010 he was complaining of “terrible” neck pain, ongoing numbness in his arms and legs and balance issues. A second MRI study demonstrated that his cervical spinal cord was well decompressed, leading Dr. Jewell to conclude that further surgery was not warranted. As a result, Claimant’s treatment since that time has consisted primarily of narcotic pain medications.
Expert Medical Opinions
(a) Dr. White
14. At the request of his attorney, in December 2010 Claimant underwent an independent medical examination with Dr. White, an occupational medicine specialist. In the course of this examination, for the first time Claimant reported having “banged my head” on the chipper chute at work on December 21, 2009 as the inciting event for his subsequent symptoms. Following that incident, he recalled, he had no feeling in his legs or hands, and his balance was impaired.
15. Dr. White concurred with Dr. Jewell’s diagnosis – C5-6 disc herniation with cervical myelopathy. He determined that Claimant had reached an end medical result and rated him with a 39 percent whole person impairment. A critical component of this rating was Dr. White’s conclusion that Dr. Jewell’s fusion surgery was not entirely curative, and that Claimant has continued to exhibit signs indicative of cervical myelopathy.
16. As for whether there was a causal link between Claimant’s condition and the alleged chipper chute incident at work, Dr. White had this to say:
In discussing the onset of his symptoms today, Mr. Hill describes a fall in which he struck his head,5 with immediate onset of symptoms at that time. If that is the correct description of the mechanism and chronology, there would indeed be a causal relationship, an aggravation of his underlying (previously asymptomatic) cervical problem.
4 Cervical myelopathy differs from radiculopathy in that it indicates damage to the spinal cord itself rather than to the peripheral nerve roots.
5 Dr. White later clarified that his description of the chipper chute incident as involving a “fall in which he struck his head” was erroneous, and that in fact Claimant had told him that he simply struck his head. Regardless, his opinion that the occurrence was the inciting event for Claimant’s subsequent symptoms remains unchanged.
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17. Dr. White specifically acknowledged that the mechanism of injury Claimant described was not corroborated in the medical records. As to this, he stated:
Obviously, I was not there at the time and I did not observe Mr. Hill falling and hitting his head. Furthermore, it is really not a medical question as to whether or not this incident occurred. However, as noted above, if indeed this was the injury mechanism, there is a causal relationship.
18. As Dr. White correctly noted, the contemporaneous medical records do not corroborate the mechanism of injury Claimant described. The credible evidence also fails to corroborate Dr. White’s assumptions as to the chronology of Claimant’s symptoms, specifically, that they began immediately after he struck his head on the chipper chute. Notwithstanding what he reported to Dr. White, at the formal hearing Claimant himself testified that aside from a minor headache, he did not experience any deleterious effects from that incident. Nor do the contemporaneous medical records indicate a connection between the onset of his symptoms and either that event or any other recent head or neck trauma. See Findings of Fact Nos. 9-11, supra. Considering this evidence, I cannot accept as credible Dr. White’s assumption that Claimant’s neurological symptoms began with the chipper chute incident.
19. Dr. White also addressed the causal link between the chipper chute incident and Claimant’s alleged slip and fall onto a plastic bucket at work, as follows:
In my opinion, the initial incident with the wood chipper represents the aggravating factor instigating Mr. Hill’s symptoms. Falling onto a bucket with enough force to trigger medical attention for chest pain could certainly involve a “whiplash” mechanism that could further aggravate the situation.
20. Again, the credible evidence provides no support for Dr. White’s theory that Claimant’s fall onto the plastic bucket might have involved a whiplash component. Claimant did not describe the fall in that way, either in his testimony or, more significantly, in reporting the event to his medical providers at the time.
(b) Dr. Boucher
21. At Defendant’s request, in May 2012 Dr. Boucher reviewed Claimant’s medical records. Like Dr. White, Dr. Boucher is a specialist in occupational medicine. Unlike Dr. White, he did not personally examine Claimant. Dr. Boucher rendered opinions both as to the cause of Claimant’s cervical condition and as to permanency.
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22. As to causation, Dr. Boucher acknowledged that although Claimant likely suffered from preexisting degenerative disc disease in his cervical spine, his C5-6 disc herniation was likely the result of an acute event, not merely further degeneration. In this respect, he concurred with Dr. White. However, he strongly disputed Dr. White’s conclusion that the chipper chute incident was the likely culprit. According to Dr. Boucher, for a cervical disc herniation to result from a blow to the head requires a very strong impact, one that would at least cause a visible abrasion and swelling, and more likely concussion and/or loss of consciousness as well. Even though the impact Claimant described caused him to fall and resulted in a red mark on his forehead, it was not serious enough to warrant medical treatment, and he did not mention it when, three weeks later, he first complained to his treating providers of neurological symptoms. Claimant himself treated the incident as relatively minor, and in Dr. Boucher’s opinion, rightly so. I find this reasoning persuasive.
23. As Dr. White had, Dr. Boucher theorized that Claimant’s alleged slip and fall onto a plastic bucket might have included a whiplash component, which could possibly have been a factor in causing his C5-6 disc herniation. As noted previously, the credible evidence does not provide any support for this hypothesis.
24. As for permanency, Dr. Boucher rated Claimant with a 26 percent whole person impairment rating on account of his cervical fusion surgery. Unlike Dr. White, Dr. Boucher did not add any additional impairment for ongoing cervical myelopathy. In his opinion, the numbness in his extremities and loss of balance that Claimant reported, both before and after his alleged work-related injuries, most likely resulted from peripheral neuropathy, not cervical myelopathy. According to Dr. Boucher, Claimant had a long history of alcohol dependence and abuse, and neuropathies of this type are common in such cases.
25. I find reason to doubt Dr. Boucher’s conclusion in this regard. I am skeptical, first of all, of a diagnosis reached solely on the basis of a records review, particularly one that contradicts the treating neurosurgeon’s diagnosis, both pre- and post-operatively. Second, while Claimant’s history of alcoholism is well documented in the record, none of the diagnostic testing completed at the time of his January 2010 hospitalization, including liver function studies, brain scan, CT and MRI, revealed any evidence of alcohol-related disease or associated motor disturbance. Dr. Boucher did not consider these test results to be relevant. However, Dr. White credibly explained why they made it less likely that the physical signs Claimant displayed were a consequence of alcoholism-related peripheral neuropathy, and more likely that they were indicative of cervical myelopathy. I find his reasoning on this point more persuasive than Dr. Boucher’s.
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Defense Witnesses as to Claimant’s Credibility
26. The importance that Dr. White in particular ascribed to the history Claimant reported warrants close examination of the latter’s credibility. Three witnesses testified on Defendant’s behalf on this issue – Ron Lamell, Sr., Ron Lamell, Jr. and Dennis Farley.
(a) Ron Lamell, Sr.
27. Ron Lamell, Sr. is Defendant’s president and owner. His father started the sawmill, and he began working there as a teenager. Over the years he has worked at every aspect of the business’ operation, though currently he spends most of his time in the office.
28. Mr. Lamell presented in all respects as a competent, responsible employer. His 35 employees, many of whom have been with the company for years, enjoy such benefits as health insurance, a generous profit sharing plan and Christmas bonuses. For the past four or five years, Mr. Lamell also has offered a workers’ compensation bonus program. According to this program, so long as no work-related lost-time injuries are reported during the preceding year, in addition to their Christmas bonuses employees also are paid for the holiday shut-down week. In Mr. Lamell’s experience, this program has not deterred employees from reporting work-related injuries as they occur. I find this testimony credible.
29. Mr. Lamell has known both Claimant and his father for many years. In addition to working at the mill, at times in the past Claimant had helped him work on antique cars and cut firewood. Claimant also was Mr. Lamell’s tenant, and was helping him renovate the rental property in which he lived. Mr. Lamell testified credibly that he and Claimant had long enjoyed a cordial, friendly relationship.
30. Mr. Lamell found reason to doubt Claimant’s account of having hit his head on the chipper chute, primarily because he could not believe that Claimant would have been in that area while the mill was running. The chipper machinery is particularly dangerous, and for that reason the room in which it is located is always chained off. The only time employees are instructed to clean up in that area is when the mill is shut down, on Saturday afternoons, for example. According to Mr. Lamell, for Claimant to have been shoveling chips there at the time he alleged, while the machinery was running, was prohibited.
31. At the same time, however, Mr. Lamell acknowledged that he knew Claimant to be an employee who did things his own way, including even wandering off occasionally to do whatever he thought needed to be done. I accept this characterization of Claimant’s work habits as credible.
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32. Mr. Lamell also doubted Claimant’s account of having fallen onto a plastic bucket at work on December 31, 2009. His reasons for doing so can be summarized as follows:
• According to Mr. Lamell, given the ever-present risk of a calamitous fire, open buckets of the type Claimant described were not available at the mill. Instead, only closed buckets with spouts were used to retrieve flammables such as grease or used oil from the maintenance shop;
• Claimant never reported the injury as work-related. To the contrary, when he left work early on January 4, 2010 and failed to show the next day, Mr. Lamell visited him at his home. According to Mr. Lamell, Claimant told him at that time that he had tripped over an ash bucket at home the previous Friday and hurt his ribs.
(b) Ron Lamell, Jr.
33. Ron Lamell, Jr. is the mill foreman. Like his father, he has worked there for his entire adult life. Unlike the senior Mr. Lamell, he spends most of his work day outdoors rather than in the office.
34. Mr. Lamell gave no testimony as to Claimant’s first alleged injury, involving the chipper chute. As to the second injury, Mr. Lamell testified that Claimant told him on Monday, January 4, 2010 that he had slipped and fallen on an ash bucket at home and jammed his ribs. Later that day, he left work early and never returned.
35. In late February 2010 Mr. Lamell visited Claimant at his home, to inquire as to his medical status and particularly, whether and when he might be planning to return to work. Claimant’s response was vague and indefinite, whereupon Mr. Lamell presented him with a letter terminating his employment. During the course of their conversation, Mr. Lamell never asked whether Claimant’s condition was in any way work-related, nor did Claimant ever volunteer that it was.
36. Claimant testified that the reason he did not report either having hit his head on the chipper chute or having fallen in the mill yard as work-related accidents was because he did not want to disqualify his co-employees from receiving their year-end workers’ compensation bonus. This reasoning might explain why he was reluctant to make a workers’ compensation claim initially. I cannot accept it as a credible explanation for his failure to do so after February 2010, when his employment for Defendant terminated. Indeed, at that juncture, rather than pursuing a claim for workers’ compensation benefits Claimant filed instead for unemployment compensation. Because he was as yet medically unable to work, his claim was denied. It was still some eight months after that before he first alleged having been injured at work. This he did by way of a Notice of Injury and Claim for Compensation (Form 5) filed by his attorney in November 2010.
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(c) Dennis Farley
37. Dennis Farley has been employed at the sawmill for 30 years. He recalled drinking coffee and chatting with Claimant in the break room on Monday, January 4, 2010, their first morning back at work after the holiday shut-down. According to Mr. Farley, Claimant told him that he had been working with sheetrock at home over the weekend and had hurt his neck. To Mr. Farley’s eye, however, Claimant did not look like he had hurt either his neck or his ribs.
Claimant’s Intellectual Functioning and Possible Memory Deficits
38. In the years since his alleged work injuries, Claimant has struggled at times with major depression.6 In the context of one such episode, in April 2011 he was hospitalized for more than two weeks for acute in-patient psychiatric treatment. In the course of that hospitalization, he underwent neuropsychological testing. Although the final report from that evaluation was not made part of the joint medical exhibit, preliminary results suggested that he suffered from longstanding memory deficits and other intellectual impairments. Notably, Claimant was described as being confident in his ability to recall information even though he did so incorrectly.
39. That Claimant was a vague historian is apparent from the medical records. The discrepancy between the history he reported to the walk-in clinic providers on January 4, 2010 and the one he reported only three days later has already been noted, see Finding of Fact No. 11, supra. Having closely evaluated his credibility as a witness, I can find no reason to believe that he concocted out of whole cloth either the chipper chute incident or the incident in which he fell on a bucket and injured his chest. That said, I have no confidence, and therefore cannot find, that those events occurred when and where he says they did, or that they led directly to the symptoms from which he subsequently complained.
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).
6 The disputed claims in the pending litigation were limited solely to the compensability of Claimant’s cervical injury. Whether his bouts with depression are causally related has not yet been put in issue.
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2. This claim turns entirely on Claimant’s credibility in describing two alleged work-related incidents, both unwitnessed, followed by a ten-month delay prior to asserting a claim for workers’ compensation benefits. In such instances, the trier of fact must evaluate the factual evidence carefully so as to explore any inconsistencies. Whether these are due to “hidden or not-so-hidden motivations,” Fanger v. Village Inn, Opinion No. 5-95WC (April 20, 1995), or merely to faulty recollections, if a claimant cannot sustain his burden of proving that the relevant events occurred as and when he alleges they did, his claim must fail.
3. The commissioner has in the past enumerated four questions to assist in the process of evaluating a claimant’s credibility in such claims. First, are there medical records contemporaneous with the claimed injury and/or a credible history of continuing complaints? Second, does the claimant lack knowledge of the workers’ compensation reporting process? Third, is the work performed consistent with the claimant’s complaints? And fourth, is there persuasive medical evidence supporting causation? Jurden v. Northern Power Systems, Inc., Opinion No. 39-08WC (October 6, 2008); Larrabee v. Heavensent Farm, Opinion No. 13-05WC (February 4, 2005), citing Seguin v. Ethan Allen, Opinion No. 28S-02WC (July 25, 2002).
4. The contemporaneous medical records here do not help Claimant’s cause as to either of the work-related incidents he has alleged. They make no mention whatsoever of the chipper chute incident, and report vague and inconsistent histories as to both the timing and mechanism of his fall onto a bucket some three weeks later. The chronology of the symptoms Claimant reported at the time is likewise confused and variable. And while Claimant exhibited a credible history of continuing complaints after his cervical injury was discovered, this is of no use in determining what came before that injury.
5. No evidence was produced in answer to the second question listed above, whether Claimant lacked knowledge of the workers’ compensation reporting process. Claimant was aware of Defendant’s workers’ compensation bonus program, and testified that he was deterred from reporting his injuries as work-related for fear of disqualifying his co-employees from receiving their bonuses. As noted above, Finding of Fact No. 36, supra, I cannot accept this as a credible explanation for his decision to delay for as long as he did.
6. Was the work Claimant was performing at the time of the alleged incidents consistent with his subsequent complaints? Notwithstanding Mr. Lamell, Sr.’s credible testimony that Claimant should not have been working in or around the chipper chute while the mill was running, I can accept that on some day during the week before Christmas he likely did so nevertheless. I can also accept that he hit his head on the chute, in exactly the manner he alleged. What I cannot accept is that that event led immediately to the neurological symptoms he later described. I simply cannot believe that Claimant would have failed to mention the chipper chute incident to his medical providers had the temporal link to those symptoms been as obvious as he later asserted. I thus conclude that the work he was performing at the time does not credibly account for his subsequent complaints.
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7. As for the second alleged incident, I conclude that Claimant has failed to sustain his burden of proving that the event occurred at work rather than at home. Considered against Mr. Lamell, Sr.’s credible testimony regarding the ever-present risk of fire at a sawmill, Claimant did not adequately explain how he came to be carrying a flammable substance in an open container there. Nor did he once report the fall as having occurred at work, either to his medical providers, to Mr. Lamell, Sr. or to Mr. Lamell, Jr. It may be that despite these inconsistencies Claimant’s version of events is accurate nonetheless, but in the end I am unconvinced.
8. Conflicting testimony was offered as to the final factor, whether the medical evidence supports work-related causation. Dr. White acknowledged that his causation opinion was based entirely on factual assumptions as to both the mechanism of Claimant’s alleged chipper chute injury and the chronology of his subsequent symptoms. Dr. Boucher credibly assailed the first assumption, explaining why, given Claimant’s own description of the incident, it was doubtful that he hit his head with enough force to cause a cervical disc herniation. Lacking persuasive evidence to support a clear temporal link between that event and the neurological symptoms Claimant later reported I must reject Dr. White’s second assumption as well.
9. Even assuming that the second alleged incident, involving the fall onto a bucket, occurred at work rather than at home, the medical evidence establishing a causal link is similarly unconvincing. Both Dr. White and Dr. Boucher theorized that a fall of this type might have included a whiplash component, but their testimony was purely speculative, and unsupported either by Claimant’s own description of the event or by the contemporaneous medical records.
10. Considering the totality of the evidence, and with due regard for the questions raised in cases such as this, I conclude that Claimant has failed to sustain his burden of proving that either of the work-related incidents he alleged were the likely triggers for his cervical injury. Therefore, his claim for workers’ compensation benefits must fail.
11. Having concluded that Claimant’s cervical condition is not compensable, I need not decide which of the two permanency opinions offered is the most credible. I note nevertheless that Dr. White benefitted from having personally examined Claimant, and therefore was better able to evaluate his current symptoms. To the extent this informed his decision to add an additional impairment for ongoing cervical myelopathy, whereas Dr. Boucher failed to do so, I already have found Dr. White’s rating to be the more credible one. See Finding of Fact No. 25, supra.
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12. Claimant having failed to prevail on his claim for benefits, he is not entitled to an award of costs and attorney fees.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for workers’ compensation benefits causally related to his cervical condition is hereby DENIED.
DATED at Montpelier, Vermont this 14th day of November 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.

Josef Knoff v. Josef Knoff Illuminating (October 15, 2012)

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

Josef Knoff v. Josef Knoff Illuminating (October 15, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Josef Knoff Opinion No. 25-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Josef Knoff Illuminating
For: Anne M. Noonan
Commissioner
State File No. P-16619
OPINION AND ORDER
Hearing held in Montpelier on August 17, 2012
Record closed on September 19, 2012
APPEARANCES:
Josef Knoff, pro se
William Blake, Esq., for Defendant
ISSUES PRESENTED:
1. Are Claimant’s current complaints causally related to his February 2000 compensable work injury?
2. If yes, is Claimant entitled to reinstatement of temporary total disability benefits retroactive to December 17, 2010?
3. If yes, what is the appropriate average weekly wage and compensation rate at which such benefits should be paid?
4. Is Claimant’s claim for mileage reimbursement for treatment-related travel barred in whole or in part by the applicable statute of limitations?
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EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Medical statement in support of Social Security Disability, June 15, 2005
Claimant’s Exhibit 2: Physical therapy progress notes, 5/4/11-6/6/11
Defendant’s Exhibit A: Exhibit 2 to Claimant’s deposition, April 20, 2005
Defendant’s Exhibit C: Curriculum vitae, Fran Plaisted, M.A.
Defendant’s Exhibit D: Vocational Assessment of Earning Capacity, June 4, 2012
Defendant’s Exhibit E: Wage records, 5/21/10-12/17/10
Defendant’s Exhibit F: Curriculum vitae, Verne Backus, M.D., M.P.H.
CLAIM:
Temporary total disability benefits retroactive to December 17, 2010 pursuant to 21 V.S.A. §642
Mileage reimbursement pursuant to Workers’ Compensation Rule 12.2100
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. Judicial notice also is taken of the commissioner’s previous decisions in J.K. v. Joe Knoff Illuminating, Opinion No. 39-05WC (July 12, 2005), J.K. v. Joe Knoff Illuminating, Opinion No. 28-06WC (July 7, 2006), and Josef Knoff v. Josef Knoff Illuminating, Opinion No. 13-11WC (June 2, 2011), and of the Vermont Supreme Court’s entry order in Josef Knoff v. Josef Knoff Illuminating, Supreme Court Docket No. 2011-239 (December Term 2011).
3. Claimant was the self-employed owner and manager of Defendant’s business for fifteen years prior to February 2000. Operating under the trade name Illuminating Consulting Service and Supply, the business marketed, designed and installed energy efficient lighting systems in commercial, industrial and institutional settings. It was a successful enterprise that generated significant annual revenues.
4. Claimant was in all respects a hands-on owner. He worked both in the office and in the field. The latter duties were physically challenging, often requiring sustained overhead work on ladders or high staging with his neck in a hyper-extended position.
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Claimant’s 2000 Injury and Subsequent Medical Treatment
5. On February 1, 2000 Claimant was finishing up an installation at a large health care facility in New Hampshire when he suffered the onset of severe neck pain. Diagnostic imaging studies revealed degenerative disc disease at C4-5 and C5-6, a right-sided disc herniation at C5-6 and a small left-sided herniation at C6-7. These findings correlated with Claimant’s symptoms, which included pain, stiffness and reduced range of motion in his neck, as well as pain and paresthesias in his arms bilaterally.
6. Defendant accepted Claimant’s injury as compensable and began paying workers’ compensation benefits accordingly.
7. Claimant treated his symptoms conservatively, with passive physical therapy modalities and anti-inflammatories. As early as June 2000 his consulting neurosurgeon, Dr. Penar, determined that he was an appropriate candidate for surgical disc excision and fusion at the C5-6 level. Some months later, in December 2000 Dr. Wepsic, another consulting neurosurgeon, also recommended surgery, to include decompressing the nerve roots at both C5-6 and C6-7.
8. Claimant chose not to pursue either of these surgical treatment options. Instead, from November 2000 through January 2001 he underwent a multidisciplinary functional restoration program overseen by Dr. Johansson, an osteopath. Dr. Johansson diagnosed Claimant with cervical disc syndrome and myofascial pain. The program he recommended to address these conditions encompassed both physical and psychological components, and included treatments specifically directed at behavioral medicine and pain management.
9. Claimant successfully completed Dr. Johansson’s program. Although his pain was not completely eliminated, his range of motion improved and he reported that he was better able to control and manage his symptoms than he had been previously.
10. In February 2001 Dr. Johansson determined that Claimant had reached an end medical result. Noting both clinical findings and diagnostic imaging studies indicative of a C5-6 disc herniation with radiculopathy, he rated Claimant with a 15 percent whole person permanent impairment referable to his compensable cervical injury. The Department approved the parties’ subsequent agreement to pay permanency benefits in accordance with this rating.
11. As for functional restrictions, Dr. Johansson determined that Claimant had a light to medium work capacity and was capable of full-time sedentary work. He endorsed Claimant’s plan to return to work in a computer-oriented office setting, so long as his work station was ergonomically designed and he was able to take frequent stretch breaks.
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Medical Treatment from 2003 through 2006
12. As expected with a cervical disc injury such as Claimant’s, even after reaching an end medical result he continued to experience periods of waxing and waning symptoms. He did not seek additional focused treatment, however, until May 2003. By that time, his symptoms had worsened to such an extent that they interfered significantly with his functional abilities.
13. In March and April 2005 Claimant participated again in a functional restoration program supervised by Dr. Johansson. When his symptoms failed to improve, Dr. Johansson recommended another surgical consult.
14. In July 2005 Claimant underwent an evaluation with Dr. Phillips, a neurosurgeon. When compared with the MRI taken shortly after his 2000 injury, a new MRI study revealed that the disc herniation previously noted at C5-6 had resolved, but that bone spurs both at that level and at C6-7 had worsened. Given the correlation between these findings and Claimant’s worsening symptoms, Dr. Phillips recommended surgery at the C7 level.
15. Defendant disputed its responsibility for Dr. Phillips’ proposed surgery on the grounds that it was not causally related to Claimant’s compensable injury. As medical support for its position, Defendant offered the opinion of Dr. Levy, a neurologist. According to Dr. Levy’s analysis, Claimant’s ongoing symptoms were due solely to the natural progression of degenerative disc disease, and were not work related at all.
16. Dr. Phillips disagreed with this analysis. According to his theory of causation, Claimant’s work activities in February 2000 had precipitated the left-sided disc herniation at C6-7. The bone spurs that subsequently developed at that level represented the body’s natural attempt to prohibit movement and achieve some stability in the area. In that sense, the extent of disc degeneration at C6-7 came about as a direct consequence of the work injury.
17. Following a formal hearing, in a decision dated July 7, 2006 the commissioner rejected Dr. Levy’s causation analysis and accepted Dr. Phillips’ opinion instead.1 As a consequence, Defendant was ordered to pay the medical and rehabilitation costs associated with the C7 surgery that Dr. Phillips had recommended.
18. Ironically, after having prevailed on his claim that Dr. Phillips’ proposed surgery was causally related to his work injury, Claimant again decided against that treatment option. His symptoms had improved somewhat, and while they still limited his activity he no longer viewed surgery as inevitable. Instead he opted to take a “wait and see” approach, in the hopes that over time his symptoms might abate even more.
1 J.K. v. Joe Knoff Illuminating, Opinion No. 28-06WC (July 7, 2006).
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19. Between October 2006 and December 2010 Claimant continued to experience ongoing neck pain and radicular symptoms that significantly limited his activity level. Aside from routine exercises and anti-inflammatories, however, he did not actively treat for his cervical condition.
Medical Treatment since 2010
20. On December 17, 2010 Claimant reported to Dr. Manchester, his primary care physician, that his neck pain and radicular symptoms had worsened. There followed a series of therapies, specialist consults and diagnostic evaluations aimed at addressing this latest downturn. These included:
• Evaluations in early 2011 with Dr. Barnum, an orthopedic surgeon, who concluded that a C5-6 and C6-7 discectomy and fusion likely would alleviate Claimant’s symptoms and improve his function;
• MRI studies in March and October 2011, which showed herniated discs at both C5-6 and C6-7, with further calcification at those levels and progression of degenerative disease at the adjacent levels as well;
• Electrodiagnostic studies in April 2011, which documented chronic left C7 radiculopathy but no new radicular deficits;
• An unsuccessful course of physical therapy from April through May 2011;
• An October 2011 evaluation with Dr. Bono, another orthopedic surgeon, who concluded that notwithstanding his MRI findings Claimant likely would not benefit from surgery, and would best be helped by a more structured, physiatrist-directed trial of non-operative care; and
• A December 2011 evaluation with Dr. Flimlin, a physiatrist, followed by a referral to Dr. Naylor, a psychiatrist and specialist in chronic pain management.
21. From mid-April through mid-June 2012 Claimant participated in an 11-week pain management program offered by Dr. Naylor’s Mind-Body Clinic. The focus of this program is to teach copings skills for managing chronic pain through cognitive restructuring, relaxation training, visual imagery, education and group discussion. I find it likely that Claimant previously learned at least some of these skills in the context of Dr. Johansson’s November 2000 multidisciplinary rehabilitation program.
22. In conjunction with the Mind-Body Clinic program, Dr. Naylor also suggested that Claimant participate in a “physician-managed graded exercise program” to help him improve his overall physical conditioning. She recommended that he re-enroll in Dr. Johansson’s functional restoration program for this purpose.
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23. At the time of the formal hearing, Claimant had completed Dr. Naylor’s Mind-Body Clinic program, and was two-thirds of the way through Dr. Johansson’s program. I find from Claimant’s own testimony that the benefits he has reaped from these programs are essentially the same as those he reported the first time he underwent multidisciplinary rehabilitation, namely, an improved ability to manage and control his chronic pain symptoms and somewhat increased cervical range of motion. His radicular symptoms remain unchanged.
Claimant’s Vocational Rehabilitation Efforts and Subsequent Employment Efforts
24. Claimant’s functional restrictions following his February 2000 injury precluded him from returning to his pre-injury job. He subsequently was found entitled to vocational rehabilitation services, and a counselor was assigned to assist him in formulating an appropriate return to work plan. As Claimant had been a very high wage earner, the particular vocational rehabilitation challenge he faced was to identify a path to re-employment that would approximate his pre-injury wages, which averaged almost $3,800.00 per week.
25. After some research, Claimant and his counselor determined that the two avenues most likely to lead to suitable re-employment were either to enroll in a master’s level college program or to undertake another self-employed business venture. Claimant was concerned that pursuing a master’s degree would take several years, and in the meantime it would be difficult for him to support his family financially. For that reason, and also considering his successful track record as the owner and manager of Defendant’s business, he favored the second option.
26. Claimant’s vocational rehabilitation counselor estimated the cost of a master’s level degree program to be in the $15,000-$20,000 range at the University of Vermont, and in the $30,000-$50,000 range elsewhere.
27. After much research, Claimant developed a self-employment business plan that he estimated would generate personal income at or near his pre-injury wages within three years. The plan involved designing and developing a website to market natural foods, personal care products and other “environmentally friendly” goods directly to consumers. Claimant estimated the start-up costs to adequately finance this e-commerce venture at approximately $200,000. According to his business plan, most of these monies ($170,000) would be used to outsource custom website development and on-line marketing to a company with experience in hosting natural products websites.
28. Claimant’s vocational rehabilitation counselor supported his self-employment plan, despite the potential risks associated with any such venture. However, Defendant refused to sign off on the proposal, for reasons that are not clear from the record. Thereafter, Defendant agreed to pay $100,000 in return for a full and final settlement of its obligation to provide further vocational rehabilitation services. Claimant accepted this offer, and in May 2001 the Department approved the settlement.
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29. Notwithstanding that the vocational rehabilitation settlement left his business plan 50 percent underfunded, Claimant opted to proceed anyway. Subsequent decisions placed the start-up in an even more precarious financial position. First, Claimant diverted a sizeable portion of the settlement monies to personal expenses, including his child’s college tuition, his mortgage and car payments. Later, he lost some funds to what he described as a “well-orchestrated scam.” Claimant was able to raise some capital on his own, including a $25,000-$30,000 investment from his primary care physician, Dr. Manchester. He also modified his business plan on the expense side, by identifying less costly ways to market and deliver the products he intended to distribute.
30. Despite his best efforts, Claimant’s e-commerce business never approached the level of success he had envisioned for it. After years in development, the website was operational for a brief period of time in 2005-2006, but made only minimal sales. By 2007 it was defunct.
31. Claimant attributed at least part of the business’ demise to his inability, as a result of his neck pain and radicular symptoms, to spend as much of his own time working on the project as he originally had anticipated. His business plan called for him to devote ten to twelve hours daily on the venture, but as time went on he was able to spend only one or two hours per day on it. Claimant asserted that had he been able to work more closely on designing and fine tuning the website, his outsourcing expenses would have been lower, with the result that it would have been easier for the business to become profitable.
32. Claimant’s assertion is belied by his own business plan, however. As noted above, Finding of Fact No. 27 supra, from the beginning the outsourcing expenses anticipated in that plan were substantial. They accounted for 85 percent of Claimant’s original funding request, and perhaps more importantly, they exceeded the start-up monies he actually received by 70 percent, see Finding of Fact No. 28 supra. With those facts in mind, I find it likely that Claimant’s e-commerce venture failed not because he was physically unable to devote sufficient time to it, but rather because for the duration of its existence it was significantly undercapitalized.
33. Between 2006 and 2009 Claimant neither sought nor engaged in remunerative employment. In 2005 he applied for and was granted social security disability benefits, retroactive to April 2003. In 2009 he passed the licensing exam to become an automobile damage appraiser, but soon realized that the work was too challenging physically for him to sustain.
34. In early 2010 Claimant began working as a substitute teacher for the Enosburgh Town School District, where he resides. His wife had worked as a substitute teacher in the same school district, and within a year had been offered full-time employment. Claimant hoped his employment would progress similarly. He expected that teaching would accommodate his physical restrictions well in terms of maintaining his neck in a neutral posture and being able to move around as necessary.
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35. Claimant was paid on a per diem basis for his substitute teaching assignments, at the initial rate of $70.00 per day. Notwithstanding Defendant’s assertion to the contrary, it is clear from the paystubs admitted into evidence that payroll taxes, including both FICA and Medicare, were deducted. In addition, Claimant testified that the school district issued him a W-2 earnings statement covering these wages at the end of the year, an assertion I have no reason to doubt. Considering this evidence, I find that Claimant was at all relevant times a school district employee, not an independent contractor.2
36. Claimant’s paystubs document substitute teacher earnings from April 19, 2010 through May 27, 2010, a total of $280.00 in gross wages for four full-time equivalent days. During the ensuing school summer vacation, from July 9, 2010 through September 16, 2010 Claimant worked as a security guard at a summer camping area. For the most part, his duties involved canvassing the property in a golf cart, for which he was paid at the rate of $8.25 hourly. Claimant’s gross wages in this employment totaled $1,023.00. Thereafter, Claimant returned to substitute teaching assignments for the Enosburgh Town School District, this time at a per diem rate of $80.00 per day. From September 8, 2010 through December 9, 2010 he earned a total of $1,080.00 in gross wages for 13.5 full-time equivalent days.
37. Claimant has not worked since December 9, 2010. As noted above, Finding of Fact No. 20 supra, on December 17, 2010 he resumed treatment for his neck pain and radicular symptoms with Dr. Manchester, who determined that he was totally disabled from working.
38. Claimant has been minimally active in the years since Dr. Manchester took him out of work. He testified that on a typical day, he drives his wife to work, returns home, feeds the dog, eats breakfast, spends 30 to 45 minutes on the computer, and then naps for one to two hours. He estimated that he might spend another 30 to 45 minutes on the computer in the afternoon before driving to pick up his wife. Occasionally he attends his daughter’s sporting events. He sleeps approximately six hours nightly, but wakes up frequently in pain.
39. While I do not doubt that Claimant is minimally active physically, I find that he likely has underestimated the amount of time he spends at his computer. Considering just the manner in which he has represented himself through the various legal proceedings associated with his workers’ compensation claim, which have encompassed three formal hearing decisions and one Supreme Court appeal in addition to the pending dispute, it is apparent that he is able to focus on complex issues, compose legal memoranda and respond promptly and at length to emails and other correspondence. These activities are at odds with a person who is unable to work at a computer for more than one and a half hours daily.
2 Given what I presume to be the nature of the school district’s business, which is the true test of employee status, see In re Chatham Woods Holdings, LLC, 2008 VT 70 ¶10 (May 16, 2008), it is unlikely that I would have classified Claimant as an independent contractor even had the school district not withheld his payroll taxes appropriately.
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Expert Opinions
40. The parties each presented expert evidence as to (a) the causal relationship between Claimant’s current cervical complaints and his compensable February 2000 work injury; (b) whether his treatment since December 2010 has been curative or palliative; and (c) to what extent, if any, he has been capable of working since that time. In addition, Defendant presented expert testimony as to the impact that Claimant’s past vocational choices has had on his current earning capacity.
(a) Causal Relationship
41. As to the causal relationship between Claimant’s current cervical condition and his February 2000 injury, the expert opinions that each party offered were essentially the same as those presented in the context of Claimant’s 2006 formal hearing, see Finding of Fact Nos. 15-17 supra. Briefly, Claimant’s primary care provider, Dr. Manchester, concurred with Dr. Phillips’ causation analysis – that the February 2000 work injury precipitated a left-sided disc herniation at C6-7, which in turn accelerated the growth of bone spurs and degenerative disease at adjacent levels as well. Thus, according to Dr. Manchester the same work-related injury process that accounted for Claimant’s worsening symptoms and need for treatment in 2003 likewise accounts for his current symptoms and need for treatment.
42. In contrast, Defendant’s expert, Dr. Backus, acknowledged that his causation opinion was in many respects the same as that offered by Dr. Levy in 2003 – that Claimant’s worsening symptoms, both in 2003 and in 2010, were not causally related to his work injury in any respect, but rather represented the natural progression of degenerative disc disease in his cervical spine. That disease process probably had already begun as of the time of Claimant’s February 2000 work injury. According to Dr. Backus’ analysis, while the injury likely resulted in a soft tissue strain and inflammatory response in the area, it did not cause or accelerate any changes to the underlying structures themselves. Thus, in his opinion, at least by 2003 and certainly by 2010 any worsening symptoms were likely due solely to the ongoing progression of the disc disease itself.
(b) Curative versus Palliative Treatment
43. Claimant offered expert opinion evidence from Drs. Manchester, Bono, Naylor and Johansson to the effect that the treatments he has undergone since December 2010 have been curative rather than palliative in nature. In particular, according to these providers, both Dr. Naylor’s Mind-Body Clinic program and Dr. Johansson’s functional restoration program offer treatments that are reasonably likely to result in significant further improvement in his ability to manage his symptoms and return to the level of function he enjoyed previously.
44. Upon careful review, I find that none of Claimant’s providers have adequately explained why the specific treatments Drs. Naylor and Johansson have offered recently are likely to result in lasting improvement when what appear to be very similar programs failed to do so in the past. For that reason, I find the objective support for their opinions lacking.
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45. Dr. Backus acknowledged that Dr. Naylor’s program represented a reasonable treatment, one that likely would increase Claimant’s ability to manage his chronic pain independently. He also supported as reasonable Claimant’s participation in a limited graded exercise program supervised by Dr. Johansson, as a means of guiding him back to an effective home exercise regimen. According to Dr. Backus, however, because Claimant suffers from a chronic, progressively deteriorating condition, neither of these programs is curative; the most either can offer is palliative symptom relief. I accept this reasoning as persuasive.
(c) Claimant’s Work Capacity Since December 2010
46. As noted above, Finding of Fact No. 11 supra, upon completing Dr. Johansson’s functional restoration program in 2001 Claimant had a light to medium work capacity and was capable of full-time sedentary work in a computer-oriented office setting.
47. The medical statement that Dr. Manchester filed in conjunction with Claimant’s 2005 application for social security disability benefits described a far more limited work capacity. As of June 2005 Dr. Manchester estimated that Claimant could neither sit nor stand for more than two hours daily, and was incapable of full-time employment.
48. Notwithstanding this assessment, Claimant was able to resume at least part-time employment in 2010. Although his work as a substitute teacher was sporadic, when he was called in he was able to complete a full day. Similarly, Claimant demonstrated the ability to work regular part-time hours at his summer security guard job. Claimant did not present any credible evidence establishing that prior to December 17, 2010 his inability to work more hours at either job was due to any injury-related disability. It is equally possible that his hours were limited simply because his employers had no more to offer.
49. As noted above, Finding of Fact No. 37 supra, when Claimant’s symptoms worsened in December 2010 Dr. Manchester determined that he was totally disabled from working, an opinion he reiterated shortly before the formal hearing.
50. The evidence does not reveal the specific basis for Dr. Manchester’s opinion as to Claimant’s work capacity, either in 2005, 2010 or currently. It is largely at odds with the capacity he himself demonstrated in the months prior to December 2010. Claimant has not undergone any formal functional capacity testing since completing Dr. Johansson’s program in 2001, more than ten years ago. Lacking objective data as support, I must question Dr. Manchester’s conclusions.
51. Based both on his January 2012 independent medical examination and on Claimant’s description of his daily living activities, Dr. Backus determined that he is capable of sustaining full-time sedentary to light work. As with Dr. Manchester’s opinion, I would have more confidence in Dr. Backus’ conclusions were they supported by formal functional capacity testing. Nevertheless, based both on Dr. Backus’ analysis and on my own observations of Claimant as a pro se litigant, I find it likely that he currently has at least a part-time sedentary work capacity.
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(d) Claimant’s Earning Capacity
52. Fran Plaisted, a certified vocational rehabilitation counselor, offered her expert opinion as to Claimant’s earning capacity in the years since his February 2000 work injury. Ms. Plaisted is a fellow of the American Board of Vocational Experts. In formulating her opinion, she interviewed Claimant and reviewed his medical and vocational history.
53. Ms. Plaisted’s analysis focused primarily on what Claimant’s vocational rehabilitation options might have been had he not chosen to pursue self-employment. Generally, she explored two alternative paths – one using his existing skills, training and experience, the other assuming some level of academic retraining. In both instances, she assumed a full-time sedentary to light work capacity, in accordance with Dr. Backus’ opinion.
54. In Ms. Plaisted’s opinion, as a successful business owner for more than 15 years prior to his injury, Claimant has extensive experience in sales and management. These transferable skills qualify him for employment as a sales representative or manager, with an average annual salary in northern Vermont in the $55,000 to $75,000 range.
55. Alternatively, Claimant could have combined his undergraduate focus on engineering with his extensive experience in electrical installation to seek either a bachelor’s or master’s degree in electrical engineering. The costs associated with this plan would have been largely covered by the $100,000 vocational rehabilitation settlement he received, and would have yielded a current earning capacity ranging from $71,000 to $95,000 annually.
56. With these vocational alternatives in mind, Ms. Plaisted concluded that neither of the jobs Claimant held in 2010 accurately reflected his actual earning capacity. Notwithstanding his injury-related physical limitations, in her opinion Claimant was underemployed as both a substitute teacher and as a summer security guard. Even assuming that Claimant might be capable of only part-time as opposed to full-time sedentary work, I find this analysis credible.
Mileage Reimbursement
57. By letter dated January 12, 2012 Claimant provided a detailed accounting of his claim for mileage reimbursement to both the Department and to Defendant. For travel to and from doctor’s appointments and in accordance with Workers’ Compensation Rule 12.2100, Claimant claimed a total of $464.92 in mileage charges incurred between March and September 2005, a total of $159.76 in charges incurred between August 29, 2006 and October 17, 2006, and a total of $402.14 in charges incurred from December 17, 2010 through December 14, 2011.
58. Defendant has objected to the 2005 and 2006 charges on the grounds that they are barred by the applicable statute of limitations.
CONCLUSIONS OF LAW:
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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).
Causal Relationship
2. The first disputed issue in this claim is whether Claimant’s cervical symptoms and need for treatment since December 2010 are causally related to his compensable February 2000 work injury. This is a medical question, upon which the parties presented conflicting expert opinions. In such situations, 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).
3. I conclude here that Dr. Manchester’s opinion as to the causal relationship between Claimant’s original injury and the ongoing disc degeneration in his cervical spine is more credible than Dr. Backus’. As his primary care provider for many years, Dr. Manchester has been well positioned to observe the progression of Claimant’s cervical condition over time. His causation theory – that the work injury caused a C6-7 disc herniation, which in turn accelerated the growth of bone spurs and degeneration at adjacent levels – is essentially the same one that Dr. Phillips previously espoused as the explanation for Claimant’s worsening symptoms in 2003. For the same reasons that led the commissioner to accept Dr. Phillips’ analysis as objectively supported and credible in 2006, I accept Dr. Manchester’s opinion as persuasive here.
4. Had Dr. Backus propounded a causation theory that effectively distinguished Claimant’s current condition without denying either the injury Defendant accepted in 2001 or the one the commissioner found compensable in 2006, I might view his opinion more favorably. Instead, his analysis relies at its core on the assumption that Claimant’s February 2000 work injury was a soft tissue strain that neither caused nor accelerated any disc herniation or disease. This assumption is at odds with Defendant’s own conduct dating back at least to 2001, when it paid permanency benefits for what Dr. Johansson diagnosed as a work-related cervical disc herniation. It also is at odds with the commissioner’s determination in 2006 that the work injury had accelerated Claimant’s degenerative disc disease. The time has long since passed for Defendant to proffer an entirely new explanation for what is now a twelve-year-old injury. See, e.g., Coronis v. Granger Northern, Inc., Opinion No. 16-10WC (April 27, 2010). For that reason, I reject Dr. Backus’ opinion as unpersuasive.
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5. I conclude that Claimant has sustained his burden of proving that, as was the case in 2003, his worsened cervical condition in 2010 was caused or accelerated at least in part by his February 2000 work injury and is therefore compensable.
Temporary Total Disability
6. Having concluded that Claimant’s worsened cervical symptoms since December 17, 2010 are causally related to his original injury, I next consider his claim for temporary total disability benefits.
7. Temporary disability benefits are only payable for so long as the medical recovery process is ongoing. Bishop v. Town of Barre, 140 Vt. 564, 571 (1982). Once an injured worker reaches an end medical result, his or her entitlement to temporary disability benefits ends, and the focus shifts instead to consideration of permanent disability. Id.
8. End medical result is defined as “the point at which a person has reached a substantial plateau in the medical recovery process, such that significant further improvement is not expected, regardless of treatment.” Workers’ Compensation Rule 2.1200. The fact that some treatments, such as pain medications, physical therapy or chiropractic manipulations, may continue to provide palliative symptom relief does not negate a finding of end medical result so long as the underlying condition itself remains unlikely to improve. Coburn v. Frank Dodge & Sons, 165 Vt. 529, 533 (1996). This is particularly true in cases involving chronic pain, where the injury itself has become stable even though the pain it precipitates may continue to wax and wane over time. See 4 Lex K. Larson, Larson’s Workers’ Compensation §80.03[3] (Matthew Bender, Rev. Ed.), cited with approval in Coburn, supra; see also Workers’ Compensation Rule 2.1310 (defining palliative care). Were the rule otherwise, an end medical result might never be possible in such cases.
9. Considering these concepts in the context of the current claim, the question is whether the treatment Claimant has received since December 2010 is properly characterized as palliative or curative. If the latter, then he cannot be deemed to be at end medical result until he completes his current course of treatment, and in the meantime temporary disability benefits must be reinstated. If the former, then he remains at end medical result and is therefore not entitled to additional temporary disability benefits. Coburn, supra at 532.
10. Aside from a brief course of physical therapy, the goal of the treatments at issue here were first, to re-evaluate Claimant’s surgical options, and second, to restore some degree of lost function through multidisciplinary rehabilitation. As to the first, I conclude that for two new surgeons to essentially reiterate the same risk-benefit analysis that numerous equally qualified surgeons had stated before does not rise to the level of curative treatment necessary to negate end medical result.
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11. As for multidisciplinary rehabilitation, I am aware of other cases in which treatments directed at improving a claimant’s function have been held to negate a finding of end medical result, even though the underlying medical condition itself may have become stable. See, e.g., Cochran v. Northeast Kingdom Human Services, Opinion No. 31-09WC (August 12, 2009). Were this Claimant’s first course of such treatment, I might view his situation in the same light. But the fact is Claimant has traveled this road before, and realized only temporarily increased function as a result. Under these particular circumstances, I conclude that for him to undergo another course of functional restoration-type treatment represents palliative, not curative, care.
12. I conclude that notwithstanding the treatments he has undergone since December 17, 2010 Claimant has remained at end medical result. Therefore, he is not entitled to temporary disability benefits for any period of time since that date.
Average Weekly Wage for Subsequent Periods of Disability
13. It is possible that Claimant might become entitled to temporary total disability benefits at some future date, for example, if ultimately he elects to undergo surgery necessitated by his original injury. For that reason, I next consider how his average weekly wage for a subsequent period of disability should be calculated.
14. According to 21 V.S.A. §650(c), when an injured worker’s temporary disability occurs in separate intervals rather than as one continuous period, the applicable compensation rate must be adjusted “to reflect any increases in wages or benefits prevailing at that time.” Historically the Department has interpreted this language to mandate that a claimant’s compensation rate can only be adjusted upward, that is, when his or her wages have increased since a prior period of disability, but never downward, that is, to reflect a decrease in wages during the intervening period. See, e.g., Bollhardt v. Mace Security International, Inc., Opinion No. 51-04WC (December 17, 2004).
15. More recently, the commissioner has differentiated between situations where a claimant’s decreased wages are shown to have resulted from his or her work injury and those where they are due instead to personal choices or economic factors. See, e.g., Plante v. State of Vermont Agency of Transportation, Opinion No. 24-12WC (September 14, 2012); Griggs v. New Generation Communications, Opinion No. 30-10WC (October 1, 2010). Where the work injury itself accounts for a subsequent reduction in earnings, the average weekly wage for a subsequent period of disability should reflect the earlier, higher wages. Id. This is in keeping with the spirit of workers’ compensation – to provide wage replacement benefits that compensate fully for an injured worker’s diminished earning capacity. Orvis v. Hutchins, 123 Vt. 18, 22 (1962). But where the reduced earnings are due to other, unrelated circumstances, using the earlier wages would amount to wage enhancement, not wage replacement, and a windfall not envisioned by the statute.
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16. I acknowledge here that as a result of his original injury Claimant was unable to resume his prior work activities, for which he had been highly compensated. He asserts that it is because of his injury-related functional limitations that he has been unable to find and maintain similarly lucrative employment since then. I disagree. Claimant himself chose the career path upon which he embarked following his injury, one that his treating physician declared him physically capable of performing. That the e-commerce venture he pursued ultimately failed was a consequence of business and financial limitations, not physical or functional ones. Thus, I conclude that the diminution in Claimant’s wages during the time that he was pursuing his e-commerce business was due to non-injury-related factors.
17. It is mostly pointless to engage in a game of “what might have been” had Claimant either availed himself of different vocational rehabilitation resources or applied his settlement monies differently. Suffice it to say, by taking the path that he did, from an average weekly wage perspective I conclude that Claimant has severed the causal link between his current earning capacity and his work injury, such that his pre-injury wages are no longer relevant to his average weekly wage calculation.
Mileage Reimbursement
18. Last, I consider Claimant’s claim for mileage reimbursement. At the time of Claimant’s injury, the applicable statute of limitations was six years. 21 V.S.A. §660(a).3 As Claimant first specified his mileage reimbursement claim on January 12, 2012, any mileage expenses that were incurred more than six years prior to that date are now time barred.
19. I conclude that the mileage expenses Claimant incurred in 2005 are now time barred. Those incurred in 2006 and 2010, totaling $561.90, should be applied against the credit Defendant previously was awarded in Knoff v. Josef Knoff Illuminating, Opinion No. 13-11WC (June 2, 2011), affirmed, Knoff v. Josef Knoff Illuminating, Supreme Court Docket No. 2011-239 (December Term, 2011).
3 The statute was amended in 2004 to reduce the limitations period to three years. As a substantive amendment, the new limitations period cannot be applied to already pending injury claims. Myott v. Myott, 149 Vt. 573, 575-76 (1988). Beyond that, by its own terms the amended statute mandated that the shorter limitations period “not be construed to limit subsequent claims for benefits stemming from a timely filed work-related injury claim.” For these reasons, I conclude that the limitations period applicable to Claimant’s mileage claim is six years, as dictated by the pre-amendment statute.
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ORDER:
Based on the foregoing findings of fact and conclusions of law:
1. Claimant’s claim for temporary total disability benefits retroactive to December 17, 2010 is hereby DENIED;
2. Defendant is hereby ORDERED to offset its previously awarded credit by a total of $561.90 in mileage expenses incurred through December 14, 2011.
DATED at Montpelier, Vermont this 15th day of October 2012.
_________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Selajdin Sadriu v. The Home Depot (February 23, 2012)

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

Selajdin Sadriu v. The Home Depot (February 23, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Selajdin Sadriu Opinion No. 07-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
The Home Depot
For: Anne M. Noonan
Commissioner
State File No. Y-50633
OPINION AND ORDER
Hearing held in Montpelier, Vermont on December 5, 2011
Record closed on January 13, 2012
APPEARANCES:
Selajdin Sadriu, pro se
Christopher Callahan, Esq., for Defendant
ISSUES PRESENTED:
1. Was Defendant justified in discontinuing Claimant’s temporary total disability benefits effective March 24, 2011 on the grounds that he had failed to conduct a good faith search for suitable work?
2. Was Defendant justified in discontinuing Claimant’s temporary total disability benefits effective June 25, 2011 on the grounds that he had reached an end medical result?
EXHIBITS:
Claimant’s Exhibit 1: Job search logs
Claimant’s Exhibit 2: Dr. Braun Consultation Summary, April 4, 2011
Claimant’s Exhibit 3: Dr. Krag After-Visit Summary, November 9, 2011
Claimant’s Exhibit 4: English language instruction log
Defendant’s Exhibit A: Medical records (CD)
Defendant’s Exhibit B: Letter from Attorney Callahan, March 1, 2011
Defendant’s Exhibit C: Letter from Anne Coutermarsh, March 14, 2011
Defendant’s Exhibit D: Letter from Attorney Callahan, March 14, 2011
Defendant’s Exhibit E: Leunig’s Bistro employment application
Defendant’s Exhibit F: Letter from Anne Coutermarsh, May 4, 2011
Defendant’s Exhibit G: Letter from John May, April 1, 2010 [sic]
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Defendant’s Exhibit H: Letter from Attorney McVeigh, June 17, 2011
Defendant’s Exhibit I: Payment history
CLAIM:
Temporary total disability benefits retroactive to March 30, 2011 and continuing, pursuant to 21 V.S.A. §642
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant worked for Defendant as a stock clerk. His primary language is Albanian, though he is able to speak, comprehend and read English to at least a limited extent. He was assisted by an Albanian interpreter at the formal hearing.
4. On July 8, 2006 Claimant injured his lower back while lifting at work. Defendant accepted this injury as compensable and began paying workers’ compensation benefits accordingly.
5. Claimant’s symptoms failed to respond to conservative therapies. In April 2007 he underwent L4-5 disc surgery. After a prolonged recovery, in September 2008 he returned to work for Defendant.
6. Following his return to work Claimant’s symptoms gradually recurred. After some time he left Defendant’s employment and began working instead as a cab driver. By April 2010 his symptoms had progressed to the point where he was again unable to work.
7. Defendant initially denied responsibility for Claimant’s renewed disability, but did not appeal when the Department ordered it to resume temporary total disability benefits as of April 27, 2010.
8. In October 2010 Claimant underwent L4-5 fusion surgery with Dr. Braun, an orthopedic surgeon. Since the surgery his low back pain has improved; however, he continues to experience constant pain radiating into his right hip, thigh and leg. The pain worsens with prolonged sitting or driving, and interferes with his sleep. Claimant is able to walk, and in fact that activity is less bothersome than either sitting or standing in a static position for an extended period of time.
Defendant’s March 2011 Discontinuance
9. At Defendant’s request, in February 2011 Claimant underwent an independent medical examination with Dr. White, a specialist in occupational medicine. Dr. White determined that Claimant’s ongoing symptoms were causally related to his July 2006 work injury and
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that his medical treatment to date had been reasonable and necessary. He further determined that Claimant had not yet reached an end medical result.
10. As to work capacity, Dr. White concluded that Claimant’s injury was only partially disabling. He recommended that Claimant return to work in a position that would allow him to sit, stand and change positions as necessary, with restrictions against heavy or repetitive lifting and bending or twisting. In imposing these restrictions, Dr. White noted that they were based solely on Claimant’s symptom tolerance, not on any specific anatomical or physiologic factor per se. Dr. White also encouraged Claimant to walk as much as tolerable.
11. On March 1, 2011 Defendant notified Claimant by letter of his obligation, pursuant to Workers’ Compensation Rule 18, to conduct a good faith search for suitable work in accordance with Dr. White’s February 2011 report, or else risk termination of his workers’ compensation benefits. Defendant enclosed a job search log for Claimant to complete and submit weekly, documenting between ten and twenty contacts each time.
12. Two weeks after receiving Defendant’s Rule 18 notification, on March 14, 2011 Claimant telephoned the Department’s workers’ compensation specialist to inquire whether he was in fact obligated to seek work in accordance with Dr. White’s report. The specialist confirmed that he was. As reflected in the specialist’s letter to both parties dated that same day, Claimant asserted that he would not search for work until his next scheduled follow-up evaluation with Dr. Braun, his treating orthopedic surgeon, on April 4, 2011.
13. Claimant having failed to submit any job search logs up to that point, and having indicated that he would not immediately commence to do so, Defendant filed a Notice of Intention to Discontinue Benefits (Form 27), which the Department approved effective March 24, 2011. Defendant’s final temporary total disability check paid Claimant through March 30, 2011.
14. As scheduled, Claimant followed up with Dr. Braun on April 4, 2011. Dr. Braun noted that while Claimant’s low back pain had improved significantly, his right leg pain continued. As to his work capacity and Dr. White’s report, Dr. Braun remarked:
[Claimant] did request additional time off work given his persistent symptoms, and I gave him a form for this. [Claimant] may indeed need a formal disability exam if he is not able to return to work in 3 months. He did have an IME recently that suggested he should be actively looking for work but he states that he is not able to do this as he is not able to sit in a car for a prolonged period of time.
15. The form referred to in Dr. Braun’s remarks was a one-page “Consultation Summary,” in which he stated, “Claimant is recovering from a lumbar fusion surgery and is not ready to return to work” until July 5, 2011. Dr. Braun did not otherwise explain why in his opinion Claimant was unable to seek work within the restrictions that Dr. White had suggested.
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16. As for further treatment, Dr. Braun recommended reconditioning exercises and possibly an epidural steroid injection to reduce Claimant’s leg pain. The latter treatment was not immediately scheduled, presumably to give Claimant additional time either to improve and/or to consider his treatment options.
17. Between mid-March and mid-June 2011 Claimant submitted various job search logs, ostensibly documenting his efforts to find work. Many of the log entries were incomplete, unverifiable or otherwise deficient; in one instance, for example, the same telephone number was listed for two entirely separate and unaffiliated employers. Between the logs themselves and Claimant’s conflicting and confusing formal hearing testimony, it is impossible to decipher which of the listed employers he actually contacted, and for which jobs he actually submitted applications. At least one application that he did submit (a copy of which Defendant introduced at hearing) was completed in such haphazard fashion that it could not possibly have led to employment.
18. Having been determined eligible for vocational rehabilitation services, from February through July 2011 Claimant was assisted in his job search efforts by John May, a certified vocational rehabilitation counselor. Mr. May informed Claimant of local job fairs, instructed him as to completing Defendant’s job search log and provided specific job leads. One such lead was for a delivery driver at a Domino’s Pizza that was only one mile from Claimant’s house. Because Claimant had experience as a cab driver and was not restricted from driving, Mr. May thought this to be a particularly good opportunity for him. Unfortunately, Claimant failed to apply for the position. Nor did he attend any of the job fairs or follow up on the contacts Mr. May forwarded to him thereafter.
19. Mr. May also suggested that Claimant enroll in free English classes, offered weekly at the local library, as a means of enhancing his employability. Claimant attended four such classes and then stopped.
20. Mr. May testified that in his opinion Claimant did not participate in the vocational rehabilitation process to the extent necessary to establish that he was making a good faith search for suitable work. Based on the evidence presented, I concur.
Defendant’s June 2011 Discontinuance
21. At Defendant’s request, in June 2011 Claimant underwent a second independent medical examination with Dr. White. Dr. White reported that Claimant was anticipating another consultation with Dr. Braun, that spinal injections might be offered and that “further investigation” might lead to a plan for another surgical procedure. Notwithstanding these potentially ameliorative treatments, Dr. White determined that Claimant had reached an end medical result, with a 22 percent whole person permanent impairment referable to his lower back.1
1 Of the 22 percent rated, 10 percent had been paid in accordance with a previous impairment rating done in 2009. Pursuant to the Department’s interim order, on July 1, 2011 Defendant began making weekly payments on the remaining 12 percent due in accordance with Dr. White’s rating.
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22. With Dr. White’s June 2011 report as support, the Department approved Defendant’s discontinuance of Claimant’s temporary total disability benefits on end medical result grounds effective June 25, 2011.
23. Claimant did in fact consult again with Dr. Braun, in August 2011. Subsequently he underwent a spinal injection, both to help diagnose the source of his radiating pain and to provide some therapeutic relief. Most recently, in October and November 2011 Claimant underwent a surgical consult with Dr. Krag. Dr. Krag has rejected surgery as an appropriate treatment option for Claimant’s current symptoms. Instead he has recommended that Claimant be evaluated for possible entry in an interdisciplinary rehabilitation program.2 Claimant was scheduled to undergo this evaluation within days after the formal hearing.
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. Once a claim has been accepted and benefits have been paid, the party seeking to discontinue bears the burden of proving that it is proper to do so. Merrill v. University of Vermont, 133 Vt. 101, 105 (1974); Luff v. Rent Way, Opinion No. 07-10WC (February 16, 2010).
3. Defendant here asserts two grounds for discontinuing Claimant’s temporary disability benefits – first, that he failed to conduct a good faith search for suitable work once released to do so; and second, that he reached an end medical result for his work-related injury.
4. Discontinuances based on a claimant’s failure to conduct a good faith search for suitable work are governed by Workers’ Compensation Rule 18.1300. Underlying any such discontinuance there must be credible evidence establishing that it is medically appropriate for the claimant to return to work, either with or without restrictions. Worker’s Compensation Rule 18.1310.
2 Dr. Krag’s brief “After Visit Summary” includes the following remark as to Claimant’s work capacity: “Temporary total disability until at least completion of the [interdisciplinary evaluation].” As discussed infra, Conclusion of Law No. 5, I consider this statement to have the same weight as that accorded Dr. Braun’s April 2011 disability determination, see Finding of Fact No. 15 supra.
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5. I conclude that Dr. White’s February 2011 report and opinion as to Claimant’s work capacity constitutes sufficiently credible medical evidence to establish Claimant’s obligation to seek suitable work. In reaching this conclusion, I must discount both Dr. Braun’s and Dr. Krag’s conclusory statements to the contrary. Dr. Braun’s statement is particularly troublesome because it appears to have been motivated at least in part by Claimant’s own preference to remain off work rather than by a well-reasoned medical determination as to his work capacity. Beyond that, merely stating that a patient is “not ready to return to work” or is “totally disabled” is unlikely to be persuasive in cases such as this one, where the claimant obviously retains the ability to engage in at least some work-related activities. See, e.g., Lewia v. Stowe Motel, Opinion No. 19-11WC (July 25, 2011).
6. Having concluded that it was medically appropriate for Claimant to return to work, I further conclude that he failed to conduct a good faith search for suitable work once Defendant informed him of his obligation to do so. At best he was passive and inept; at worst, he was non-compliant. In either case, his actions fell far short of what reasonably should be expected of someone who is truly invested in the process of finding a job.
7. I conclude that Defendant was justified in terminating Claimant’s temporary total disability benefits effective March 24, 2011 on the grounds that he had failed to conduct a good faith search for suitable work.
8. Provided a claimant has not yet reached end medical result, benefits that were discontinued for failure to conduct a good faith search for suitable work can be reinstated once he or she engages appropriately in the job search process. Lewia, supra. With that in mind, it is necessary to consider Defendant’s alternate ground for discontinuing Claimant’s temporary disability benefits – that he reached an end medical result for his work-related injury in June 2011. I conclude that he did not.
9. Vermont’s workers’ compensation rules define “end medical result” as “the point at which a person has reached a substantial plateau in the medical recovery process, such that significant further improvement is not expected, regardless of treatment.” Workers’ Compensation Rule 2.1200. If reasonable treatment options exist that might yet yield positive results once they are adequately explored, then the claimant has not yet reached end medical result. Coburn v. Frank Dodge & Sons, 165 Vt. 529, 533 (1996); Luff v. Rent Way, Opinion No. 07-10WC (February 16, 2010).
10. In this case, Dr. White determined that Claimant had reached an end medical result by June 2011, but even he acknowledged that further treatment options were still under consideration, including possibly another surgery. Dr. White thus negated his own end medical result determination. And although surgery now has been ruled out, as of the date of the formal hearing Claimant had yet to be evaluated for possible entry into an interdisciplinary rehabilitation program. This is another treatment option that, until adequately investigated, might well preclude a finding of end medical result. Cochran v. Northeast Kingdom Human Services, Opinion No. 31-09WC (August 12, 2009).
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11. I conclude that Defendant has failed to sustain its burden of proving that Claimant had reached an end medical result by June 25, 2011. Its discontinuance of benefits on those grounds, therefore, was inappropriate.
12. In sum, I conclude that Defendant was justified in discontinuing Claimant’s temporary disability benefits on the grounds that he had failed to conduct a good faith search for suitable work, but not on the grounds that he had reached an end medical result. Should Claimant re-engage in the job search process at any time before he reaches an end medical result, Defendant will be obligated to reinstate his benefits accordingly. Lewia, supra. Defendant also remains obligated to pay for all reasonable and necessary medical services and supplies causally related to Claimant’s compensable work injury.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for temporary total disability benefits retroactive to March 30, 2011 and continuing is DENIED.
DATED at Montpelier, Vermont this 23rd day of February 2012.
_________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Stephen Duffy v. Sisler Builders Inc (August 28, 2013)

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

Stephen Duffy v. Sisler Builders Inc (August 28, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Stephen Duffy Opinion No. 20-13WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Sisler Builders, Inc.
For: Anne M. Noonan
Commissioner
State File No. H-06654
OPINION AND ORDER
No hearing held; claim submitted on written records and briefs
Record closed on July 8, 2013
APPEARANCES:
Stephen Duffy, pro se
Bonnie Badgewick, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant entitled to temporary total disability benefits referable to his
April 12, 2013 surgery?
2. If yes, at what compensation rate should such benefits be paid?
EXHIBITS:
Joint Exhibit I: Medical records
Defendant’s Exhibit 1: Letter from Claimant, July 25, 2012
Defendant’s Exhibit 2: Income tax returns, 2011 and 2012
Defendant’s Exhibit 3: Records relating to Claimant’s Arizona workers’
compensation claims
CLAIM:
Temporary total disability benefits commencing on April 12, 2013 and ongoing, pursuant
to 21 V.S.A. §642
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Interest pursuant to 21 V.S.A. §664
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 worked for Defendant as a carpenter. On August 3, 1994 he dislocated
his left big toe while at work. Defendant accepted the injury as compensable and
began paying workers’ compensation benefits accordingly.
4. Claimant underwent surgery on his left big toe in May 1996, as a result of which
Defendant paid temporary total disability benefits from May 10, 1996 until his
return to work on June 12, 1996. Subsequently Defendant paid permanency
benefits in accordance with a 1.5 percent permanent impairment rating referable
to the left foot.
5. At some point thereafter, Claimant relocated to Arizona, where he currently
resides.
6. As of January 3, 2007 Claimant was employed by Omni Cabinets, located in
Scottsdale, Arizona, as a cabinet installer. On that date, he suffered a workrelated
injury to his right knee. As a consequence of that injury, on February 8,
2007 he underwent arthroscopic surgery to repair a torn medial meniscus. By
March 26, 2007 he had reached an end medical result and returned to full duty
work.
7. In its June 19, 2007 Findings and Award for Unscheduled Permanent Partial
Disability, the Industrial Commission of Arizona concluded that Claimant’s
earning capacity had not been reduced to any extent as a result of his January
2007 work injury. Pursuant to Arizona law, it awarded permanent compensation
benefits in accordance with a seven percent permanent impairment of the right
knee, as rated by Claimant’s treating orthopedic surgeon.
8. In April 2011 Claimant resumed treatment for his 1994 work injury, complaining
of pain and swelling in both his left big toe and left ankle. Ultimately he was
diagnosed with three problems: (1) a ganglion cyst in his left ankle; (2)
degenerative changes resulting in stiffness in the joints of his big toe; and (3) a
ruptured tendon in his left ankle. According to his treating orthopedic surgeon,
Dr. Armendariz, the first two conditions were likely caused and/or aggravated by
his original work injury. In Dr. Armendariz’ opinion, the third condition was
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related as well, though he could not state this to the same degree of medical
certainty.
9. After resuming treatment for his left toe and ankle symptoms, in 2012 Claimant
also began treating again for recurrent symptoms referable to his January 2007
right knee injury, for which another employer, not Defendant, bore responsibility.
See Finding of Fact No. 6 supra. On April 27, 2012 he underwent a second right
knee surgery, as a result of which he was totally disabled from working until
August 27, 2012. Thereafter, he was released to return to modified duty work.
On March 4, 2013 his treating physician determined that he had reached an end
medical result for his right knee injury, with permanent restrictions that precluded
him from resuming construction or cabinet installation work as before.
10. Claimant’s medical records do not document any disability from working causally
related to his left toe and/or ankle problems until March 11, 2013. On that date,
Dr. Armendariz placed him on limited duty status, with restrictions against
climbing stairs and sustained walking or standing. Prior to that time, none of the
providers who treated those conditions ever disabled him from working, either
totally or partially.
11. On April 12, 2013 Claimant underwent surgery on his left toe and ankle.
Defendant voluntarily accepted responsibility for those portions of the surgery
that addressed the ganglion cyst in his ankle and the degenerative changes in his
toe. It continues to dispute responsibility for the tendon tear, but has agreed to
pay for that portion of the surgery as well, on a without prejudice basis.
12. It appears from the record that as a consequence of his right knee injury Claimant
received temporary disability benefits under Arizona law between April 27, 2012
and March 4, 2013. It is unclear from the record exactly for what periods and in
what amounts these wage replacement benefits were paid. What is clear is that
during the 26 weeks preceding any total disability causally related to his left toe
and ankle surgery, that is, from October 13, 2012 until April 12, 2013, Claimant
did not work, and therefore did not earn any wages at all.
13. As reflected in both the contemporaneous medical records and his federal income
tax returns, in 2011 and 2012 Claimant variously described his work status as
either a self-employed carpenter or as unemployed. His wife reported taxable
wages from her employment in both years, but Claimant did not report any
taxable wages or self-employment income in either year.
14. In a July 2012 letter to Defendant’s adjuster, Claimant confirmed that he had
earned no wages at all during the previous six months. In his pretrial pleadings,
he acknowledged having taken some time off to mourn his father’s death and
settle his estate, but from the evidence submitted I am unable to discern whether
this occurred during the period when he was disabled from working as a
consequence of his knee injury or at some point previously.
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15. Although not specifically documented in the medical records, for the purposes of
the pending dispute I presume that Claimant was totally disabled from working
for at least some time after his April 12, 2013 left toe and ankle surgery. The
record does not reflect whether he remains totally disabled to date or whether he
has since regained some partial work capacity.
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 issue presented in this claim is whether Claimant should be disqualified from
receiving temporary disability benefits as a consequence of his April 2013 left toe
and ankle surgery because he did not earn any wages in the preceding weeks.
Defendant argues that if no wages were earned, there is nothing to replace, and
therefore no basis for an award. Claimant argues that the temporary disability
benefits he was receiving on account of his right knee injury in the months prior
to his April 2013 surgery were themselves “wage replacement” benefits and
therefore should be counted as “wages.”
3. An injured worker is entitled to temporary total disability benefits “where the
injury causes total disability for work.” 21 V.S.A. §642. These benefits are
payable “during such disability,” id., and cease “after such disability ends.” 21
V.S.A. §643.
4. Defendant correctly asserts that temporary total disability benefits are designed to
replace the wages an injured worker likely would be earning had his or her work
injury not occurred. Because their purpose is to compensate for the worker’s
current inability to work, they are calculated with reference to his or her present
earning capacity. Orvis v. Hutchins, 123 Vt. 18, 22 (1962).
5. Under Vermont’s statutory scheme, an injured worker’s present earning capacity
is determined by reviewing his or her “average weekly earnings during the 26
weeks preceding an injury[.]”1 Thus, our workers’ compensation law assumes
1 At the time of Claimant’s original injury in 1994, the calculation period for determining average weekly
wage was only 12 weeks. The statute was amended in 2008 to allow for the current 26-week time frame.
Both parties apparently have assumed that the 26-week calculation period applies here, though neither has
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that the most accurate way to estimate a worker’s present earning capacity is to
look back at his or her most recent past earnings. Machia v. Comet
Confectionery, Opinion No. 32-07WC (December 4, 2007).
6. When an injured worker has not earned any wages at all during the weeks
preceding a period of total disability, it is appropriate to question whether he or
she is entitled to wage replacement benefits. Unless the evidence establishes that
the failure to earn wages was the result of an injury-related consequence rather
than a personal choice, in most cases no benefits will be due. See, e.g., Bacon v.
Gerald E. Morrissey, Inc., Opinion No. 32-11WC (October 12, 2011); Giacobbe
v. Verizon, Opinion No. 72-05WC (December 30, 2005); Knoff v. Joe Knoff
Illuminating, Opinion No. 39-05WC (July 12, 2005); see also, Plante v. State of
Vermont Agency of Transportation, Opinion No. 19-13WC (August 22, 2013)
(applying same analysis to compensation rate computation for successive period
of disability); Griggs v. New Generation Communications, Opinion No. 30-10WC
(October 1, 2010) (same).
7. In this case, Claimant asserts that his failure to earn wages in the weeks prior to
his April 2013 surgery was not due to any personal choice or voluntary decision
on his part, but rather to a disabling work-related medical condition, albeit one
caused by a different injury than the one for which Defendant is responsible. He
points to the commissioner’s holding in Machia, supra, as support for a somewhat
different outcome in this limited circumstance.
8. The facts in Machia were in many respects similar to those presented here. As
here, the claimant in that case suffered two distinct injuries – one to her knee, the
other to her shoulder – as a result of two distinct work-related events occurring
some years apart, and for which two distinct insurance carriers were liable. When
ultimately she required repeat surgery for her knee injury, it was delayed while
she recovered from surgery on her shoulder. The shoulder surgery having
disabled her from working for more than a year, she earned no wages in the
months prior to her knee surgery. Her sole source of income during that period
were the temporary disability benefits paid on account of her shoulder, which
were based on the wages she had earned before either injury became disabling.
9. The commissioner concluded that the claimant was not barred from receiving
additional temporary total disability benefits following her knee surgery despite
having earned no wages for many months previously. In doing so, the
commissioner placed specific emphasis on the fact that the claimant had returned
to work after each prior period of disability as soon as she was released to do so.
briefed the question whether the amendment more properly should be deemed substantive rather than
procedural, in which case the 12-week period applicable at the time of the original injury would control.
See Sanz v. Douglas Collins Construction, 2006 VT 102; Smiley v. State of Vermont, Opinion No. 15-
13WC (June 3, 2013). Given the context in which the current dispute arises, and the fact that Claimant
earned no wages within either the 12- or 26-week period prior to his current disability, it is not necessary to
decide the issue here.
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With this track record, it was reasonable to presume that but for the shoulder
injury she would have been working – to the same extent that she had in the past –
up until the date when she became disabled on account of the knee injury. To
penalize her for being unable to do so because of a work-related medical
condition rather than a personal choice would have been inconsistent with the
remedial character of Vermont’s Workers’ Compensation Act. Id. at Conclusion
of Law Nos. 13-14; Morrisseau v. Legac, 123 Vt. 70, 77 (1962).
10. The facts in this case establish no such track record, and therefore permit no such
presumption. Here, Claimant’s 2011 and 2012 federal income tax returns, in
which he reported neither taxable wages nor income from self-employment,
document that he ceased earning wages well before April 2012, when his
recurrent knee problems first became disabling. Not even the exception carved
out in Machia permits an award of wage replacement benefits under these
circumstances.
11. I conclude that Claimant has failed to sustain his burden of proving that but for
his work-related right knee injury he would have been working in the weeks prior
to his April 2013 left toe and ankle surgery. As it is, even looking back more than
a year prior to any medically established disability I can find no wages to be
replaced. For this reason, I conclude that he is not entitled to temporary disability
benefits.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for
temporary total disability benefits referable to his April 12, 2013 surgery is hereby
DENIED.
DATED at Montpelier, Vermont this 28th day of August 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.

Zewo Maluk v. Plastic Technologies of Vermont (February 5, 2013)

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

Zewo Maluk v. Plastic Technologies of Vermont (February 5, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Zewo Maluk Opinion No. 06-13WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Plastic Technologies
of Vermont For: Anne M. Noonan
Commissioner
State File No. DD-61908
OPINION AND ORDER
Hearing held in Montpelier on December 3, 2012
Record closed on December 17, 2012
APPEARANCES:
Zewo Maluk, pro se
John Valente, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant entitled to temporary total disability benefits as a consequence of his November 30, 2011 work injury?
EXHIBITS:
Defendant’s Exhibit A: Medical records
Defendant’s Exhibit B: Timecard Report
Defendant’s Exhibit C: Letter to Claimant, March 30, 2012
Defendant’s Exhibit D: Check register, pay date 12/23/2011
Defendant’s Exhibit E: Check register, pay date 12/09/2011
CLAIM:
Temporary total disability benefits for the period from December 13, 2011 through March 24, 2012 pursuant to 21 V.S.A. §642
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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 worked for Defendant as a machine operator. His scheduled work hours were from 2:00 PM until 10:30 PM daily. His attendance was recorded by swiping a time card through a time clock.
4. On the evening of Wednesday, November 30, 2011 Claimant injured his left hand when a machine part fell on it while he was cleaning. He finished his scheduled shift and went home. His hand was swollen and painful. Later that night, he sought treatment at the hospital emergency room, where he was diagnosed with a wrist contusion and discharged without medications.
5. Claimant appeared for his scheduled shift the next day, Thursday, December 1, 2011. Upon reporting the injury to his supervisor, he was directed to Concentra Medical Center for further evaluation and treatment. Mara Limoncelli, a physician’s assistant, examined him, diagnosed a hand/wrist contusion and referred him to physical therapy for treatment. In the meantime, she released him to return to work with restrictions against aggravating activities.
6. On Wednesday, December 7th Ms. Limoncelli reevaluated Claimant. Her office note reflects that Claimant requested two days off because of his injury, but she determined that he was able to work, so long as he was restricted from lifting more than ten pounds and pushing or pulling with more than ten pounds of force, and also so long as he continued to wear a wrist brace.
7. Ms. Limoncelli next evaluated Claimant on December 14th. At that point she reduced Claimant’s modified duty work restrictions, to permit lifting of up to 20 pounds and pushing/pulling with up to 50 pounds of force.
8. Claimant also underwent physical therapy treatments during this period. From December 5th through December 27th, 2011 he attended a total of six treatments.
9. As reflected on his timecard, Claimant worked his scheduled shifts on Thursday, December 1st, Friday, December 2nd and Monday, December 5th. On Tuesday, Wednesday, Thursday and Friday, December 6th through 9th, 2011, his timecard reflects that he “called out due to hand.” Ms. Limoncelli having released him to return to work as of the date of injury, I find that there was no medical basis for Claimant’s absence on those days.
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10. On Monday, December 12, 2011 Claimant appeared at Defendant’s premises to retrieve his paycheck for the pay period ending December December 4, 2011. According to the credible testimony of Kristin Robillard, Defendant’s plant manager, Claimant told her on that day that he was going to the doctor’s and would be in to work thereafter, but he did not do so. Two weeks later, on Friday, December 23, 2011 Claimant again appeared to retrieve his paycheck, this one for the pay period ending December 18, 2011. According to Ms. Robillard’s credible testimony, when asked Claimant advised her that he would be ready to return to work the following week. As by that time Claimant had been absent from work without excuse for more than two weeks, Ms. Robillard suggested that he call first before doing so.
11. Consistent with his timecard report, Claimant’s December 9, 2011 paycheck reflected wages paid for both Thursday, December 1st (the date of injury) and Friday, December 2nd, 2011. His December 23, 2011 paycheck reflected wages paid for Monday, December 5th only; this too is consistent with his timecard report.
12. Claimant testified that on at least a few occasions between December 12th and December 23rd, 2011 he appeared at work but was sent home because Defendant could not accommodate his modified duty restrictions. Ms. Robillard disputed this testimony. According to her, aside from coming in to pick up his paychecks on December 12th and 23rd, Claimant never returned to the workplace after Monday, December 5th. Modified duty work within his restrictions was available at all times, so had he appeared for work he would have been accommodated. I find Ms. Robillard’s testimony on this issue more credible than Claimant’s.
13. Claimant admitted that he did not attempt to return to work for Defendant after December 27, 2011 because a co-worker told him that Defendant was no longer interested in employing him. Ms. Robillard concurred that Claimant’s employment was terminated for “job abandonment,” though the record does not specify on what date this occurred.
14. Claimant testified that he sought work after his employment with Defendant terminated, though he could only recall three potential employers to whom he submitted applications. He began working for a new employer on March 25, 2012.
15. Claimant returned to Ms. Limoncelli for further evaluation of his wrist pain on April 6, 2012. He reported that he had not been following the previously established treatment program and had not been participating in therapy. Ms. Limoncelli counseled Claimant as to the importance of doing so and referred him for another course of physical therapy. As for functional limitations, she determined that he was able to work, with modified duty restrictions similar to those that had been in force as of mid-December 2011.
16. I find from the medical evidence that at no time was Claimant ever determined to be totally disabled from working as a consequence of his November 30, 2011 work injury.
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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. Where a claimant’s injury is obscure and a layperson could have no well-grounded opinion as to its nature or extent, expert medical testimony is the sole means of laying a foundation for an award. Lapan v. Berno’s, Inc., 137 Vt. 393, 395-96 (1979).
3. Applying this concept to disputes involving temporary total disability, it has long been settled that a claimant cannot disable him- or herself; rather, expert medical testimony is required to establish the extent, if any, to which an injured worker is incapable of working. See, e.g., Pfalzer v. Pollution Solutions of Vermont, Opinion No. 23A-01WC (October 5, 2001).
4. Here, the uncontradicted medical evidence establishes that Claimant was capable of working, albeit with modified duty restrictions, at all times subsequent to his November 30, 2011 injury. The credible evidence further establishes that Defendant was providing suitable modified duty work. By first calling in sick and then abandoning his job, Claimant removed himself from the work force without a medical basis for doing so. Whatever wages he lost thereafter were a function of that decision, not of his work injury. For that reason, he is disqualified from receiving temporary total disability benefits.
5. Claimant might have qualified for temporary disability benefits nevertheless, had he provided persuasive evidence that after his employment with Defendant terminated he made a reasonably diligent attempt to return to the work force, but because of his injury was unable to find suitable work. To avoid harsh results, the commissioner has indicated a willingness at least to consider such an exception in the past, though the facts necessary to establish it are difficult to prove. See, e.g., Ribis v. Coventry Health Care, Opinion No. 26-09WC (July 17, 2009); Pitaniello v. GE Transportation, Opinion No. 03-08WC (January 17, 2008); Ducharme v. DEW Construction, Opinion No. 24-07WC (August 20, 2007); Pfalzer, supra; Andrew v. Johnson Controls, Opinion No. 3-93WC (June 13, 1993).
6. Here, the medical evidence documented only minimal functional restrictions referable to the work injury, and Claimant did not prove any link between those restrictions that did exist and his delayed return to the work force. Under these circumstances, I conclude that he has failed to establish the facts necessary to fit within the exception.
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7. I conclude that Claimant has failed to sustain his burden of proving his entitlement to temporary total disability benefits for the period from December 13, 2011 through March 24, 2012.
ORDER:
Claimant’s claim for temporary total disability benefits causally related to his November 30, 2011 injury for the period from December 13, 2011 through March 24, 2012 is hereby DENIED.
DATED at Montpelier, Vermont this 5th day of February 2013.
_____________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Deborah Ribis v. Coventry Health Care (July 17, 2009)

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Deborah Ribis v. Coventry Health Care (July 17, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Deborah Ribis Opinion No. 26-09WC
v. By: Jane Gomez-Dimotsis
Hearing Officer
Coventry Health Care
For: Patricia Moulton Powden
Commissioner
State File No. Z-52695
OPINION AND ORDER
Hearing held in Montpelier on January 12, 2009
Record closed on February 17, 2009
APPEARANCES:
Frank Talbott, Esq. for Claimant
Jason Ferreira, Esq. for Defendant
ISSUES:
1. Is Claimant entitled to temporary partial disability benefits from September 19, 2007 until the date upon which Defendant terminated her employment?
2. Is Claimant entitled to temporary total disability benefits from the date upon which Defendant terminated her employment until the date she reached end medical result?
EXHIBITS:
Joint Exhibit I: Joint Medical Exhibit
Claimant’s Exhibit A: Curriculum Vitae of Dr. Ellen C. Gaughan
Claimant’s Exhibit B: Supplemental medical records including neuropsychological evaluation
Claimant’s Exhibit C: Performance appraisal
Defendant’s Exhibit 1: Portion of Claimant’s personnel file
Defendant’s Exhibit 2: Letter from Yul Garces, June 20, 2008
Defendant’s Exhibit 3: Newspaper articles authored by Claimant
Defendant’s Exhibit 5: Various letters from Claimant to Department of Labor
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CLAIM:
Temporary partial disability benefits pursuant to 21 V.S.A. §646
Temporary total disability benefits pursuant to 21 V.S.A. §642
Interest pursuant to 21 V.S.A. §664
Costs and attorney’s fees pursuant to 21 V.S.A. §678
FINDINGS OF FACT:
1. At all times relevant to these proceeding, Claimant was an employee and Defendant was an employer as those terms are defined in Vermont’s Worker’s Compensation Act.
2. Judicial notice is taken of all forms contained in the Department’s file relating to this claim.
3. Claimant worked as a nurse life care planner for Defendant. Her job entailed preparing cost projections for insurance companies and devising life care plans. Claimant received a base salary as well as a $600.00 monthly bonus if she met certain performance-based criteria. Claimant regularly received this bonus prior to her work injury.
4. Claimant also earned money from other sources. She wrote a bi-monthly newspaper column on health care advocacy issues and magazine articles on similar topics. From these activities she earned several hundred dollars annually. In addition, she wrote a book, “Get Back on Your Feet! What Every Injured and Ill Person Needs to Know.”
5. Prior to her employment for Defendant Claimant had worked for another company for whom her primary responsibility was to prepare Medicare Set-Aside agreements. When she began working for Defendant, however, Claimant told her supervisor that she would prefer not to do Medicare Set-Asides because she was “burned out” on them.
Claimant’s Work-Related Injury
6. On August 7, 2007, while Claimant was working at home, she rose from her chair to retrieve some work-related materials from a bookcase and caught her foot on her desk. She fell headfirst into the bookcase, injuring her forehead, knee and back. She did not lose consciousness.
7. Claimant’s son brought her to the hospital. She had suffered a gash on her upper forehead that required fourteen stitches to close. She was not diagnosed with a concussion.
8. Claimant’s primary care physician, Dr. Hobbs, initially diagnosed her with a head laceration and a wrist sprain, and later with neck and cervical pain also. Dr. Hobbs determined that Claimant was unable to work until September 4, 2007.
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9. Although it was not immediately diagnosed, Claimant later was determined to have suffered a traumatic brain injury as a consequence of her fall as well. Dr. Hobbs, Dr. Gaughan (a neuropsychiatrist), Dr. Staunton (a neurologist and independent medical examiner) and a speech pathologist all concurred in this diagnosis. This injury affected her ability to concentrate at work, and also resulted in memory, language and other cognitive impairments.
Claimant’s Medical Treatment
Dr. Gaughan
10. At Dr. Hobb’s referral, Claimant began treating with Dr. Gaughan in December 2007. Dr. Gaughan is board certified in neurology, neuropsychiatry and neuropsychology.
11. Dr. Gaughan diagnosed Claimant with a mild concussion syndrome, a form of traumatic brain injury. The resulting cognitive dysfunction included difficulties with memory, attention span, impulse control, language retrieval and abstract verbal reasoning. Dr. Gaughan also noted that Claimant suffered from vertigo and was anxious and depressed. In Dr. Gaughan’s opinion, all of these symptoms were causally related to Claimant’s work injury, and all impaired her ability to perform her job responsibilities as effectively as she had previously.
12. Dr. Gaughan has treated Claimant regularly since December 2007. She testified at the formal hearing that after so much time it is unlikely that Claimant will experience significant additional improvement in her condition.
Speech Pathologist Orlofsky
13. Since her injury Claimant has undergone speech therapy with Deborah Orlofsky, a speech pathologist. Ms. Orlofsky specializes in patients with traumatic brain injuries, helping them to develop alternative strategies to overcome both speech and cognitive limitations.
14. Ms. Orlovsky began treating Claimant in December 2007 and discharged her from her care in June 2008. Although Claimant’s cognitive thinking processing time had improved, Ms. Orlofsky anticipated that she would continue to experience cognitive difficulties.
Dr. Staunton
15. At Defendant’s request, Dr. Staunton, a neurologist, conducted an independent medical evaluation in February 2008. Dr. Staunton acknowledged that Claimant had suffered a traumatic brain injury, as a result of which she was experiencing short-term memory problems, poor concentration and receptive language difficulties. As treatment, he recommended continued physical and cognitive therapy. Dr. Staunton anticipated that Claimant would recover fully within six months and predicted that she would have no residual permanent impairment.
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16. Dr. Staunton re-evaluated Claimant in September 2008. At that time he found her statements to be inconsistent and questioned whether she might be exaggerating both her physical and her cognitive symptoms for secondary gain. Dr. Staunton recommended a neuropsychological examination to evaluate the extent of Claimant’s perceived cognitive deficiencies.
Neuropsychological Evaluation
17. Claimant underwent a neuropsychological evaluation in December 2008. The evaluator concurred in the diagnosis of traumatic brain injury. Testing revealed various symptoms of cognitive, executive and emotional dysfunction, and language impairment as well. The evaluator recommended vocational, educational and rehabilitative services to assist Claimant in overcoming deficits relating to lack of organization, forgetfulness, confusion, fatigue and executive functioning.
Post-Injury Job Performance Issues
18. When Claimant returned to work in September 2007, approximately one month post-injury, she experienced a variety of cognitive deficiencies, including diminished reading comprehension, problems with short-term memory and difficulty organizing her work. She also had feelings of dizziness and fatigue. As a result of these symptoms Claimant was unable to work as quickly and efficiently as she had in the past. Her productivity suffered.
19. Claimant did continue to work but because her productivity was down she no longer received the monthly performance-related bonuses she regularly had earned before her injury. Because of her cognitive difficulties Defendant opted not to assign her life care plans, so Claimant only did medical cost projections for insurance companies. Claimant’s supervisor, Ms. Payne, specifically noted in Claimant’s work records that although she continued to meet her deadlines her cognitive difficulties caused her to take more time to finish her assignments.
20. Claimant also was noted to be billing fewer hours than what was required, again because of her post-injury limitations. For the eight months prior to her injury, she billed 90.5% of the available billable hours, but after the injury her total billings decreased to only 52.7% of the available billable hours.
21. Claimant testified that her cognitive difficulties also precluded Defendant from training her to prepare Medicare Set-Aside agreements, which she alleged it had intended to do before her injury. This assertion is somewhat at odds, however, with her testimony, noted earlier, that she was “burned out” on these agreements and did not wish to be trained to do them for Defendant.
22. Last, Claimant’s cognitive difficulties also affected her ability to write outside of her work for Defendant. Although she continued to write some health advocacy articles, these took longer to produce than they had in the past.
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Decrease in Wages Post-Injury
23. Claimant’s supervisor acknowledged that Claimant’s average wages decreased as a result of the cognitive difficulties she experienced post-injury. As noted above, prior to her injury Claimant consistently earned her monthly performance-based bonus, resulting in an average weekly wage of $1,601.25. After the injury her average weekly wage decreased to $1,430.63, an average difference of $170.62 weekly.
Claimant’s Termination from Employment
24. In early 2008 Defendant’s Senior Director of Operations, Yul Garces, was instructed to reduce staff because the company had lost revenue. Claimant’s supervisor, Ms. Payne, was charged with identifying the criteria to be used to lay off two life care planners from Claimant’s area.
25. Ms. Payne identified the following factors to be considered in determining whom to lay off:
(a) Regional assignment;
(b) Wage level;
(c) Years of service;
(d) Quality of reports;
(e) Turn-around time for reports;
(f) Proficiency with customer relations;
(g) Attitude; and
(h) Availability to work with Defendant’s three products (life care plans, medical cost projections and Medicare Set-Aside agreements).
26. Applying these factors, Ms. Payne recommended to Mr. Garces that Claimant be one of the two employees to be laid off. Claimant was assigned to the eastern region, where Defendant had the most coverage. She was one of its highest paid employees, but had the fewest years of service. She was only available to work on one of Defendant’s three products. On the positive side, Ms. Payne acknowledged that the quality of Claimant’s reports was high, and her turn-around time, although increased since her injury, still was within acceptable limits. Unfortunately, however, faced with declining revenues, these positive attributes were not enough to justify retaining Claimant and laying off someone else instead.
27. Mr. Garces accepted Ms. Payne’s recommendation and on April 3, 2008 terminated Claimant’s employment. He testified that Claimant was chosen to be laid off because she had the second highest salary, she had less experience, she was assigned to the east region and she was available to work on only one of Defendant’s three products. According to Mr. Garces, the fact that Claimant’s billable hours had decreased was not a factor in her selection, as the company’s declining referrals had caused other life care planners’ billable hours to be lower as well. Thus, Mr. Garces testified, his decision to lay off Claimant had nothing whatsoever to do with her injury. In fact, he disclaimed even knowing that Claimant had been injured.
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Claimant’s Work Capacity
28. Since her injury Claimant has continued to do house work, pay her own bills, drive her car, and take care of her dog. She also has continued to write health advocacy articles, though not at the same pace as before her injury.
29. After Claimant was laid off Dr. Gaughan determined that she was disabled from working. Dr. Gaughan stated that the reason she did so was because Claimant’s injury precluded her from learning a new job and also restricted her from driving very far. Prior to this time Claimant had been working full time with no restrictions. Dr. Gaughan admitted that she would not have taken Claimant out of work if she had not been laid off.
30. In June 2008 Claimant’s speech pathologist, Ms. Orlofsky, recommended that Claimant return to the type of work with which she was familiar, at least part-time to start, and full time if she felt ready to do so.
31. At the time of his second independent medical evaluation, in December 2008, Dr. Staunton stated that Claimant was fully capable of working.
32. At the time of the formal hearing, Claimant was continuing to collect unemployment benefits in the state of New York, where she resides. She could not remember any job contacts except those recently made. As to those, she told none of the employers with whom she spoke about her traumatic brain injury.
33. Since being laid off, Claimant has availed herself of both vocational and educational services and is preparing to become self-employed doing the same type of work as she did for Defendant. Dr. Gaughan has fully endorsed her ability to do so. Claimant has written a business plan and recently received a grant for funds to purchase necessary equipment. Claimant has been successfully self-employed in the past.
Attorney Fees and Costs
34. Claimant’s attorney has submitted a request for costs totaling $2,250.50 and attorney fees totaling $10,026.00 (111.40 hours at the mandated rate of $90.00 per hour).
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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. In the instant case, there is no dispute that Claimant suffered a work-related traumatic brain injury. All of the medical experts agree on this fact. The issues in dispute relate not to the injury itself, but to its alleged impact on Claimant’s ability to work, both before and after Defendant terminated her employment.
Claimant’s Entitlement to Temporary Partial Disability Benefits
3. Claimant alleges that from the time she returned to work after her injury, the week ending September 10, 2007, until the time she was laid off, April 3, 2008, her work injury precluded her from earning as much as she had previously. Specifically, she points to the fact that she regularly had received performance-related bonuses before her injury, but she asserts that her post-injury cognitive deficits prevented her from meeting the criteria thereafter. If her assertion is correct, then under 21 V.S.A. §646 she is entitled to a weekly benefit totaling two-thirds of the difference between her pre-injury average wage ($1,601.25) and her post-injury average wage ($1,430.63). The difference is $170.62, two-thirds of which totals $113.74 weekly.
4. Temporary partial disability benefits are payable to an injured worker who (a) has not yet fully regained his or her earning power; and (b) has not yet reached an end medical result. 21 V.S.A. §646; Orvis v. Hutchins, 123 Vt. 18 (1962).
5. Here, the medical experts all agreed that Claimant’s injury did in fact affect her cognitive function, and thereby her work capabilities as well. Claimant’s supervisor, Ms. Payne, acknowledged that Claimant’s cognitive deficits caused her to take more time to complete assignments, with the result that her billable hours decreased and she could no longer meet the performance-based criteria for monthly bonuses. Having thus established the necessary relationship between Claimant’s work injury and her reduced earnings, Claimant is entitled to temporary partial disability benefits from the time she returned to work, the week ending September 10, 2007, until the time her employment terminated, April 3, 2008.
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Claimant’s Entitlement to Temporary Total Disability Benefits
6. Claimant’s entitlement to temporary total disability benefits stands on a different footing, however. Her claim for these benefits is complicated by the fact that notwithstanding her injury and resulting cognitive deficits, she was able to work full time and without restrictions until she was laid off. To qualify for temporary total disability benefits, therefore, she must show either that Defendant terminated her employment because of her injury and/or that her subsequent unemployment was caused by injury-related factors, not unrelated ones.
7. I find, first of all, that Defendant terminated Claimant’s employment for legitimate business reasons that were unrelated to her injury. Claimant’s supervisor adequately explained the criteria by which she selected Claimant for lay-off, and Mr. Garces reinforced that the decision was based primarily on business revenue and expense considerations. I am convinced by their testimony that given Claimant’s regional assignment, high salary and relatively short tenure, she likely would have been one of the employees chosen for lay-off even if she had not been injured.
8. Nor does the fact that Dr. Gaughan disabled Claimant from working after she had been laid off convince me otherwise. Claimant had been working full time and full duty until Defendant terminated her employment, and Dr. Gaughan herself admitted that she would not have taken Claimant out of work at all had Defendant not taken that action. The reasons Dr. Gaughan cited in support of her determination that Claimant became totally disabled thereafter – that she could not drive long distances or learn a new job – might be relevant to vocational rehabilitation considerations but cannot justify a finding that Claimant was totally unable to work.
9. The fact that Claimant’s lay-off itself was not injury-related, however, does not necessarily preclude her from qualifying for temporary disability benefits for a subsequent period. In order to do so, she must provide persuasive evidence of the following: (a) a work injury; (b) a reasonably diligent attempt to return to the work force; and (c) that any ongoing inability to find suitable work is related to the work injury, not to other factors. Pitaniello v. GE Transportation, Opinion No. 03-08WC (January 17, 2008), citing Andrew v. Johnson Controls, Opinion No. 3-93WC (June 13, 1993) (voluntary quit); and Ducharme v. DEW Construction, Opinion No. 24-07WC (August 27, 2007) (lay-off).
10. Claimant fails to meet this test. Although she credibly established the fact of her work injury, I cannot find from the evidence presented that she has met either of the other two factors.
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11. As to the second factor cited in Pitaniello, Claimant was able to document only a marginally diligent job search. As to the third factor, I can only conclude from the fact that Claimant did not tell any prospective employers of her injury that this was not the reason for their failure to hire her. Most recently, furthermore, Claimant has demonstrated her ability to develop a self-employment plan, doing essentially the same work she was doing before Defendant terminated her employment, and has even garnered funding for it. There is nothing in the record from which to conclude that Claimant’s injury precluded her from choosing this career path sooner.
12. I am left, therefore, with a claimant who suffered a work injury, successfully returned to work and subsequently was laid off for unrelated reasons. There is insufficient evidence to establish that her unemployment for any period of time thereafter was injury-related. Under these circumstances, she does not qualify for temporary total disability benefits.
13. As Claimant has prevailed only on her claim for temporary partial disability benefits, she is entitled to an award of only those costs that relate directly thereto. Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003), citing Brown v. Whiting, Opinion No. 7-97WC (June 13, 1997). Here, however, Claimant’s litigation costs related equally to both aspects of her claim and are not reasonably divisible. It is appropriate in this situation to award all of the costs requested. Hill v. CV Oil Co., Inc., Opinion No. 15-09WC (May 26, 2009).
14. As for attorney fees, in cases where a claimant has only partially prevailed, the Commissioner typically exercises her discretion to award fees commensurate with the extent of the claimant’s success. I find it appropriate here to award Claimant sixty percent of the fees requested, or $6,015.60.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary partial disability benefits at the rate of $113.74 weekly, beginning on September 10, 2007 and ending on April 3, 2008;
2. Interest on the above amounts in accordance with 21 V.S.A. §664;
3. Costs totaling $2,250.00 and attorney fees totaling $6,015.60.
4. Claimant’s claim for temporary total disability benefits subsequent to her termination from employment is hereby DENIED.
DATED at Montpelier, Vermont this 17th day of July 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.

Patricia Hastings v. Green Mountain Log Homes (January 21. 2009)

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

Patricia Hastings v. Green Mountain Log Homes (January 21. 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Patricia Hastings Opinion No. 03-09WC
v. By: Jane Gomez-Dimotsis, Esq.
Hearing Officer
Green Mountain Log Homes
For: Patricia Moulton Powden
Commissioner
State File No. C-04634
OPINION AND ORDER
Hearing held in Montpelier on February 29, 2008
Record closed on March 31, 2008
APPEARANCES:
Thomas Bixby, Esq., for Claimant
Jason Ferreira, Esq., for Defendant
ISSUE PRESENTED:
Are Claimant’s total knee replacement surgery and ongoing medical treatment causally related to the compensable injury she suffered in May 1989?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Liberty Mutual Insurance Co. claim file
Claimant’s Exhibit 2: Photographs
Claimant’s Exhibit 3: Photographs
Claimant’s Exhibit 4: Photographs
Claimant’s Exhibit 5: Photographs
Claimant’s Exhibit 6: Diary, May 1989 – December 1989
Claimant’s Exhibit 8: Various invoices
Claimant’s Exhibit 9: Notice of Injury and Claim for Compensation
Claimant’s Exhibit11: Letter from Nancy Duprey to Claimant, October 25, 1989
Claimant’s Exhibit 12: Report of Claimant Interview, November 11, 1989
Claimant’s Exhibit 13: Letter from Claimant to Lenox Hill/3M, December 11, 1990
Claimant’s Exhibit 14: Letter from Charles Peck to Lenox Hill/3M, January 3, 1991
Claimant’s Exhibit 15: Recorded interview, March 21 (year not specified)
Claimant’s Exhibit 18: Deposition of Elizabeth McLarney, MD, taken on February 12, 2008
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Defendant’s Exhibit 3: Letter from Leonard Rudolf, MD to Jason Ferreira, Esq., May 3, 2007; Independent Medical Evaluation, May 3, 2007; Curriculum Vitae
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Medical benefits pursuant to 21 V.S.A. §640
Interest, attorney’s fees and costs pursuant to 21 V.S.A. §§664 and 678(a)
FINDINGS OF FACT:
1. In May 1989 Claimant was an employee of Defendant and Defendant was an employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all forms contained in the Department’s file relating to this claim.
3. Claimant began working for Defendant as a mechanical draftsperson in 1987. In addition to this work, Claimant also enjoyed a variety of recreational activities. Most notably, Claimant has long been an accomplished horseback rider. For most of her life, she has owned, boarded and trained horses. She also gives horseback riding lessons and guided trail rides.
Claimant’s Prior Medical History
4. In 1984 or 1985 Claimant injured her right knee while playing racquetball. She underwent arthroscopic debridement of her medial meniscus, following which she experienced complete pain relief.
5. Although the medical records relating to the 1984 injury were not available, it is likely that Claimant also suffered a significant tear to her anterior cruciate ligament (ACL) at the time of her racquetball injury.
6. The ACL functions in a normal, uninjured knee to guide the joint through movement and protect against abnormal motions. When the ACL is absent, non-functional or incompetent, a knee brace may be prescribed to provide external support and restraint.
7. Following her 1984 injury, Claimant was prescribed a Lenox-Hill knee brace, which she wore while playing volleyball. The Lenox-Hill brace is a functional, hinged brace whose purpose is to stabilize an ACL-deficient knee. Had Claimant not torn her ACL in the context of the 1984 injury, she would not have been prescribed a Lenox-Hill brace.
8. After recovering from her 1984 injury, Claimant did not seek any medical treatment for her right knee until May 12, 1989.
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Claimant’s May 1989 Work Injury
9. On May 12, 1989 Claimant injured her right knee at work when she missed a step and fell down some stairs while en route from her office to Defendant’s main office. Her knee swelled immediately and she felt “outrageous” pain.
10. Claimant reported her injury and then presented to her primary care provider for treatment. The medical record of that visit referred to Claimant’s 1984 knee injury and reported that since that time Claimant’s right knee had dislocated on two or three occasions in the past two years.
11. Defendant accepted Claimant’s injury as compensable and began paying workers’ compensation benefits accordingly.
12. In June 1989 Claimant was referred to Dr. Shirreffs, an orthopedic surgeon, for further evaluation. An MRI study documented a medial meniscal tear and disruption of the ACL, both findings that Dr. Shirreffs believed probably were related to Claimant’s 1984 injury rather than to her more recent fall at work.
13. Dr. Shirreffs performed arthroscopic surgery on Claimant’s right knee in July 1989. His operative report documented the following findings:
(a) an old medial meniscus tear;
(b) a chronic ACL tear with less than 5% of the fibers intact;
(c) a small lateral meniscus tear; and
(d) significant Grade III and IV degenerative changes in the articular surfaces of the joint.
14. An ACL that has fewer than 5% of its fibers intact is one that is almost completely torn. An ACL in this condition is deficient and incompetent, meaning that the tension in the ligament is insufficient to guide the knee through movement in a normal fashion.
15. There is a strong correlation between the presence of an incompetent ACL and the development of degenerative joint disease, or arthritis, in the knee. A deficient ACL causes increased stress to the surfaces inside the knee, which creates an environment of accelerated wear to the cartilage. As the knee continues to move abnormally, the cartilage gets progressively thinner. A grading system exists to identify the increasing severity of cartilage degeneration. Grade IV degeneration indicates extreme thinning of the articular cartilage. The next step, Grade V, indicates exposed bone-on-bone degeneration.
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16. At the time of the July 1989 arthroscopy, Dr. Shirreffs anticipated that because of the ACL laxity and degenerative arthritis from which Claimant already suffered as a result of her 1984 injury ultimately she would need a total knee replacement. By the same token, to the extent that Claimant suffered from residual pain and laxity following the July 1989 arthroscopy, Dr. Shirreffs attributed these symptoms to the degenerative arthritis that already was present when her May 1989 work injury occurred. In order to address these symptoms, and to delay the prospect of total knee replacement surgery for as long as possible, Dr. Shirreffs advised Claimant to wear her knee brace and to find employment that did not require prolonged standing, climbing or descending stairs, or heavy lifting.
17. Claimant recovered well from Dr. Shirreffs’ July 1989 arthroscopy. By the end of 1989 she was able to resume full-time work. She also resumed her normal recreational activities, including horseback riding. In contrast to Claimant’s experience following her 1984 arthroscopy, however, this time she found it necessary to wear her Lenox-Hill brace on a much more frequent basis. Whereas before Claimant had worn the brace only to play volleyball, now she wore it daily.
18. From December 1989 until 2006 Claimant held a variety of jobs. She worked as a cook, as a retail clothing store clerk, as a laborer and trail guide at a riding stable, and as an optic grinder in a manufacturing facility. She did odd jobs gardening, painting, house cleaning and babysitting. She also did work on her own property, assisting in the construction of two sheds. Last, she continued to ride, train and care for her own horses.
19. Claimant did not seek any medical treatment for her right knee from December 1989 until 2006. She occasionally took pain medications and continued to wear her knee brace daily. When the knee brace had to be refurbished in 1990, 1991, 1992, and again in 2003, Defendant paid for the cost of doing so.
Claimant’s Medical Course since 2006
20. In early 2006 Claimant’s knee brace again required refurbishment. This time, however, Defendant denied Claimant’s request that it cover the cost of doing so. Defendant argued that Claimant’s non-work-related activities, most notably horseback riding, had both aggravated her pre-existing knee injury and caused her knee brace to deteriorate. Therefore, Defendant asserted, it was no longer responsible for maintaining or replacing the brace.
21. Also in early 2006, for the first time since 1989 Claimant sought medical treatment for increased symptoms in her right knee. In February 2006 she reported to Dr. McLarney, the orthopedic surgeon who was treating her for an unrelated injury, that her right knee “continues to bother her” while horseback riding, and also that it “grinds” and “gives out on her.” Claimant reported to Dr. McLarney that she had worn a knee brace since her 1989 work injury and arthroscopy. She did not inform Dr. McLarney that in fact the knee brace had been prescribed five years earlier, after the 1984 arthroscopy.
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22. Initially Dr. McLarney prescribed conservative therapy for Claimant’s right knee symptoms, but this proved ineffective. The only remaining treatment option being surgical, in August 2007 Claimant underwent a total knee replacement.
23. In Dr. McLarney’s opinion, Claimant’s 1989 work injury either caused or accelerated the need for her total knee replacement in 2007. Dr. McLarney acknowledged that Claimant must have partially torn her ACL in the context of her 1984 injury, as otherwise she would not have been prescribed a Lenox-Hill knee brace. She also acknowledged that Claimant suffered some loss of articular cartilage, or arthritis, as a consequence of that injury. However, based on her interpretation of Dr. Shirreffs’ July 1989 operative report, Dr. McLarney concluded that Claimant’s ACL did not tear completely until the May 1989 work injury. Once it did, this caused further loss of articular cartilage, which ultimately led to the need for a total knee replacement.
24. At Defendant’s request, in May 2007 Claimant underwent an independent medical evaluation with Dr. Rudolf, an orthopedic surgeon. Based primarily on his interpretation of Dr. Shirreffs’ July 1989 operative report, Dr. Rudolf concluded that Claimant’s May 1989 work injury neither caused nor accelerated the need for a total knee replacement. According to Dr. Rudolf, Dr. Shirreffs’ report clearly documented that as a result of her 1984 injury Claimant already had both a non-functioning, deficient ACL and advanced degenerative arthritis at the time of her May 1989 work injury. In Dr. Rudolf’s opinion, had the 1989 work injury accelerated the progression of Claimant’s arthritis in any appreciable way, she would have come to a total knee replacement within a far shorter period of time, not 16 or 17 years later. Dr. Rudolf concluded, therefore, that the 1989 injury played no role in the progression of the disease, and that the need for a total knee replacement already was firmly established before that injury occurred.
25. Dr. Rudolf concluded that the only new injury to Claimant’s knee causally related to the 1989 work injury was the lateral meniscus tear noted in Dr. Shirreffs’ operative report. Dr. Rudolf ascribed a 1% whole person permanent impairment to this injury.
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 issue in this claim is medical causation. Claimant argues that her 1989 work injury either caused or accelerated the necessity for her total knee replacement in 2007. Defendant contends that as a consequence of Claimant’s prior, unrelated knee injury the conditions that necessitated a total knee replacement already existed and were unaffected by the 1989 work injury.
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3. As a preliminary matter, Claimant argues that because Defendant accepted her 1989 work injury as compensable and in particular, because Defendant covered the cost of refurbishing her knee brace from 1990 until 2003, it has waived its right to contest responsibility for her 2007 total knee replacement. The law as to waiver is neither as broad nor as heavy-handed as Claimant would have it applied in this claim, however.
4. The burden is on the party asserting waiver to show “an act or 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), cited in D.B. v. Vergennes Auto, Inc., Opinion No. 42-06WC (October 9, 2006). A waiver may be either express or implied, but if it is the latter, then “the facts and circumstances relied upon must be unequivocal in character.” Holden & Martin, supra.
5. I cannot conclude from the fact that Defendant declined to dispute its responsibility for refurbishing Claimant’s knee brace that it thereby intended to accept responsibility for her total knee replacement as well. The facts and circumstances surrounding the first decision, which involved relatively minor medical costs and no associated indemnity benefits, are too different from those attending the later issue to permit such an inference.
6. As to the causal relationship between Claimant’s 1989 work injury and her need for a total knee replacement, the medical evidence was conflicting. Dr. McLaren asserted that Claimant’s work injury caused her partially torn ACL to tear completely, thus accelerating the progression of her pre-existing arthritis and necessitating a total knee replacement. In contrast, Dr. Rudolf argued that the 1989 injury had no impact on the progression of the degenerative disease in Claimant’s knee and that it did not hasten the need for a total knee replacement in any respect.
7. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
8. I find Dr. McLaren’s opinion to be too speculative, and therefore I find Dr. Rudolf to be the most credible. In particular, I am swayed by Dr. Rudolf’s assertion that had the 1989 work injury accelerated the progression of Claimant’s degenerative arthritis in any measurable way, she would have come to a total knee replacement far sooner than 17 years subsequently. It is more reasonable to conclude that the natural progression of the disease, which already was clearly established and significantly advanced even before the 1989 injury, caused the need for the 2007 knee replacement surgery.
9. I conclude, therefore, that Claimant has failed to show the required causal relationship between her 1989 work injury and her 2007 surgery to trigger Defendant’s responsibility for workers’ compensation benefits related thereto. On those grounds, her claim must fail.
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10. I do find, however, that Claimant suffered a 1% whole person impairment referable to her lateral meniscus tear as a result of the 1989 work injury. Dr. Rudolf’s opinion in this regard was undisputed. Defendant owes permanent partial disability benefits in accordance with that rating, as well as interest from May 3, 2007, the date of Dr. Rudolf’s impairment evaluation. See Merchant v. A & C Enercom, Opinion No. 27-04WC (July 20, 2004) (interest awarded from the date it became clear that claimant had incurred a permanent partial disability as a result of the work-related accident).
11. I find that Claimant has not substantially prevailed, and therefore she is not entitled to an award of costs or attorney’s fees.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Permanent partial disability benefits in accordance with a 1% whole person impairment referable to Claimant’s right knee lateral meniscus tear; and
2. Interest on the above amount from May 3, 2007 forward, in accordance with 21 V.S.A. §664.
DATED at Montpelier, Vermont this 21st day of January 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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