Archive

Tag Archive for: temporary total disability

George Plante v. State of Vermont, Agency of Transportation (September 14, 2012)

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

George Plante v. State of Vermont, Agency of Transportation (September 14, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
George Plante Opinion No. 24-12WC
v. By: Jane Woodruff, Esq.
Hearing Officer
State of Vermont
Agency of Transportation For: Anne M. Noonan Commissioner
State File Nos. X-4039 and BB-0900 OPINION AND ORDER
Claim submitted on stipulated facts, exhibits, issues and briefs without an evidentiary hearing.
Record closed on July 16, 2012
APPEARANCES:
Frank Talbott, Esq., for Claimant
Keith Kasper, Esq., for Defendant
STIPULATED ISSUES:
1. What is the proper determination of the date of Claimant’s cervical injury?
2. What is the appropriate average weekly wage and compensation rate for the purposes of calculating the indemnity benefits referable to Claimant’s cervical injury?
STIPULATED EXHIBITS:
Joint Exhibit 1: Medical records
Joint Exhibit 2: Franklin Superior Court trial transcript, November 8-9, 2011
Joint Exhibit 3: Photographs (19)
Joint Exhibit 4: Illustration of median and ulnar nerves
Joint Exhibit 5: Various wage statements and compensation agreements
Claimant’s Exhibit 1: Letter from Attorney Talbott, October 13, 2009
Claimant’s Exhibit 2: Letter from Workers’ Compensation Specialist, October 19, 2009
Claimant’s Exhibit 3: Notice of Injury and Claim for Compensation (Form 5), received October 14, 2009
Claimant’s Exhibit 4: Claimant’s proposed findings of fact and conclusions of law, June 1, 2010
2
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
The parties stipulated to the following facts and I accept them as true:
1. At all relevant times, Claimant has been an employee and Defendant an employer within the meaning of Vermont’s Workers’ Compensation Act.
2. In 2005 Claimant asserted a workers’ compensation claim for bilateral upper extremity pain that he alleged was caused by progressive injury due to his work for Defendant.
3. Defendant accepted Claimant’s claim for bilateral wrist injuries as compensable, with a date of injury of July 1, 2005. This claim was assigned State File No. X-4039.
4. Claimant was originally diagnosed with bilateral carpal tunnel syndrome.
5. A Wage Statement (Form 25) was prepared and filed for the twelve weeks prior to July 1, 2005, which showed an average weekly wage of $640.48. However, no Form 25 was obtained from the concurrent employer for this period until May 25, 2006. At that point, Claimant’s average weekly wage for the twelve weeks prior to July 1, 2005 was recalculated to be $817.47.
6. Claimant did not lose any time from work as a result of his July 1, 2005 injury until March 22, 2006. On that date he underwent a right-sided carpal tunnel release.
7. During the twelve weeks prior to March 22, 2006 Claimant was employed by a concurrent employer, the Air National Guard. Wage statements were obtained from both employers, which documented a combined average weekly wage of $1,269.54. This yields a compensation rate of $846.36.
8. An Agreement for Temporary Total Disability Benefits (Form 21) was entered into and approved by the Department, providing that beginning March 25, 2006 Defendant would pay temporary total disability benefits at the rate of $846.36 weekly.
9. Claimant returned to work on May 15, 2006 and continued to work until December 2, 2008.
10. On December 2, 2008 Claimant underwent a repeat right-sided carpal tunnel release.
3
11. A Wage Statement was filed that documented an average weekly wage for the 26 weeks prior to this period of disability of $788.46.1
12. On or about October 13, 2009 Claimant, through his counsel, filed an Employee’s Notice of Injury and Claim for Compensation (Form 5), in which he alleged “cervical degenerative disk disease aggravated by heavy work; disk herniation caused/aggravated by heavy work” and a “progressive” date of injury.
13. This Form 5 was given a new State File No. BB-0900.
14. On December 23, 2009 Claimant underwent cervical disc surgery.2
15. On April 22, 2010 the commissioner held a formal hearing on the disputed issue of whether Claimant’s cervical disc surgery was causally related to an injury arising out of and in the course of his employment for Defendant.
16. By a written decision issued on August 5, 2010 the commissioner concluded that Claimant’s cervical condition was neither caused nor aggravated by his employment for Defendant.
17. Claimant appealed the commissioner’s decision to the Superior Court, Franklin County Unit.
18. Claimant was successful in his appeal. In November 2011 the Superior Court jury responded “yes” to the certified question “whether the Claimant’s cervical condition was caused and/or aggravated by his employment for the Defendant.”
19. On January 18, 2012 the commissioner entered an Amended Order stating that pursuant to the Superior Court jury verdict Defendant was obligated to pay “all workers’ compensation benefits to which Claimant establishes his entitlement.”
Based upon the record evidence presented, the following additional facts are found:
20. Claimant initially experienced improvement in his right upper extremity after his first carpal tunnel release in March 2006. However, within months of that surgery he again complained of right upper extremity pain, numbness and tingling. A second right carpal tunnel release in December 2008 provided no relief.
1 The 26-week calculation period was in keeping with legislative amendments to 21 V.S.A. §650(a), effective July 1, 2008.
2 Though incorrectly stated in their Stipulation of Facts, the parties agree that this is the correct date of Claimant’s cervical surgery.
4
21. In January 2009 Claimant continued to complain of pain. He was referred to Dr. Rinehart, who evaluated him in early April 2009. Dr. Rinehart described Claimant’s problem as severe numbness and pain in the right upper extremity. He noted that there had been noticeable improvement documented on EMG and nerve conduction tests in May 2008 and March 2009, but that this improvement “did not mirror his clinical picture which continues to present with severe numbness and pain in his right upper extremity.”
21. Based on these findings, Dr. Rinehart concluded that Claimant’s symptoms were more likely related to cervical pathology rather than to any carpal tunnel problem. As a result, he recommended that Claimant undergo cervical surgery.
22. In October 2009 Claimant sought treatment with Dr. Barnum, a board certified spine surgeon. His complaints at that time included bilateral arm pain with numbness and tingling in his hands. Dr. Barnum found evidence of what he believed to be nerve impingement in Claimant’s neck. Considering that finding together with Claimant’s other symptoms, he diagnosed a so-called “double crush syndrome.”
23. Double crush syndrome is a condition that occurs when a single nerve becomes pinched in two distinct areas. In Claimant’s case the nerve was pinched in his wrist and also in his neck. The preferred course of treatment in this type of situation is to release the nerve first at the wrist, as that is the least invasive procedure. In some circumstances doing so will correct the impingement in the neck as well, and the more invasive cervical surgery can be avoided.
24. Unfortunately, Claimant had continued to have symptoms after his carpal tunnel releases, such that cervical surgery was now necessary. Dr. Barnum performed that surgery on December 23, 2009. Claimant recuperated for approximately six weeks thereafter. He returned to work full time on February 1, 2010.
25. Claimant credibly described the symptoms in his right arm as 80 percent improved following his cervical surgery. The pain in his left arm he described as 100 percent resolved.
26. As a consequence of Claimant’s compensable cervical injury, I find that Defendant is obligated to pay temporary total disability benefits for the period from December 23, 2009 to February 1, 2010 as well as permanency benefits specifically referable to that condition.
27. Claimant’s average weekly wage for the 26 weeks prior to December 23, 2009 was $814.41. This yields a compensation rate of $542.96.
5
CONCLUSIONS OF LAW:
1. The principal disputed issue in this case concerns the appropriate average weekly wage and compensation rate for indemnity benefits payable as a consequence of Claimant’s December 2009 cervical surgery. Resolving this dispute requires a determination as to when the “injury” necessitating that surgery occurred.
2. Vermont’s workers’ compensation statute provides that an injured worker’s average weekly wages “shall be computed in such manner as is best calculated to give the average weekly earnings of the worker during the 26 weeks preceding an injury . . .” 21 V.S.A. §650(a). Elsewhere, in the context of its notice and statute of limitations provisions the statute states, “The date of injury . . . shall be the point in time when the injury . . . and its relationship to the employment is reasonably discoverable and apparent.” 21 V.S.A. §656. Workers’ Compensation Rule 3.0540 reiterates this language, and the Vermont Supreme Court has consistently applied it in cases involving notice and statute of limitations disputes. Longe v. Boise Cascade Corp., 171 Vt. 214, 219 (2000); Hartman v. Ouellette, 146 Vt. 443, 447 1985).
3. Aside from notice and statute of limitations issues, neither the statute nor the Supreme Court has delineated what constitutes the “date of injury” for the purposes of determining the rate at which temporary disability benefits should be paid. In prior decisions, the commissioner has at times held that the “date of injury” in this context is not the date upon which the injury itself occurred, but rather the date upon which it became disabling. See, e.g., V.S. v. Kenametal, Inc., Opinion No. 19-07WC (August 2, 2007); Plante v. Slalom Skiwear, Inc., Opinion No. 19-95WC (May 24, 1995). In other cases, the average weekly wage calculation has been based solely on the date when the injury and its relationship to the employment became reasonably discoverable and apparent, regardless of when it first became disabling. See, e.g., Hepburn v. Concrete Professionals, Inc., Opinion No. 16-03WC (May 14, 2003); Groman v. Peck Auto and Glass and Middlebury College, Opinion No. 3-95WC (March 13, 1995). In all cases, the commissioner has applied the analysis that best incorporates the statute’s intent with respect to indemnity benefits – to replace wages lost as a direct result of a compensable injury. Orvis v. Hutchins, 123 Vt. 18 (1962).
4. Turning to the current claim, I conclude that the date of Claimant’s cervical injury was July 1, 2005. This was the date assigned to his complaints of bilateral upper extremity pain, which Defendant accepted as compensable. The Superior Court jury since has determined that Claimant’s cervical complaints were also causally related. Having now been diagnosed as a double crush syndrome, the medical evidence establishes that both complaints likely resulted from the same primary injury.
6
5. Defendant argues that Claimant’s cervical injury, and particularly its relationship to his employment, did not become reasonably discoverable and apparent until April 2009, when Dr. Rinehart first posited that his ongoing symptoms were originating in his neck rather than in his wrists. I disagree. That the complaints referable to Claimant’s July 1, 2005 compensable injury were initially misdiagnosed as involving solely carpal tunnel syndrome rather than a double crush syndrome as well does not change the date of their occurrence. An injury claim begins with a symptom or complaint, not a diagnosis.
6. I conclude, therefore, that the date of Claimant’s compensable injury, which includes both his upper extremity and his neck complaints, was July 1, 2005.
7. Establishing the date of Claimant’s injury does not resolve the dispute as to how to calculate his average weekly wage and compensation rate, however. This is because Claimant has endured three separate periods of disability – the first following his March 2006 carpal tunnel surgery, the second following his December 2008 carpal tunnel surgery, and the third following his December 2009 cervical surgery. According to the statute, 21 V.S.A. §650(c), in circumstances such as this the rate at which benefits must be paid may be subject to change.
8. Section 650(c) states, “When temporary disability . . . does not occur in a continuous period but occurs in separate intervals each resulting from the original injury, compensation shall be adjusted for each recurrence of disability to reflect any increases in wages or benefits prevailing at that time.” According to Claimant, this means that whichever date yields the highest average weekly wage – in this case, March 22, 2006 – is the one that must control his current compensation rate.
9. Historically the Department has interpreted the language of §650(c) 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).
10. As the commissioner previously has observed, this interpretation makes sense when the work injury itself accounts for the reduction in earnings. Griggs v. New Generation Communications, Opinion No. 30-10WC (October 1, 2010). In this case, for example, Claimant should not be penalized if at some point after March 22, 2006 the functional restrictions imposed as a result of his work injury precluded him from maintaining his concurrent employment for the Air National Guard. If that is in fact what happened, then his compensation rate thereafter should reflect the loss of those wages. This would be 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, supra at 22.
7
11. Fairness also requires, however, that Claimant not receive a windfall should the evidence establish that his reduction in earnings was due to circumstances completely unrelated to his work injury, such as a personal decision not to continue his concurrent employment. See, e.g., D.P. v. GE Transportation, Opinion No. 03-08WC (January 17, 2008). To hold otherwise would amount to wage enhancement, not wage replacement. Griggs, supra.
12. The parties have not submitted any evidence as to why Claimant’s average weekly wage was lower in both December 2008 and December 2009 than it had been in March 2006. Without such evidence, I cannot determine which date is most compatible with the statute’s intent – to replace rather than supplement lost wages.
13. Under these circumstances, rather than making a determination based on incomplete information, it makes better sense to allow the parties an opportunity to present additional evidence, whether by stipulation, affidavit or formal hearing.
ORDER:
Based on the foregoing findings of fact and conclusions of law, the date of injury referable to Claimant’s cervical condition is determined to be July 1, 2005. The parties shall have 30 days from the date of this decision within which to present additional evidence and/or to request an evidentiary hearing as to the issues raised in Conclusion of Law No. 12 above.
DATED at Montpelier, Vermont this 14th day of September 2012.
_______________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

Franjo Baric v. Velan Valve Corporation (October 1, 2010)

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

Franjo Baric v. Velan Valve Corporation (October 1, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Franjo Baric Opinion No. 21R-10WC
By: Sal Spinosa
v. Hearing Officer
Velan Valve Corp. For: Valerie Rickert
Acting Commissioner
State File No. Y-58658
RULING ON DEFENDANT’S MOTION FOR RECONSIDERATION
Defendant moves for reconsideration of the Commissioner’s August 5, 2010 denial of its motion to stay her previous ruling granting partial summary judgment to Claimant.
In granting partial summary judgment to Claimant, the Commissioner assumed that the question whether he was concurrently employed at the time of his work-related injury was not genuinely disputed. With that in mind, the Commissioner concluded that the parties’ failure to include Claimant’s wages from concurrent employment in their average weekly wage calculation constituted a mutual mistake of fact. Therefore, the Commissioner held that the previously approved Agreement for Temporary Total Disability Compensation (Form 21) was not binding. She ordered Defendant to recalculate Claimant’s average weekly wage, taking the concurrent earnings into account, and to make whatever retroactive payments were necessary.
In reality, as is clear from a closer examination of its prior pleadings, Defendant has never admitted the truth of Claimant’s contention that he was concurrently employed. To the contrary, that fact has been, and is now, genuinely disputed. As that fact formed the basis for the Commissioner’s previous ruling, conceivably it was inappropriate to have disposed of it on summary judgment. Rather, fairness requires that both parties be afforded a more complete opportunity to present evidence on the issue.
Defendant’s Motion for Reconsideration is GRANTED. The Commissioner’s previous ruling granting summary judgment in Claimant’s favor is hereby stayed. The issue whether Claimant was concurrently employed at the time of his work injury shall be adjudicated at formal hearing.
DATED at Montpelier, Vermont this 1st day of October 2010.
______________________
Valerie Rickert
Acting Commissioner

Franjo Baric v. Velan Valve Corporation (August 5, 2010)

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

Franjo Baric v. Velan Valve Corporation (August 5, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Franjo Baric Opinion No. 21S-10WC
By: Sal Spinosa
v. Hearing Officer
Velan Valve Corporation For: Valerie Rickert
Acting Commissioner
State File No. Y-58658
RULING ON DEFENDANT’S MOTION FOR STAY
On Cross Motions for Partial Summary Judgment, Claimant prevailed. He argued successfully that the Agreement for Temporary Total Disability Compensation (Form 21) executed by both parties and approved by the Department failed to include his wages from concurrent employment. The Commissioner deemed this to be a mutual mistake of fact and consequently invalidated the average weekly wage as stated on the approved Form 21.
Pursuant to 21 V.S.A. §675(b), Defendant moves to stay the Commissioner’s June 23, 2010 Order on the grounds that it has met the requirements for granting a stay as established by the Vermont Supreme Court in In re Insurance Services Office, Inc., 148 Vt. 634, 635 (1987).
According to 21 V.S.A. §675(b), “[a]ny award or order of the commissioner shall be of full effect from issuance unless stayed by the commissioner, any appeal notwithstanding…” To prevail on a request for a stay, the moving party must demonstrate all of the following:
1. That it is likely to succeed on the merits;
2. That it will suffer irreparable injury if a stay is not granted;
3. That issuing the stay will not substantially harm the other party; and
4. That the best interests of the public will be served by issuing a stay.
In re Insurance Services Office, Inc., supra.
As contemplated by the legislature, the granting of a stay must be the exception, not the rule. Bodwell v. Webster Corp., Opinion No. 62S-96WC (December 10, 1996). Applying this stringent standard, I find that Defendant has failed to establish its right to a stay. Most notably, in arguing that it is likely to succeed on the merits Defendant recites the same arguments it proposed in the original cross motions. Those arguments are no more convincing today than they were when first offered.
Both parties agree that Claimant had concurrent employment at the time the Form 21 was signed and that his concurrent wages should have been included in the average weekly wage calculation. Both parties therefore agree, at least impliedly, that because his concurrent
2
employment wages were omitted Claimant was denied benefits to which he was entitled. This is the error at the core of the Form 21 and one that both parties relied upon and endorsed.
As it did originally, Defendant blames Claimant for not divulging his concurrent employment in a more timely fashion. It proposes to sanction him by urging adherence to an agreement fashioned around incorrect information. While Rule 17.0000 strongly upholds the finality of compensation agreements, it does not support adherence to an agreement where, as here, a mutual mistake occupies the heart of the agreement.
Having failed to satisfy even the first prong of the Insurance Services test, it is not necessary to consider the remaining factors. Defendant’s motion for Stay is DENIED.
Finally, I must reject Claimant’s characterization of Defendant’s appeal as an interlocutory one. The ruling from which Defendant now appeals was a final determination as to how Claimant’s weekly benefit amount should have been calculated. This issue exists totally separate and apart from the issues still pending before me and is not determinative of them in any way. As such, Defendant’s direct appeal is properly taken. 21 V.S.A. §672; 3 V.S.A. §815(a).
DATED at Montpelier, Vermont this 5th day of August 2010.
___________________________
Valerie Rickert
Acting Commissioner

C. F. v. National Life Insurance Co. (November 17, 2006)

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

C. F. v. National Life Insurance Co. (November 17, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
C. F. Opinion No. 44-06WC
By: Margaret A. Mangan
v. Hearing Officer
National Life Insurance Co. For: Patricia Moulton Powden
Commissioner
State File No. T-20446
Hearing held in Montpelier on August 22 and 23, 2006
Record closed on September 20, 2006
APPEARANCES:
Steven P. Robinson, Esq. and Jennifer Ciarlo Pacholek, Esq., for the Claimant
Keith J. Kasper, Esq. and David Berman for the Defendant
ISSUES:
1. Is Claimant’s August 19, 2003 fall at home a compensable result of her March 10, 2003 work related injury?
2. If so, what injuries did she suffer as a result of her August 19, 2003 incident?
3. If the August 19, 2003 injuries are compensable, has she reached a medical end result for those injuries? Is she entitled to additional temporary total disability benefits and, if so, for what time periods?
4. If the August 19, 2003 injuries are compensable, what is the extent of the resulting permanent partial impairment?
5. Is Claimant permanently and totally disabled as a result of her work related injury or injuries?
2
EXHIBITS:
Joint:
I: Medical records
II: Performance evaluations
III: School Records
Claimant:
1: Defense counsel’s December 13, 2005 letter
2: Claimant’s counsel’s December 27, 2004
Defendant:
A: Private Investigator Videotape
STIPULATION:
1. On March 10, 2003, Claimant was an employee of Defendant within the meaning of the Vermont Employer’s Liability and Workers’ Compensation Act (Act).
2. On March 10, 2003, Defendant was the employer of Claimant within the meaning of the Act.
3. On March 10, 2003, Claimant had one dependent within the meaning of the Act who turned twenty-one years old on November 19, 2004 at which time he was no longer dependent.
4. On March 10, 2003, Claimant had an average weekly wage of $482.31 resulting in an initial compensation rate of $321.54.
5. On March 10, 2003 Claimant suffered a work-related injury.
6. On August 19, 2003, Claimant fell at home. Defendant contests the compensability of this incident and any resulting injuries, but Claimant alleges that the fall was the direct result of her work-related March 10, 2003 injury.
7. On January 5, 2005, Defendant filed a Form 27 terminating Claimant’s indemnity benefits for her accepted work-related right knee injury, based on a determination of medical end result with 4% whole person impairment due to the accepted right knee claim.
8. On August 4, 2005, Claimant was separated from her employment at National Life.
9. To date, Claimant has received all indemnity and medical benefits associated with her right knee claim.
3
CLAIM:
Claimant seeks additional medical, temporary total, permanent partial, vocational and permanent total disability benefits as a result of her work-related injury or injuries, and if successful, an award of attorney fees and costs.
OVERVIEW:
It is undisputed that Claimant suffered a work related fall in March of 2003, although the full extent of the injuries from that fall is contested. Six months later, Claimant fell again, but this time at home. Did the second fall result from the earlier, work-related fall? If so, what injuries did Claimant suffer? Is Claimant capable of regular, gainful employment? Several experts have rendered opinions on the sequelae of the falls. Because some of the opinions were obtained years after the two falls, when facts supporting the opinions differ from contemporaneous medical records, the earlier records will control.
FINDINGS OF FACT:
1. During the two-day hearing, Claimant was alert. She testified with no signs of anomia (difficulty finding words) and answered questions clearly and coherently. She exhibited no overt signs of lack of concentration or attention.
2. Before any of the events giving rise to this claim occurred, Claimant had worked running machinery at Rock of Ages for about twenty years and at National Life for about eighteen years.
3. Claimant was a responsible, reliable worker, missing time from work only for an occasional cold.
4. Claimant’s work for National Life was that of a full time set up person. She cleaned trucks, ran errands, checked the cleanliness of restrooms and ensured the proper set up of meetings. Claimant took pride in her work.
5. On March 10, 2003, Claimant fell when she was leaving work. She stubbed her toe and fell forward, landing on hands, knees and hitting her face.
6. At a doctor’s visit on April 29, 2003, Claimant reported to her primary care physician, Dr. Kristopher Jensen, that she had fallen three weeks earlier, injuring her right knee and that she had what the doctor described as “short lived loss of consciousness” at the time of the fall. Dr. Jensen noted no “obvious instability” when Claimant was walking. He also suggested that the persistent pain may have been due to her being on her feet most of the day at work.
7. In June 2003, Claimant telephoned Dr. Jensen’s office, reporting that she still had pain and intermittent swelling in her right knee.
4
8. In mid June 2003, Claimant saw Dr. Stafford who noted increase in her knee pain after moving a lot of furniture at work.
9. On July 8, 2003, Claimant was seen again for knee pain and stiffness, which she reported was worse when she was working. On examination, the knee was tender but had “near full range of motion.”
10. On July 31, 2003, Claimant was seen by Charles Butterick, Physician Assistant at Green Mountain Orthopaedic Surgery, who noted a complaint of persistent knee pain. Mr. Butterick recommended physical therapy.
11. At physical therapy Claimant demonstrated weakness in her right leg. A program was set up with goals of increasing the strength and flexion in her right leg and decreasing the pain.
12. In June and June of 2003, Claimant had two instances when her right knee gave out, although she did not fall either time. The first was in the cafeteria in the National Life Building when she caught herself on the salad bar as the knee gave way. The second time was while she was cleaning a rest room, when she again caught herself and prevented a fall. Claimant recalled both instances in some detail at hearing.
13. On August 19, 2003, Claimant fell down her stairs at home. She then went to the emergency department at Copley Hospital where her complaints of left shoulder and back pain were noted. At that time, there was no evidence of head trauma.
14. Claimant fractured her left wrist in the fall at home, a diagnosis made the day of the fall. The fracture required surgery that Dr. Landvater performed on August 25, 2003. Sometime later, it was learned that she also fractured her left lower leg, the fibula.
15. On August 25, 2003, Dr. Landvater operated on Claimant’s fractured left wrist.
16. Also on August 25, 2003, the day of the left wrist surgery, Claimant saw Dr. Jensen who noted that Claimant broke her wrist in the fall and hit her head, although she had no loss of consciousness.
17. An October 21, 2003 physical therapy note documented Claimant’s description of having lost her balance when she fell down the steps at home.
18. In addition to surgery on the wrist, Claimant received medical care and physical therapy for her left wrist, leg and shoulder.
19. In November 2003, Dr. Landvater noted that Claimant was not yet to resume work.
20. In December 2003, Dr. Stephanie Landvater noted that Claimant was to return for treatment if she had continued “catching and buckling” in her left knee.
5
21. On January 7, 2004, Dr. Landvater wrote that Claimant could only work four hours per day because of her work related right knee problem. Dr. Landvater reiterated that opinion on January 27th when she diagnosed a meniscal tear in Claimant’s right knee of a year’s duration.
22. In January 2004, Dr. Jensen also saw the Claimant, noting that she was alert and oriented, but making no mention of mental deficits.
23. Dr. Williams noted on a prescription pad dated January 19, 2004 that Claimant had work related fasciitis. He may have been unaware that Claimant had only been working half time for two weeks and not at all for several months before that.
24. On February 26, 2004, Claimant was in a motor vehicle accident (MVA). When she was examined a few days later, it was noted that she had a headache and some dizziness, although dizziness predated the MVA. It was also noted that she had an upper back strain.
25. By April 2004, Claimant’s headaches had resolved and she was back to work half time performing the same work she had been doing before the MVA.
26. On May 5, 2004, Dr. Landvater operated on Claimant’s right knee for what was determined to have been a work related meniscal tear from the fall in March 2003.
27. A July 16, 2004 Physical therapy note recorded Claimant’s comment that “I get dizzy since I started coming here.”
28. Dr. Landvater released Claimant to work at modified duty from August 4, 2004 to September 2, 2004, four hours a day.
29. On August 17, 2004, Claimant reported to a physical therapist that she was working four hours a day, limping a lot at work and “they don’t like it.”
30. On August 30, 2004, a therapist noted that Claimant’s pain behaviors were hindering her progress. She “declined” to perform some recommended activities. And she reported limping and being sore at work after moving some things. Yet, she also reported walking two hours at a fair the previous Sunday.
31. In September 2004, Claimant spent one day at work on the building inspection and inventory.
32. Claimant worked until August 2005 when her employment at National Life ended. During the time Claimant worked after her injury, she did less physical work, but was assigned to tasks that required more computer work. She was terminated because of her inability to perform physical functions necessary for her job, not because of any mental disabilities.
6
33. Dr. Landvater placed Claimant at medical end result on November 2, 2004 with 4% whole person impairment for the injury to her right knee from the March 2003 fall at work.
34. At work, Claimant did not show any signs of problems with memory or concentration, even when she was on light duty part-time work in August of 2003.
35. Claimant had satisfactory performance evaluations at work from June 2004 through March 2005.
36. A private investigator videotape shows Claimant walking without a cane, even when it was snowing. Although slow while walking, Claimant was able to hold items in her arms and maintain her balance. She did not use a cane at the hearing, although she limped when walking.
37. One of Claimant’s activities is bingo, which she plays with eighteen cards.
Experts
38. Dr. Victor Gennaro is an orthopedic surgeon who evaluated this case for the Claimant. Based on his examination and history that Claimant’s knee was painful as she descended the stairs in August 2003, Dr. Gennaro opined that the original work related injury led to that fall. He based that opinion on the fact that she had an untreated meniscal tear in that knee at the time of the fall, a diagnosis well supported by Dr. Landvater’s records and surgical findings. However, Dr. Gennaro was not able to link the fasciitis to Claimant’s work.
39. Dr. Gennaro opined that Claimant is unable to return to gainful employment because of her cognitive difficulties, deconditioning and painful knees.
40. In March of 2006, Dr. Gennaro opined, and I find, that Claimant had not yet reached medical end result for her left shoulder and left knee, injuries she sustained when she fell down the stairs at home in August of 2003.
41. Dr. John Johansson, medical director of Vermont Center for Occupational Rehabilitation, performed an IME of the Claimant in 2004. At that time, she was working full eight hours days, with breaks as needed. Claimant provided a history to Dr. Johansson without any signs of anomia or memory problems. When he saw her again in 2005, when Claimant had been out of work with foot problems, he opined that she could return to work with good footwear.
7
Functional Capacity Evaluations
42. Louise Lynch performed a functional capacity evaluation on Claimant in January 2006. Ms. Lynch understood that Claimant used a cane when she walked outside, a finding inconsistent with the videotape. After testing, Ms. Lynch concluded that Claimant had a part-time sedentary work capacity. She opined, based on Claimant’s physical limitations and her observations, that Claimant is not employable in the competitive work place.
43. Leslie Bell performed a functional capacity evaluation of the Claimant in April 2006. During that evaluation, Claimant self limited in 25% of the tasks, behavior that “influenced the outcome of the test.” Ms. Bell determined that Claimant had a sedentary work capacity for an eight-hour day based on that evaluation. Further, she opined that Claimant could navigate stairs only rarely, such as for entering a building, but should not have regular stare climbing throughout the day.
Vocational Rehabilitation Opinions
44. George Fotinopoulos, Vocational Rehabilitation (VR) Counselor, initially determined that Claimant was entitled to vocational rehabilitation services. By agreement of the parties, an extension was granted for the submission of a rehabilitation plan. Claimant now alleges that the carrier refused to pay for VR services. The carrier alleges that Mr. Fotinopoulos never followed up after the extension was granted. Regardless, Claimant never received VR services.
45. John May, Vocational Rehabilitation Counselor, performed a forensic vocational assessment in this case. He based his opinions on a private investigator videotape, functional capacity evaluations, Claimant’s vocational history, the medical records and his VR expertise. He concluded that Claimant would benefit from vocational rehabilitation services that would “enhance her employability.” He predicted that with such services, Claimant will return to gainful employment.
Expert Opinions
Head injury
46. Highly disputed is whether Claimant suffered a head injury in the fall down the stairs, and if so, whether such an injury, combined with other injuries, disables her. In support of her claim is the opinion from Dr. Solomon, based on neuropsychological examinations. Dr. Solomon is the director and founder of the Memory Clinic. He opined that Claimant meets the criteria for a traumatic brain injury (TBI) for both of her work related falls. That opinion is based on a comparison in what he determined was her pre injury IQ, school performance, and current testing. Based on cognitive deficits, he assessed her neuropsychological impairments at 25% whole person.
8
47. Dr. Solomon’s opinion was based in part on an inaccurate history Claimant and her cousin gave him. For example, they described retrograde and posttraumatic amnesia that is recorded nowhere in the records. They also described a precise mechanism of the fall —falling backwards and hitting her head multiple times—that is described to Dr. Solomon for the first time in the several years since the accident.
48. Dr. Peyser, also a neuropsychologist with expertise working with patients who have had brain injuries, evaluated the Claimant for the defense. Based on the records and her expertise, Dr. Peyser found no record of posttraumatic amnesia, which is relevant to the issue of head injury. Retrograde amnesia is not relevant to the inquiry, in her opinion. Dr. Peyser, too, tested Claimant, finding no residual cognitive deficits from the falls. Claimant described cognitive losses to Dr. Peyser, yet those losses are not recorded in the records until September 2005. Claimant described difficulty finding words, yet did not demonstrate that difficulty during interview. Based on testing, Dr. Peyser attributed low or borderline results to low effort. Dr, Peyser concluded that, with the exception of Claimant’s self-reports, “there is no evidence …that Ms. Fisher suffered a head injury with significant cognitive deficits to interfere with her function on the job or in daily life.”
Attorney fees and costs
49. Claimant submitted evidence that her attorneys worked 170.3 hours on this claim and paralegals 5.8 hours. She incurred $6,629.78 in necessary costs, including $900 for Dr. Solomon’s record review and $1,000 for Dr. Gennaro’s two-hour preparation and one hour of deposition testimony.
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). This Claimant must establish by sufficient credible evidence the character and extent of the injury, as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984).
2. Where the claimant’s injury is obscure and the layperson could have no well-grounded opinion as to its nature or extent, expert testimony is the sole means of laying a foundation for an award for both compensability issues as well as the extent of the award sought. Lapan v. Berno’s, Inc., 137 Vt. 393 (1979).
Causation of Second fall
3. Every natural consequence of a work related injury is also compensable. See Fleury v. Legion Ins., Opinion No. 43-02WC (2002) (citing 1 Larson’s Workers’ Compensation Law. § 10.00).
9
4. Three factors convince me that it is more probable than not that the work related injury led to the fall at home. First, Claimant testified convincingly that her knee had given way twice before the fall at home. Second, at the time of the fall she had an untreated torn meniscus. Third, an orthopedic expert familiar with the signs and symptoms of a torn meniscus, Dr. Gennaro, attributed the fall to the untreated tear.
5. As a result of the second fall, Claimant injured her head, left wrist, shoulder, leg and her back.
6. Any head injury she may have sustained has since resolved without residual deficits, a conclusion well supported by Dr. Peyser’s opinion. Claimant’s work performance after that fall and her embellished history undercut the opinion proffered by Dr. Solomon to the contrary. Therefore, Claimant is not entitled to permanent partial disability benefits for a traumatic brain injury.
7. To prevail on her claim for permanent total disability (PTD), Claimant must prove that a work related injury or injuries caused impairments that render her unable to sustain regular gainful employment. Her age, experience, training, education, occupation and mental capacity are all factors relevant to a finding of PTD. 21 V.S.A. § 644(b). WC Rule 11.3100. One who is permanently and totally disabled must have no reasonable prospect of finding regular employment.” § 645.
8. When one is unable to return to work for which she has had previous training or experience, the worker is entitled to vocational rehabilitation services. 21 V.S.A. § 641(a).
9. Claimant has failed to prove that she is permanently and totally disabled. Although she may not have had the most successful academic record as a child, Claimant has proven herself a competent, affable and dedicated worker for her adult life. It is unfortunate that employment with National Life did not work out for her. It is also unfortunate that vocational rehabilitation services were not provided. However, she is capable of participating in vocational rehabilitation.
10. Therefore, Claimant is entitled to vocational rehabilitation benefits. She is also entitled to temporary total disability retroactive to their discontinuance until she reaches medical end result for the physical injuries incurred in the work related fall. Interest on those benefits must be calculated from the date those benefits were due until paid. 21 V.S.A. § 664.
11. Pursuant to 21 V.S.A. § 678(a) and WC Rule 10.000, a prevailing Claimant is entitled to a mandatory award of necessary costs and discretionary award of reasonable attorney fees when she prevails. Claimant submitted evidence that her attorneys worked 170.3 hours on this claim and paralegals 5.8 hours. She incurred $6,629.78 in necessary costs.
10
12. The fees requested are awarded at $90 .00 per hour for attorney time under WC Rule 10.1210 and $60.00 per hour for paralegal time. C. C. v. Eveready Battery Co, Opinion No. 38-05 (2005). Although Claimant has not prevailed on the permanent total disability claim, she has proven that the second fall is compensable, a highly contested claim. She has prevailed on her claim for additional temporary total disability benefits. The hours her attorney worked to achieve this success were reasonable.
13. The costs associated with the unnecessary aspects of the claim, including Dr. Solomon’s fees, must be subtracted from the total cost request. In other respects, the costs were necessary to the successful aspects of the claim.
Summary
14. In sum, Claimant’s August 19, 2003 fall at home was a compensable result of her March 10, 2003 work related injury. As a result of that fall, Claimant suffered a head injury that has resolved as well as shoulder and leg injuries that have not yet reached medical end result. She is entitled to temporary total disability benefits until she reaches medical end result or successfully returns to work. 21 V.S.A. § 642; 643a. Claimant is not permanently and totally disabled as a result of her work related injury or injuries.
ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law, this claim for permanent total disability benefits is DENIED. However, Defendant is ORDERED to:
• Provide vocational rehabilitation benefits to Claimant;
• Pay TTD retroactive to the discontinuance with interest accruing from the date payment would have been made had the second fall been accepted until paid;
• Pay attorney fees and costs:
• Otherwise adjust the claim for the second fall, including payment of permanent partial disability benefits when Claimant reaches medical end result.
Dated at Montpelier, Vermont this 17th day of November 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.

K. C. v. Windham Northeast Supervisory Union (November 17, 2006)

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

K. C. v. Windham Northeast Supervisory Union (November 17, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
K. C. Opinion No. 45-06WC
By: Margaret A. Mangan
v. Hearing Officer
Windham Northeast Supervisory Union For: Patricia Moulton Powden
Commissioner
State File No. X-01602
Hearing held in Bellows Falls on March 21, 2006
Record closed on June 30, 2006
APPEARANCES:
J. Christopher Callahan, Esq. for the claimant
Keith J. Kasper, Esq. for the defendant
ISSUE:
Did the claimant suffer an injury at work on September 2, 2005?
OFFICIAL DEPARTMENT FORMS:
1. Form 1, Employee’s Claim and Employer First Report of Injury, for September 2, 2005 injury, reported September 6, 2005 and filed on September 8, 2005.
2. Form 2, Denial of Workers’ Compensation benefits by the carrier.
3. Form 6, Claimant filed written Notice and Application of Hearing in the form of a letter filed on September 28, 2005.
EXHIBITS:
Joint I: Medical Records
Defendant’s A: Letter of Resignation
Employment Records
School Schedule
OTHER EXHIBITS:
Claimant’s A: Witness Statements
2
THE CLAIM:
The Claimant seeks Temporary Total Disability Benefits, medical benefits related to her back injury, and attorneys’ fees.
FINDINGS OF FACT:
1. Claimant began working for Defendant as a para-educator on August 29, 2005.
2. As a para-educator, the Claimant worked with a special needs child and was required to assist her in walking short distances and lift the child in and out of a wheelchair.
3. The Claimant’s average weekly wage was $403.98.
4. The Claimant offered a letter of resignation to the school principal on August 31, 2005.
5. Claimant agreed to continue working for the Defendant until a replacement could be found.
6. There were no witnesses to the Claimant’s alleged work-related injury.
7. The school recorded no seizures in the school health records for September 2, 2005.
8. On Friday, September 2, 2005, the school schedule reflected that there were no extracurricular gym activities after lunch.
9. The Claimant worked until the end of the school day on September 2, 2005.
10. On the morning of Tuesday, September 6, 2005, the Claimant called the school to report that she would be taking a sick day. Because this was late notice, the Claimant worked for a brief time that morning until a replacement could be located.
11. After leaving the school, the Claimant was seen at Urgent Care in Bellows Falls where she was diagnosed with lower back strain.
12. The Claimant then returned to the school to fill out workers’ compensation paperwork.
13. The Claimant saw Dr. Peake, her primary care physician, September 9 and again on September 16, 2005. Dr. Peake wrote notes excusing the Claimant from work after each examination.
14. After conservative treatment was unsuccessful at relieving the Claimant’s pain, Dr. Peake referred the Claimant to Dr. Gugliemo at Upper Valley Neurology on September 20, 2005.
15. An MRI taken September 21, 2005 revealed that the Claimant had disk herniation at L4-5 with right L5 nerve root impingement.
3
16. On September 26, 2005, Dr. Guglielmo diagnosed the Claimant with significant right L5 radiculopothy secondary to a herniated right L4-5 disk. Ultimately, the Claimant and Dr. Guglielmo agreed that surgery would best resolve the Claimant’s condition.
17. Dr. Guglielmo’s records indicate that the Claimant said she injured her back removing the child from her wheelchair because the child was seizing.
18. Soon after Dr. Guglielmo’s diagnosis, the Claimant learned that she was pregnant. Because the surgery could harm the Claimant’s unborn child, the Claimant’s doctors have recommended that she wait until she is postnatal before having the surgery.
19. The Claimant has not worked since September 6, 2005.
Allegations:
The Claimant alleges that: she injured her back at work on Friday, September 2, 2005 while lifting the special needs child from the floor into her wheelchair. She then wheeled the child into the lunchroom. Next, she exited the building and ate lunch alone in her car. After lunch, she reentered the building and wheeled the child from the lunchroom into the gym. Then, the Claimant wheeled the child into a classroom with other students and teachers until the end of the school day. She then drove herself home. The Claimant also testified that she experienced a very high level of pain as she performed all of the activities mentioned above. The Claimant did not report the alleged injury until the following Tuesday.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963). The claimant must establish by sufficient credible evidence the character and extent of the injury and disability as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984).
2. There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
3. Furthermore, in unwitnessed cases where the claimant does not report the injury for a period of time, “the trier of fact must weigh carefully the credibility of witnesses, the initial medical reports, and explore any inconsistencies and hidden or not-so-hidden motivations.” Fanger v. Village Inn, Opinion No. 5-95WC (1995).
4
4. Several factors discredit the Claimant’s description of events. First, there are no witnesses to the alleged accident. Second, the Claimant testifies here that she injured her back lifting the child into a wheelchair, but Dr. Guglielmo’s records indicate that the Claimant said she injured her back removing the child from her wheelchair because the child was seizing. Third, the school schedule shows that there were no gym activities after lunch that day. Fourth, the Claimant spent the latter part of the school day in the company of students and teachers, supposedly in excruciating pain, yet no one noticed any outward manifestation of her discomfort. Fifth, the Claimant waited until the following Tuesday, after a long Labor Day weekend, before notifying the school of the injury or seeking medical attention. Furthermore, the Claimant had given her resignation just a few days prior to this incident.
5. The Claimant’s medical evidence clearly shows that she suffers from a back injury. However, the high number of inconsistencies combined with the fact that the alleged injury was unwitnessed and not reported in a timely fashion cast a high level of doubt on whether that injury was connected to the Claimant’s employment. Consequently, the Claimant has shown no more than a possibility that the injury may have happened in connection with her employment.
ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law, the Claimant’s claim for Temporary Total Disability Benefits, medical benefits related to the Claimant’s back injury, and the Claimant’s attorneys’ fees are DENIED.
Dated at Montpelier, Vermont this 17th day of November 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 20, 2007)

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

M. D. v. DEW Construction (August 20, 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
OPINION AND ORDER
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
Defendant’s Exhibit 4: 9/12/06 Transcription of phone call between Claimant and Peter Wells
2
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.
3
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.
4
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.
5
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.
6
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.
7
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.
8
9. The Department also finds that Claimant reached medical end result for his original work injury on May 9, 2006. 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 20th 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.

Craig Hankins v. Fred’s Plumbing & Heating (April 5, 2010)

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

Craig Hankins v. Fred’s Plumbing & Heating (April 5, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Craig Hankins Opinion No. 13-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Fred’s Plumbing & Heating
For: Patricia Moulton Powden
Commissioner
State File No. X-04015
OPINION AND ORDER
Hearing held in Montpelier, Vermont on November 6, 2009
Record closed on December 10, 2009
APPEARANCES:
Steven Robinson, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUES PRESENTED:
1. Has Claimant reached an end medical result for his compensable work-related injury?
2. If yes, is Claimant entitled to permanent total disability benefits?
3. If not, is Claimant entitled to additional temporary total disability benefits?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Vocational rehabilitation records
Claimant’s Exhibit 1: Deposition of Robert McLellan, M.D., October 27, 2009
Claimant’s Exhibit 2: Curriculum vitae, Robert McLellan, M.D.
Claimant’s Exhibit 3: Claimant’s Form 8, January 18, 2007
Defendant’s Exhibit A: Various surveillance reports with accompanying DVDs
CLAIM:
Permanent total disability benefits pursuant to 21 V.S.A. §644
Alternatively, temporary total disability benefits pursuant to 21 V.S.A. §642
2
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 contained in the Department’s file relating to this claim.
Claimant’s Work Injury
3. Claimant worked for Defendant as a propane delivery truck driver. On January 23, 2006 he slipped and fell on the ice while making a delivery. Claimant fell to the ground with a twisting motion and landed hard on his back. He immediately felt pain in his lower back, with pain and numbness radiating down his right leg.
4. Claimant’s medical records reveal at least two prior instances of low back pain, one in the fall of 2003 and another one in early 2004. In both cases, Claimant complained of severe unrelenting back pain and demonstrated pain behaviors that appeared to be over-exaggerated. Also in both cases Claimant required very high dosages of narcotic pain medications to control his symptoms, apparently because he has a very high opioid metabolism rate.
5. As a result of the January 2006 fall, Claimant suffered a right-sided L5-S1 disc herniation. Consistent with his prior episodes of low back pain, Claimant complained of severe, relentless pain, exacerbated by even light activity and alleviated only briefly by extremely high dosages of narcotic analgesics. Conservative attempts to manage his symptoms, including physical therapy, epidural steroid injections and facet blocks, all failed.
6. In December 2006 Claimant underwent surgery, a right-sided L5-S1 microdiscectomy performed by Dr. Tranmer. Post-operatively he continued to experience severe lumbar radiculopathy and debilitating pain. Diagnostic studies revealed a recurrent disc herniation. In August 2007 Claimant underwent a second surgical procedure at the same level. Once again, his symptoms continued virtually unabated.
Current Symptoms and Treatment Recommendations
7. Claimant’s symptoms today are for the most part unchanged. He experiences severe low back pain, with pain and numbness radiating down his right leg and into his right foot. Often he suffers painful muscle spasms as well. He sleeps poorly at night and takes sporadic cat-naps during the day to catch up. He needs help washing his back and cannot tie his own shoes. Claimant testified that on a good day, he can walk short distances, run errands in his truck (which is equipped with a seat he finds comfortable), drive a riding lawn mower, push a grocery cart and carry a bag of groceries. On a bad day, he can do little more than sit and read.
3
8. None of the doctors who have treated or examined Claimant since his second surgery can find a specific anatomical cause for the severe symptoms he continues to experience. Virtually every doctor has commented on the extreme pain behaviors Claimant exhibits on examination. They have described Claimant at various times as “writhing in pain,” moaning audibly, grimacing, crying and presenting “in pain extremis.”1 Most if not all also have expressed concern about Claimant’s ongoing use of narcotic pain medications, which he continues to take in very high dosages, though none have found any evidence that he is misusing the drugs in any way.
9. Currently Claimant continues to treat with Dr. McLellan, the chief of occupational medicine at Dartmouth Hitchcock Medical Center. Dr. McLellan is board certified in occupational medicine and experienced in pain management. Dr. McLellan first evaluated Claimant in April 2006, at the referral of Dr. Haas, Claimant’s treating physician at the time. Dr. McLellan again evaluated Claimant in February 2009, and has been monitoring his care since then.
10. In Dr. McLellan’s opinion Claimant now suffers from post-laminectomy syndrome, which essentially refers to a patient for whom surgery has failed to alleviate ongoing back and leg pain. Dr. McLellan acknowledges that spine imaging studies have not revealed a specific “pinch” point or other anatomic basis for Claimant’s lower extremity pain. For this reason, and also because Claimant already has failed two previous disc surgeries, Dr. McLellan does not consider him to be an appropriate candidate for additional surgery. This is consistent with the opinions of other consulting physicians as well.
11. Dr. McLellan also does not consider Claimant to be an appropriate candidate for a functional restoration program. Such a program encourages patients to develop appropriate coping strategies so that they are able to focus less on their pain and more on increasing their functional abilities. Psychological counseling and cognitive behavioral therapy are key components of functional restoration.
12. According to Dr. McLellan, unless the patient welcomes the concept and is interested in pursuing this type of approach, functional restoration is unlikely to be successful. Unfortunately, by all reports Claimant lacks insight as to the extent to which his symptoms might be driven at least in part by psychological factors. He appears stubbornly resistant, therefore, to the possibility that psychologically-based treatment might help alleviate his pain experience and thereby improve his functioning.
1 Claimant demonstrated some of these pain behaviors during the formal hearing. He frequently grimaced, sighed, changed his position while seated, stood up, leaned on his chair and moved about the room.
4
13. This resistance was particularly evident in the context of the comprehensive pain evaluation Claimant underwent, at Dr. McLellan’s referral, with Dr. Fanciullo, a Dartmouth Hitchcock pain specialist. In his June 11, 2009 office note, Dr. Fanciullo described the visit in some detail:
I asked him early on about whether or not he had seen a mental health practitioner or a psychologist or psychiatrist. He responded that he does not like it when people talk to him about psychiatry. He spent almost the entire visit convincing me that he had pain and trying to convince me that he had requisite psychological skills to determine that he does not need to see a psychologist when it was so obvious that he does need to see a psychologist. . . . I explained to him on multiple occasions that this has been going on for over three years now and he really has to try to get over it, and he has not been able to get over it by himself and he needs some help to try to help him get over it.
. . .
Plan: We spent a long time together today . . . with me explaining to him that I would not be able to care for him unless he saw a psychiatrist. He insisted over and over that this problem was not in his head.
. . .
I have spent, as I mentioned, a great deal of time with him today talking about coping skills, the fact that it is likely that even if the opioids work, they will only reduce his pain by 30% and that he needs to learn how to cope with the pain and have . . . value [in] his life despite the fact that he has the pain and that he must eliminate the dramatic and abnormal pain behaviors that he exhibits so prominently. I think he disagrees with everything about the plan . . .
14. There is no indication in the medical records that Claimant ever pursued the psychiatric treatment upon which Dr. Fanciullo had insisted. At this point, given his low level of functioning and extreme pain focus, Dr. McLellan no longer considers him to be an appropriate candidate for functional restoration. Dr. McLellan testified that assuming Claimant’s attitude towards such an approach remains unchanged, in his opinion Claimant is at end medical result for his January 2006 injury.
15. Defendant presented evidence from three independent medical evaluators to the effect not only that Claimant is at end medical result, but also that he reached that point some time ago. Dr. Gennaro conducted an independent medical evaluation on April 3, 2008 and later determined that Claimant had reached an end medical result as of August 11, 2008. Dr. Ensalada performed a medical records review and, based on Dr. Gennaro’s earlier exam, determined that Claimant had reached an end medical result “no later than” April 3, 2008. Last, Dr. Kirkpatrick conducted an independent medical evaluation in October 2009 and concluded that Claimant likely had achieved end medical result in early 2009.
5
16. In reaching their conclusions as to end medical result, both Dr. Gennaro and Dr. Kirkpatrick agreed that Claimant’s ongoing symptoms were either caused or aggravated by his January 2006 work injury. Notably, however, Dr. Ensalada came to view Claimant’s presentation differently.2 In Dr. Ensalada’s opinion, Claimant suffers from both somatoform pain disorder and an opioid abuse disorder. Dr. Ensalada believes that it is those two conditions, and not the January 2006 work injury, that account for Claimant’s persistent reports of severe pain and total incapacity.
17. Somatoform pain disorder refers to a mental or behavioral condition characterized by subjective complaints that far exceed any objectively determined evidence of physical pathology. It is a recognized behavioral disorder according to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). Patients who suffer from this condition unconsciously exaggerate their physical symptoms for psychological purposes.
18. Dr. Ensalada pointed to Claimant’s prior episodes of low back pain (referred to in Finding of Fact No. 4 above) as evidence of his “propensity to somaticize.” He noted that in both 2003 and 2004 Claimant’s treating physicians had commented on Claimant’s exaggerated pain behaviors and heavy use of narcotic pain medications. With that in mind, Dr. Ensalada concluded that at the time of Claimant’s January 2006 work injury both his somatoform pain disorder and his opioid abuse disorder were “active and pre-existing,” and that the 2006 event had neither caused nor aggravated nor accelerated those conditions in any way.
19. Dr. Ensalada acknowledged that he is not a licensed psychologist or psychiatrist and that he arrived at his diagnosis without personally having examined or interviewed Claimant. He also acknowledged that he previously had reviewed the medical records relating to Claimant’s prior episodes of low back pain in the context of his 2007 records review, but did not attribute Claimant’s symptoms to a psychological condition rather than a physical one at the time.
Claimant’s Work Capacity
20. Claimant has not worked since his January 2006 accident. In July 2009 he underwent a functional capacities evaluation. Based on that testing, the evaluator concluded that Claimant did not have sufficient work capacity to seek gainful employment. In reaching that conclusion, the evaluator noted that Claimant had self-limited on certain tests due to pain, such that his actual physical strength might have been somewhat greater than what he demonstrated. Even apart from Claimant’s strength testing, however, the evaluator determined that Claimant’s low tolerance for sitting, standing or weighted lifting precluded even sedentary work.
2 Initially, following an October 2007 medical records review Dr. Ensalada determined that the relationship between Claimant’s January 2006 work injury and the subsequent development of his radicular symptoms was “one of aggravation.” At Defendant’s request, Dr. Ensalada took a “second look” at Claimant’s medical records in May 2009, and in the course of that review reached his current opinion as to causation.
6
21. Dr. McLellan concurs in this assessment of Claimant’s work capacity. In his opinion, Claimant is permanently and totally disabled. Dr. McLellan testified that the thought of Claimant being employable is incompatible with his presentation on exam – his pain-focused behaviors, his inability to stand straight and his described low level of functioning.
22. Defendant’s medical experts disagree. Drs. Gennaro, Ensalada and Kirkpatrick all opined that Claimant has a sedentary work capacity. In reaching this conclusion, both Dr. Gennaro and Dr. Ensalada discounted the results of the July 2009 functional capacities evaluation. In their opinion, an FCE measures only what a patient feels capable of doing on a particular day, and the results may be skewed by his or her fear of pain or reinjury. Consequently, while such testing may be helpful in terms of identifying a patient’s functional capacity, it is not necessarily definitive.
Vocational Rehabilitation
23. At Defendant’s referral, in August 2006 Claimant met with John May, a certified vocational rehabilitation counselor, to begin the process of determining whether Claimant was entitled to vocational rehabilitation services. At the meeting, Mr. May obtained information from Claimant as to his educational background and prior work experience. At the conclusion of the meeting Mr. May asked Claimant to review, sign and send back a medical release form so that Mr. May could review Claimant’s medical records.
24. Despite repeated subsequent requests, Claimant refused either to sign the medical release form or to provide a written explanation for his refusal to do so. Ultimately, Mr. May determined that Claimant was not interested in pursuing vocational rehabilitation services and closed his file.
25. Mr. May testified that had Claimant indicated his willingness to continue with the entitlement process, the next step would have been to identify a suitable vocational goal. In order to do so, Mr. May testified, he might have sought a more formal assessment of Claimant’s functional abilities, aptitudes and skills. In addition, he might have investigated various training options, adaptive equipment and assistive technologies that conceivably could help expand Claimant’s vocational options. Last, Mr. May testified that he might have reviewed Claimant’s medical treatment options to see how pursuing one or another would impact his vocational abilities. Without having done any of these things, Mr. May testified that he was unable either to identify an appropriate vocational goal or to develop a suitable return to work plan.
26. Claimant testified that he only vaguely recalled his interactions with Mr. May. He stated that he was in great pain at the time of Mr. May’s initial visit and that subsequently, during the time when Mr. May would have been sending his follow-up letters, he was recovering from his second surgery. Thereafter, in early 2007 Claimant sought to change vocational rehabilitation providers from Mr. May to another counselor who had been recommended to him. However, because he used the wrong form to do so the Department never acted on his request, and Claimant never pursued the matter himself.
7
27. At the request of Claimant’s attorney, Greg LeRoy, a certified vocational rehabilitation counselor, met with Claimant to evaluate his ability to benefit from vocational rehabilitation services and return to gainful employment. Mr. LeRoy also reviewed Claimant’s medical records.
28. In Mr. LeRoy’s opinion, Claimant’s chronic pain, his use of narcotic pain medications, his poor coping skills and his psychologically driven pain behaviors preclude him from sustaining competitive employment, either with or without vocational rehabilitation services. In reaching this conclusion, Mr. LeRoy relied heavily on the results of the July 2009 functional capacities evaluation, which determined that Claimant lacked even a sedentary work capacity, and also on Dr. McLellan’s determination that Claimant had reached an end medical result and was permanently and totally disabled.
29. According to Mr. LeRoy, vocational rehabilitation services are appropriate only in cases in which the injured worker either has a viable work capacity or reasonably is expected to regain some with further treatment. Vocational rehabilitation services alone cannot create a work capacity. Thus, Mr. LeRoy testified, given that Claimant has reached an end medical result without having regained any work capacity, there is no basis for providing vocational rehabilitation services.
Surveillance
30. Defendant introduced evidence of eighteen non-consecutive days of surveillance conducted over a period of fourteen months, from August 2008 through October 2009. In addition to the investigators’ written reports, Defendant introduced approximately five hours of video documentation. The videos show Claimant performing such activities as mowing his lawn with a riding mower, driving to and from various locations, walking, standing, bending at the waist, pushing a shopping cart, and using a broom to clear snow from his truck.
31. The videos do not depict any clear instances of the type of marked pain behaviors Claimant’s doctors often noted. Notably, there is no audio component to the videos, so it is impossible to discern whether Claimant might have been expressing pain at any time while he was being monitored. Nevertheless, he is not observed to be visibly writhing in pain, grimacing or crying, for example. There are a few occasions during which it appears Claimant might be favoring his right leg slightly while walking, and one occasion during which it appears he might be leaning on a shopping cart for support, but even these instances are not so clearly depicted as to be conclusive. In all, at least during the five hours during which filming occurred, the videos appear to show Claimant attending to his daily activities in little, if any, apparent distress.
32. When asked to comment on the surveillance, Dr. Gennaro testified that he only reviewed a few minutes of the videos and that he saw nothing that was inconsistent with the July 2009 functional capacities evaluation. Dr. Ensalada testified that he watched all of the videos, and that Claimant’s behavior appeared very different from what had been documented in the medical records he had reviewed.
8
33. Dr. McLellan did not watch the videos. Upon hearing a description of the types of activities depicted, he acknowledged that they seemed at odds with Claimant’s typical presentation during most of his office visits. Dr. McLellan also acknowledged, however, that he would expect Claimant to have both “good” and “bad” days, and that he would encourage him to be as active as possible every day.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
3. The dispute here centers on whether Claimant’s January 2006 work injury has rendered him permanently and totally disabled. Claimant points to three pieces of evidence in support of his claim – first, the July 2009 functional capacities evaluation, which determined that he lacked even a sedentary work capacity; second, Dr. McLellan’s opinion that he is permanently and totally disabled; and third, Mr. LeRoy’s conclusion that he is not an appropriate candidate for vocational rehabilitation services.
4. Against this evidence, Defendant counters with the opinions of Drs. Gennaro, Ensalada and Kirkpatrick, all of whom determined that Claimant has a sedentary work capacity. Beyond that, Defendant argues that Claimant failed to engage properly with the vocational rehabilitation services that Mr. May offered him in 2007, and that it is premature to consider him permanently unemployable until he does so. Third, Defendant points to Dr. Ensalada’s diagnosis of somatoform pain disorder rather than the January 2006 work injury as the cause of Claimant’s current symptoms. Last, Defendant asserts that the surveillance reports and videos document Claimant engaging in activities that are inconsistent with his subjective complaints of pain and previously demonstrated pain behaviors.
9
Permanent Total Disability
5. Under Vermont’s workers’ compensation statute, a claimant is entitled to permanent total disability benefits if he or she suffers one of the injuries enumerated in §644(a), such as total blindness or quadriplegia. In addition, §644(b) provides:
The enumeration in subsection (a) of this section is not exclusive, and, in order to determine disability under this section, the commissioner shall consider other specific characteristics of the claimant, including the claimant’s age, experience, training, education and mental capacity.
6. The workers’ compensation rules provide further guidance. Rule 11.3100 states:
Permanent Total Disability – Odd Lot Doctrine
A claimant shall be permanently and totally disabled if their work injury causes a physical or mental impairment, or both, the result of which renders them unable to perform regular, gainful work. In evaluating whether or not a claimant is permanently and totally disabled, the claimant’s age, experience, training, education, occupation and mental capacity shall be considered in addition to his or her physical or mental limitations and/or pain. In all claims for permanent total disability under the Odd Lot Doctrine, a Functional Capacities Evaluation (FCE) should be performed to evaluate the claimant’s physical capabilities and a vocational assessment should be conducted and should conclude that the claimant is not reasonably expected to be able to return to regular, gainful employment.
7. A finding of odd-lot permanent total disability is not to be made lightly. Gaudette v. Norton Brothers, Inc., Opinion No. 49-08WC (December 3, 2008). For that reason, and as Rule 11.3100 makes clear, typically there must be evidence to establish first, what the injured worker’s functional capabilities are, and second, that no viable vocational options exist within those capabilities. Id.; Prescott v. Suburban Propane, Opinion No. 42-09WC (November 2, 2009).
8. Here, I accept the results of the July 2009 functional capacities evaluation, together with Dr. McLellan’s opinion, as the most credible evidence of Claimant’s functional capabilities. Based on that evidence, I find that Claimant’s low tolerance for sitting or standing, his heavy reliance on narcotic pain medications and his pain-focused behaviors preclude even a sedentary work capacity. While it may be true, as Drs. Gennaro and Ensalada attested, that a functional capacities evaluation measures only what a patient feels able to do on a particular day, Defendant provided no objective evidence that Claimant probably would have tested better on a different day.3 Without such evidentiary support, Defendant’s expert opinions are unpersuasive.
3 Of note, neither Dr. Gennaro nor Dr. Ensalada could point to any specific activities captured on the surveillance videos that were inconsistent with the results of Claimant’s functional capacities evaluation.
10
9. I agree with Claimant’s vocational expert, furthermore, that vocational rehabilitation has no place in a case where, as here, the injured worker lacks the functional capacity to support even sedentary work. As Mr. LeRoy cogently explained, vocational rehabilitation services alone cannot create a work capacity where one does not otherwise exist.
10. Last, I find credible Dr. McLellan’s assertion that Claimant is unlikely to benefit from further treatment, including functional restoration, and that therefore his disability is now permanent. Were Claimant a different person, one less focused on his pain and more open to the interplay between the mind and the body, he might be receptive to a psychologically based treatment approach. Unfortunately, however, Dr. McLellan appropriately acknowledged that he is not. Indeed, not even Defendant’s medical experts have recommended further treatment along these lines.
11. Having concluded that a functional restoration program is not a viable treatment option, I accept as most credible Dr. Gennaro’s determination that Claimant reached an end medical result for his January 2006 work injury on August 11, 2008.
Somatoform Pain Disorder
12. I conclude, therefore, that Claimant has met his burden of proving that he is permanently and totally disabled. To establish his right to benefits, however, Claimant also must show that his disability was either caused or aggravated by his January 2006 work injury. Defendant points to Dr. Ensalada’s expert opinion as evidence that it was not.
13. Dr. Ensalada testified that the best explanation for Claimant’s current symptoms and disability is somatoform pain disorder. According to him, this diagnosis is more a characteristic of Claimant’s psychological makeup, not a consequence of his January 2006 work injury.
14. I find Dr. Ensalada’s analysis unconvincing. First, although I acknowledge his impressive credentials, Dr. Ensalada is not a trained or licensed mental health professional. I question the propriety of accepting his diagnosis of a psychologically-based behavioral disorder without the benefit of more formal psychological testing and evaluation.
15. In addition, I find troubling the fact that Dr. Ensalada did not even interview Claimant himself, but rather based his diagnosis solely on his review of the medical records. Diagnosing a psychological condition is not the same as reviewing x-rays or MRI scans. To do so based only on second-hand reports noted in a cold medical record seems unreliable and unscientific.
11
16. Last, it is not clear to me from Dr. Ensalada’s testimony exactly what the basis for his diagnosis was. Certainly many doctors commented on Claimant’s pain-focused behaviors and propensity to magnify his symptoms. But presumably not every instance of symptom magnification merits a diagnosis of somatoform pain disorder. To the contrary, presumably this is where further psychological testing typically is called upon to provide the additional information necessary either to support or to refute a diagnosis of somatoform pain disorder. See, e.g., Karabegovich v. Monahan SFI, Opinion No. 37-09WC (September 29, 2009).
17. For all of these reasons, I find Dr. Ensalada’s analysis unpersuasive. I accept instead Dr. McLellan’s determination, with which both Dr. Gennaro and Dr. Kirkpatrick concurred, that Claimant’s current symptoms and disability were either caused or aggravated by his January 2006 work injury.
Surveillance
18. As a final defense, Defendant asserts that the surveillance reports and videos document activities that are at odds with Claimant’s subjective complaints and dramatic pain behaviors, so much so as to call his credibility into question and undermine any finding of permanent total disability. I disagree. The videos do no more than depict Claimant engaging in activities that he admitted he was able to undertake on a “good” day, such as using a riding lawn mower, driving in his truck and running errands. They do not show what he is able to do – or not – on a “bad” day. They are extremely limited in scope – just five hours of video spread out over a period of fourteen months – and have no audio component. I do not find in them sufficient evidence either to undermine Claimant’s own testimony or to negate the conclusions of his medical and vocational experts.
19. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $5,017.56 and attorney fees totaling $15,327.00. An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded.
20. As for attorney fees, Claimant’s request includes not only the fees incurred pursuing the current matter to formal hearing, but also fees incurred in 2007 and 2008 relating to issues that ultimately were resolved short of formal hearing. According to Workers’ Compensation Rule 10.1300, such fees are recoverable only in limited instances, under circumstances that do not apply here. I find that the total amount of fees incurred pursuing issues unrelated to the current hearing was $3,942.00; these fees are not recoverable. As to the remainder, which total $11,385.00, these lie within the Commissioner’s discretion. I find they are appropriate here, and therefore these fees are awarded.
12
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Permanent total disability benefits commencing on August 11, 2008;
2. Interest on the above amounts calculated in accordance with 21 V.S.A. §664;
3. Costs totaling $5,017.56 and attorney fees totaling $11,385.00.
DATED at Montpelier, Vermont this 5th day of April 2010.
_______________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Joanna McNally v. State of VT, Dept. for Children and Families

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

Joanna McNally v. State of VT, Dept. for Children and Families
STATE OF VERMONT
DEPARTMENT OF LABOR
Joanna McNally Opinion No. 31-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
State of Vermont, Department
for Children and Families For: Anne M. Noonan
Commissioner
State File No. BB-57803
OPINION AND ORDER
Hearing held in Montpelier, Vermont on July 14, 2011
Record closed on August 12, 2011
APPEARANCES:
Stephen Cusick, Esq., for Claimant
Andrew Boxer, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant entitled to temporary total disability benefits for the period from May 10, 2010 through August 9, 2010?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: First Report of Injury, 12/1/2009
Claimant’s Exhibit 2: Letter from Danielle Lewis, June 3, 2010
Claimant’s Exhibit 3: Workplace Safety Ergonomic Evaluation, 12/15/2009
Claimant’s Exhibit 4: Claim Questionnaire
Claimant’s Exhibit 5: Letter from Paul Madden, January 6, 2010
Claimant’s Exhibit 6: Request for Reasonable Accommodation, 1/12/10
Claimant’s Exhibit 7: Reasonable Accommodation Policy
Defendant’s Exhibit A: Physical therapy progress note, 8/6/10
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
2
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim. Judicial notice also is taken of the medical records admitted into evidence at the formal hearing in McNally v. State of Vermont, Department of PATH, State File No. Z-4152.
3. Claimant began working as a Call Center Benefit Program Specialist in Defendant’s Department for Children and Families in October 2009. Her duties included fielding telephone inquiries from benefit recipients, researching their cases and logging her activity, all electronically. The work required constant use of her computer mouse and keyboard for such functions as scrolling through multiple programs, typing and even answering the phone.
Claimant’s December 2009 Work Injury
4. Shortly after starting at the call center, in late November or early December 2009 Claimant moved to a different office. She quickly realized that her new workstation was not ergonomically correct, as it required her to reach too far with her right arm for her computer mouse. As a result, Claimant began to experience burning pain in her right shoulder, arm, wrist and hand.
5. Claimant reported her symptoms to Defendant as work-related, alleging an injury date of December 1, 2009. In addition, she voiced her workstation concerns to her supervisor, who arranged for an ergonomic evaluation. At the evaluator’s recommendation, Claimant’s computer was outfitted with a tray so that she could position her mouse over the number keys, thus reducing the stress on her right arm.
6. Claimant was particularly attuned to her need for an ergonomically correct workstation given her prior medical history. In 2008, while employed by another department within state government, she had been diagnosed with bilateral enthesopathy, or tendon damage, in her wrist, carpus and elbow. Although Defendant disputed Claimant’s claim that this condition was causally related to overuse from typing and data entry work,1 it endeavored nonetheless to adjust her workstation correctly so as to enable her to manage her symptoms effectively.
1 The Commissioner initially decided this claim in Defendant’s favor, McNally v. State of Vermont, Department of PATH, Opinion No. 43-09WC (November 3, 2009). Claimant appealed to the Vermont Supreme Court, which reversed and remanded the case back to the Commissioner for further clarification. McNally v. Department of PATH, 2010 VT 99. A decision on remand has not yet been issued.
3
7. This time as well, after a brief period of reduced work hours, and once her workstation was modified to make it more ergonomically appropriate, Claimant was able to obtain reasonable relief of her symptoms. By mid-February 2010 she had resumed her regular work activities and schedule. Although she continued to complain of some right shoulder pain, by early March 2010 her primary care provider, Dr. Kiely, noted that her “more distal arm issues from work are quieter.”
8. Defendant initially denied Claimant’s claim for workers’ compensation benefits on the grounds that her symptoms were not causally related to her work activities. Thereafter, at Defendant’s request, in mid-March 2010 Claimant underwent an independent medical evaluation with Dr. Backus, an occupational medicine specialist. As Dr. Kiely had, Dr. Backus diagnosed Claimant with enthesopathy of the right wrist and carpus. As he described it, Claimant had a pre-existing propensity for this condition, which had been well controlled until her move to a new workstation caused a temporary exacerbation. In his opinion, therefore, Claimant’s complaints were in fact work-related. I find this analysis persuasive.
9. In consideration of Dr. Backus’ analysis, Defendant reversed its denial and accepted Claimant’s claim for medical benefits causally related to her December 1, 2009 injury as compensable.
10. As noted above, by the time of Dr. Backus’ March 2010 evaluation Claimant’s workstation already had been modified so as to make it more ergonomically appropriate, and as a result her wrist and hand symptoms had resolved back to their pre-December 2009 baseline. With that in mind, Dr. Backus determined that Claimant had reached an end medical result for her December 1, 2009 work injury. Nevertheless, he stressed the importance of maximizing the ergonomic design of Claimant’s workstation in order to prevent further work-related exacerbations.
Claimant’s May 2010 Disability
11. Unfortunately, in early April 2010 Claimant moved to yet another workstation, one with a computer mouse that was ill-positioned for her ergonomically. Once again, Claimant’s enthesopathy symptoms flared, specifically, swelling in her right hand and pain radiating up her arms and into her shoulders. As she had in the past, Claimant requested that her supervisor arrange an ergonomic assessment. This time, for reasons that are not clear from the record, the supervisor failed to do so.
12. By early May 2010 Claimant’s symptoms had worsened to the point where they interfered with her ability to do her job. When she learned that the ergonomic assessment she had been anticipating had not even been requested, she decided she could no longer remain at work. Thereafter, Claimant sought and was granted FMLA leave, effective May 10, 2010.
4
13. Dr. Kiely supported Claimant’s request for FMLA leave, in the hopes that a combination of time away from her job duties and physical therapy would help her symptoms abate. This did not occur, however. Instead, in his August 9, 2010 evaluation Dr. Kiely noted that Claimant was complaining of more generalized pain and was increasingly sensitive to palpation, not just in her arms but throughout her body. A more focused clinical examination revealed that she was suffering from fibromyalgia.
14. Fibromyalgia is a syndrome characterized by chronic pain and hypersensitivity throughout the body. Its cause is not well understood. Patients with fibromyalgia tend to perceive tissues as being more painful than what otherwise would be expected based solely on the trauma to which they have been exposed.
15. Fibromyalgia and enthesopathy are not mutually exclusive diagnoses. Because people who suffer from fibromyalgia have a heightened perception of soft tissue pain, it may take longer for them to recover from an inflammatory condition such as tendinitis or enthesopathy than it would for a person who does not suffer from the more generalized pain syndrome.
Expert Opinions as to Causation
16. Both Dr. Kiely and Dr. Backus agree that from December 2009 until mid-March 2010 Claimant’s right wrist and hand symptoms likely were caused primarily by work-related enthesopathy. Where the experts diverge is as to the cause of her condition thereafter.
17. According to Dr. Kiely, Claimant’s complaints in May 2010 most likely were attributable to her work activities. At least one of the symptoms she reported at that point – swelling in her right hand – was consistent with enthesopathy, but would not have been indicative of fibromyalgia. By the time of Dr. Kiely’s August 9, 2010 evaluation, however, Claimant’s soft tissue pain still had failed to abate despite extended time away from work. In addition, she was exhibiting signs of more generalized pain and sensitivity. From these facts Dr. Kiely concluded that Claimant’s symptoms likely now were being driven by fibromyalgia, not by work-related enthesopathy. Any further improvement would come from treating the former condition, not the latter. With that in mind, Dr. Kiely determined that Claimant had reached an end medical result for her work-related injury.
18. Dr. Backus disagreed with this analysis. As noted above, he first evaluated Claimant in mid-March 2010. At that time, he concluded that as a result of working at an ergonomically inappropriate workstation Claimant’s enthesopathy had been temporarily exacerbated. It was on the basis of this opinion that Defendant accepted Claimant’s December 2009 injury as compensable.
5
19. Dr. Backus re-evaluated Claimant in December 2010. At that point, he differentiated between the symptoms she had reported in December 2009, which he recalled as being focused primarily in her right wrist and hand, and those that she reported in April 2010 and thereafter, which seemed to emanate from her shoulder. Although he continued to attribute the earlier symptoms to work-related enthesopathy, the latter symptoms he now attributed solely to fibromyalgia, a condition that was neither caused nor aggravated by work.
20. Contrary to Dr. Backus’ assertion, I find that the medical records do document varying complaints of hand, wrist, arm, shoulder and/or shoulder girdle pain, both at the time of Claimant’s December 2009 injury, which Dr. Backus ascribed to work-related enthesopathy, and at the time of her May 2010 injury, which he ascribed to non-work-related fibromyalgia.
21. Dr. Backus did not discuss, in either his December 2010 independent medical evaluation report or in his formal hearing testimony, the causal relationship, if any, between Claimant’s move to another ergonomically inappropriate workstation in April 2010 and her worsened symptoms thereafter. As he had in the context of his March 2010 evaluation, he acknowledged in his testimony that were Claimant required to work in a setting that was not ergonomically correct for her, this could cause her enthesopathy to flare. With that in mind, Dr. Backus’ failure to address Claimant’s move to yet another incorrect workstation between the time of his first evaluation in March and his second one in December is confusing.
Claimant’s Non-Work-Related Activities
22. In addition to asserting that Claimant’s disability after May 10, 2010 was due to her fibromyalgia rather than her work, Defendant also points to various non-work-related activities as likely intervening events. This assertion comes from a single physical therapy notation, dated April 5, 2010: “Very sore today. Putting roof on house and busy weekend with Easter.”
23. At the formal hearing, Claimant clarified that it was her husband and son who did the roofing work referenced in the physical therapist’s note. Claimant’s participation was limited to occasionally picking up small scraps of wood or discarded nails and serving refreshments. Claimant’s son fully corroborated this testimony, and I find it credible in all respects.
24. Claimant also acknowledged that scrubbing the Easter dinner pots and pans caused her pain to spike for about a week thereafter. I find this testimony credible as well.
25. Neither Dr. Backus nor Dr. Kiely established any credible connection, to the required degree of medical certainty, between Claimant’s non-work-related activities in early April 2010 and her disability after May 10, 2010.
6
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
3. With specific reference to the first and third factors, I conclude here that Dr. Kiely’s opinion is the most credible. As the treating physician, he had occasion to see and examine Claimant on a much more regular basis than Dr. Backus did. Notably, Dr. Kiely evaluated Claimant in early May 2010, when her right shoulder, arm, wrist and hand symptoms were flaring again, and then monthly through early August 2010, when he determined that her pain syndrome had become more generalized and that her ongoing symptoms were now due to fibromyalgia, not enthesopathy.
4. In contrast, Dr. Backus only examined Claimant twice – once in March 2010, before her move to another ergonomically incorrect workstation, and then not again until December 2010, many months after she had stopped working. Dr. Backus had no opportunity to evaluate Claimant’s condition during the crucial period at issue here, therefore, whereas Dr. Kiely did.
5. Beyond that, I am hard pressed to understand the basis for Dr. Backus’ opinion that work at an ergonomically inappropriate workstation likely caused Claimant’s enthesopathy to flare in December 2009, but not in May 2010. Given that Dr. Backus himself had acknowledged the risk that Claimant’s symptoms might recur were she required to work in a less than optimal ergonomic setting, his conclusion in this regard is perplexing.
6. Dr. Kiely’s opinion is more easily understood. It reasonably differentiates between the point at which Claimant’s symptoms were attributable primarily to her enthesopathy and the point at which her fibromyalgia began to predominate. In this respect, Dr. Kiely’s opinion is clearer, more thorough and better supported by the facts than Dr. Backus’ is.
7
7. On the basis of Dr. Kiely’s opinion, I conclude that as a consequence of her work-related enthesopathy Claimant was disabled from working for the period from May 10, 2010 through August 9, 2010. Claimant is entitled to temporary total disability benefits covering that period. Having reached an end medical result for her work injury on the latter date, her disability thereafter was no longer work-related, and her entitlement to temporary disability benefits therefore terminated.
8. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $645.71 and attorney fees totaling $12,613.50. An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded.
9. As for attorney fees, these lie within the Commissioner’s discretion. Defendant argues that no fees should be awarded for any work performed prior to July 29, 2010, the date when Claimant’s attorney formally entered his appearance on her behalf before the Department. Defendant does not cite to any legal authority in support of its position. Having reviewed the specific billing entries, I find that they are sufficiently related to the claim at issue here to be recoverable. I therefore award Claimant her attorney fees as presented, with no reduction for work performed prior to July 29, 2010.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total disability benefits for the period from May 10, 2010 through August 9, 2010 in accordance with 21 V.S.A. §642;
2. Interest on the above amounts calculated in accordance with 21 V.S.A. §664; and
3. Costs totaling $645.71 and attorney fees totaling $12,613.50 in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 12th day of October 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.

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
2
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.
3
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.
4
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.
5
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.

S. C. v. Springfield Hospital (October 8, 2008)

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

S. C. v. Springfield Hospital (October 8, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
S. C. Opinion No. 40-08WC
By: Jane Gomez Dimotsis, Esq.
v. Hearing Officer
For: Patricia Moulton Powden
Springfield Hospital Commissioner
State File No. Y-52398
OPINION AND ORDER
Hearing held in Montpelier on October 10, 2007
Record closed May 23, 2008
APPEARANCES:
Craig Jarvis, Esq., for Claimant
James O’Sullivan, Esq., for Defendant
ISSUES PRESENTED:
1. Was Claimant’s low back injury causally related to her employment, and if so, to what benefits is she entitled?
2. Is Claimant precluded from receiving temporary total disability benefits for any period of time subsequent to her acceptance of retirement pension benefits from Defendant?
EXHIBITS:
Claimant’s Exhibit 1: Medical records
Claimant’s Exhibit 2: Wage records
Defendant’s Exhibit 1: 8/25/06 e-mail from Claimant
Defendant’s Exhibit 2: Medical records
CLAIM:
Temporary disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Interest, attorney’s fees and costs pursuant to 21 V.S.A. §§664 and 678
2
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was an employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. At the time of her injury Claimant had worked for Defendant as an operating room nurse for 30 years. Her duties in the OR varied depending on whether she was assigned to be the scrub nurse or the circulating nurse for any particular surgery. The scrub nurse assisted the surgeon directly, by transferring the patient to and from the operating table, moving surgical equipment around and handing instruments to the surgeon. The circulating nurse was responsible for entering information into the operating room computer once the surgery began.
3. On the morning of Monday, August 14, 2006 Claimant fell in the parking lot on her way into work. Her right foot slipped out from under her and she landed on her buttocks with her left arm outstretched. Claimant stayed on the ground for a few moments and then got up and proceeded inside. Her left leg and ankle were visibly scraped, as was her left elbow.
4. Claimant’s co-employee, Ruth Hassard testified that she recalled Claimant coming into the break room and advising that she had just fallen in the parking lot. Ms. Hassard recalled that Claimant stated that she had landed hard and that her hip hurt.
5. Ms. Hassard, who was also an operating room nurse, worked with Claimant that Monday, and for the remainder of the week as well. Ms. Hassard recalled that Claimant complained that she was sore and in a lot of pain throughout the week. By mid-week, Ms. Hassard testified, Claimant was complaining of numbness in her left leg. She was having difficulty standing and maneuvering patients on and off the operating table. So that Claimant would not have to stand or lift as much, Ms. Hassard informally alternated job duties with her, rotating in as scrub nurse so that Claimant could sit and perform circulating nurse responsibilities instead for at least part of her shift.
6. Claimant testified that she was stiff and sore from Monday on, but she continued to work throughout the week. Claimant had received a written warning for an allegedly unexcused absence earlier in the year, and she was afraid that if she missed additional time from work she might be fired. At night she used a heating pad and took Motrin and Flexeril, but with little symptom relief.
7. On Friday, August 18th Claimant was called in at 2:30 AM to assist at an emergency cesarean section surgery. She returned home at 7:00 AM and went to bed. She awoke at 2:30 PM and went downstairs to check on some laundry. After doing so, she began to proceed back upstairs. Claimant testified that as she put her left leg on the first step to ascend the stairs, she felt a popping sensation in her low back, “as if something twisted and then let go.” Claimant felt excruciating pain and had to crawl up the stairs. Once there, she telephoned a friend to take her to the Emergency Room.
3
8. The progression of Claimant’s symptoms – from generalized achiness and pain centered primarily in her hip to severe low back pain and radicular symptoms down her left leg – is central to the dispute over work-related causation. It is instructive, therefore, to review in some detail what the evidence reflects in this regard. Claimant testified that she began to experience low back and left leg pain during her shift on Monday, August 14th, and that by Wednesday, August 16th she had developed numbness down her left leg and into her left toes. This testimony is corroborated by that of her co-worker, Ms. Hassard, who stated that Claimant was complaining of numbness in her left leg by “mid-week.”
9. The August 18th Emergency Department Initial Interview record gives a somewhat different history. It states:
Chief Complaint: Excruciating left leg pain; states she fell in parking lot about 4 days ago. Had back pain 2 days later and then today went to climb stairs and “feels like something tore.” Patient in tears, appears to be in very severe pain.
10. The Emergency Department Patient Progress Note, also dated August 18th and recorded by S. Jewett, RN, states:
Mechanism of injury: Fell about 4 days ago. Some back pain since but as climbed stairs today felt sudden “tear” in L low back and developed severe pain down outside of L leg into L foot.
11. Last, the ER note, again dated August 18th and recorded by William Hoser, PA-C, states:
Chief Complaint: Excruciating back pain and left leg pain
Subjective: The patient . . . reports that she had fallen in the parking lot here about 4 days ago and injured her left ankle. She reports that she had some back pain two days subsequent to that but that it went away until this afternoon, when she had turned to go up a step and, “she felt something tear.” She reports that she immediately had excruciating left lower back pain and pain down her left leg, which feel[s] similar to sciatica pain.
12. Both Claimant’s testimony and that of Ms. Hassard, therefore, are somewhat at odds with the medical records taken upon Claimant’s presentation to the Emergency Department on August 18th. Those records do not document any history of radicular pain or symptoms following the August 14th fall in the parking lot until Claimant went to ascend her stairs at home on August 18th. In contrast, as noted above, at the formal hearing both Claimant and Ms. Hassard testified that Claimant began experiencing radicular pain and numbness down her left leg on Wednesday, August 16th.
4
13. After being referred to her primary care physician, Claimant underwent an MRI of her lumbar spine on August 28, 2006 which revealed a large extruded left L4-5 disc herniation with resultant nerve compression. On September 20, 2006 she underwent an L4-5 discectomy performed by Dr. Rudolf, an orthopedic surgeon. Claimant did well initially post-surgery, but in November 2006 her leg pain recurred. On November 22, 2006 she underwent additional surgery, this time for a repeat L4-5 disc excision and multi-level fusion.
14. At Defendant’s request, on February 21, 2007 Claimant underwent an independent medical evaluation with Dr. Ensalada, a specialist in both pain medicine and occupational medicine. In Dr. Ensalada’s opinion, Claimant suffered two separate, distinct and essentially unrelated injuries in August 2006. The first one occurred at work on August 14th and was not associated with any leg pain or radicular symptoms. The second one occurred at home on August 18th and caused severe low back and left leg pain and other radicular symptoms. According to Dr. Ensalada, the absence of any radicular symptoms following the first incident means that Claimant must not have herniated her disc at that time, but rather probably suffered nothing more than a minor soft tissue injury. In contrast, the fact that following the second incident Claimant felt a “pop” and then the immediate onset of severe low back and radiating leg pain means that she probably herniated her disc at that moment. In Dr. Ensalada’s opinion, although the two incidents may have been related temporally, in the sense that one followed fairly closely on the heels of the other, there is no basis logically to conclude that they were causally related medically.
15. As to end medical result, Dr. Ensalada testified that Claimant was still treating as of the date he examined her in February 2007, but surmised that she would have reached end medical result within six months after her second surgery, that is, by May 22, 2007.
16. At Claimant’s own behest, on July 30, 2007 she underwent an independent medical examination with Dr. Gennaro, a board-certified orthopedic surgeon. Dr. Gennaro’s opinion as to causation contrasts sharply with Dr. Ensalada’s. He concluded that Claimant’s herniated disc most likely was caused by her fall at work on August 14, 2006. In reaching this conclusion, the factor Dr. Gennaro found most significant was that the mechanism of Claimant’s August 14th injury – falling to the ground and landing on her buttocks – was one that likely would have resulted in an axial load on her spine sufficient to cause her disc to herniate. That it might have taken a few days after that for a disc fragment to extrude and impinge on her nerve root, thereby causing severe pain and radicular symptoms, is not uncommon. According to Dr. Gennaro, the axial load on Claimant’s spine that might have been caused by climbing a step on August 18th was of a far lesser magnitude, and therefore unlikely to have had any impact on the development of her symptoms on that day.
5
17. As to end medical result, Dr. Gennaro opined that Claimant had reached end medical result at least by the time he examined her on July 30, 2007 but would not speculate as to any earlier date. Dr. Gennaro rated Claimant with a 23% whole person impairment referable to her spine.1
18. Claimant has not worked since August 18, 2006. The medical records document that she was temporarily totally disabled from that date at least until some time after her November 2006 surgery. No functional capacity evaluation or other testing was done to evaluate her work capacity thereafter, and no doctor has yet released her to return to work.
19. Claimant accepted retirement pension benefits from Defendant beginning in October 2006, and social security disability benefits beginning in February 2007.
20. Claimant’s average weekly wage at the time of her injury was $1,147.91, resulting in an initial compensation rate of $765.27. This would have been updated to $795.88 as of July 1, 2007.
21. Pursuant to the Department’s interim order, Defendant paid temporary total disability benefits from August 18, 2006 until March 16, 2007.
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 dispute between the parties here involves a question of medical causation. Claimant contends that she suffered a herniated disc when she slipped and fell in the parking lot at work on August 14, 2006. Defendant argues that the work-related slip-and-fall resulted in nothing more than a minor soft tissue injury, and that the symptoms she suffered at home on August 18th, though admittedly indicative of a disc herniation, were not causally related to the earlier episode at all.
1 Dr. Ensalada concurred generally with Dr. Gennaro’s impairment rating, though he disputed that it was causally related to the August 14, 2006 work injury as opposed to the August 18th injury.
6
3. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003). With these factors in mind, the key question is which expert medical opinion is the most credible? Bonenfant v. Price Chopper, Opinion No. 13-07WC (May 8, 2007).
4. I find that Dr. Gennaro’s opinion as to medical causation is more persuasive than Dr. Ensalada’s. Dr. Gennaro’s hypothesis as to the significant axial load on Claimant’s spine that probably resulted from her fall at work on August 14, 2006 provides a sufficient link between that incident and the subsequent evidence of disc herniation to justify a finding of compensability. The only possible intervening event – climbing a single step at home on August 18, 2006 – qualifies as the type of normal, routine activity that does not operate to sever the link between a work-related accident and the natural consequences flowing from it. Correll v. Burlington Office Equipment, Opinion No. 64-94WC (May 1, 1995).
5. Turning to the question whether Claimant’s receipt of retirement pension benefits disqualifies her from receiving temporary total disability benefits as well, I conclude that there is no legal basis for such automatic disqualification. While the result may be a double recovery of sorts for an employee who chooses to retire during a period of temporary total disability, as Claimant did here, the solution lies within the ambit of pension plan provisions, not workers’ compensation. Defendant lawfully could have opted to integrate its employees’ right to retirement funds with their right to workers’ compensation benefits by prohibiting them from receiving the former at the same time as the latter. Alessi v. Raybestos-Manhattan, 451 U.S. 504 (1981). For whatever reason, it opted against such an integration provision.
6. Furthermore, although Claimant’s decision to retire constitutes some evidence that she did not intend to return to work, be it for Defendant or for anyone else, absent companion evidence showing that she had been released to return to work and had failed unreasonably to do so (as that concept is defined in Workers’ Compensation Rule 18.1300), there is insufficient basis for discontinuing her temporary disability benefits on those grounds.
7. I conclude that Claimant was entitled to receive temporary total disability benefits until she reached an end medical result. I find Dr. Gennaro’s opinion in this regard to be more persuasive than Dr. Ensalada’s, as it was based on his own examination at the time rather than merely an estimate of future recovery. Thus, I find that Claimant reached an end medical result on July 30, 2007.
7
8. I also accept Dr. Gennaro’s opinion as to the extent of Claimant’s permanent impairment, and conclude that she is entitled to permanent partial disability benefits in accordance with a 23% whole person impairment referable to the spine.
9. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $2,046.30 and attorney’s fees based on a contingent fee of 20% of the recovery, not to exceed $9,000.00, in accordance with Workers’ Compensation Rule 10.1220. An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded. As for attorney’s fees, these lie within the Commissioner’s discretion. I find they are appropriate here, and therefore these are awarded as well.
ORDER:
Based on the foregoing, Defendant is hereby ORDERED to pay:
1. Temporary disability benefits from the date these were discontinued, March 16, 2007, until the date Claimant reached an end medical result, July 30, 2007;
2. Medical benefits covering all reasonably necessary medical services and supplies causally related to the compensable injury;
3. Permanent partial disability benefits in accordance with a 23% whole person impairment referable to the spine;2
4. Interest on the above amounts in accordance with 21 V.S.A. §664; and
5. Costs in the amount of $2,046.30 and attorney’s fees totaling $9,000.00.
DATED at Montpelier, Vermont this 8th day of October 2008.
________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.
2 These benefits constitute compensation for a permanent impairment that will affect Claimant for the rest of her life. Therefore, although paid in a lump sum the award shall be prorated over Claimant’s life expectancy. Claimant’s remaining life expectancy as of the date of end medical result (July 30, 2007) was 21.27 years, or 255.24 months. Claimant has produced a fee agreement documenting that her attorney is entitled to a contingent fee totaling one third of the awarded permanency and attorney’s fees. Thus, after payment of attorney’s fees Claimant shall be entitled to an award of $73,119.21. This award shall be considered to be $286.47 per month for the remainder of Claimant’s life.

© Copyright - -