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M. D. v. DEW Construction (August 20, 2007)

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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
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Defendant’s Exhibit 5: 4/20/07 Letter to Claimant from John May, VR Counselor
FINDINGS OF FACT:
1. From April 2005 to September 12, 2006, Claimant was an employee of Defendant within the meaning of the Vermont Workers’ Compensation Act (the “Act”).
2. From April 2005 to September 12, 2006, Defendant was Claimant’s employer within the meaning of the Act.
3. On May 31, 2006, Claimant suffered a work-related injury while tearing down a concrete block wall. Claimant was using a cart to remove concrete from the site of the wall; he injured his left shoulder when he pulled on the concrete-filled cart while it was still chocked.
4. Defendant filed a Form 1 on June 1, 2006.
5. A physical therapist assessed Claimant with a light duty work capacity on June 1, 2006. Claimant returned to work June 2, 2006.
6. Defendant provided Claimant with light duty work from June 2, 2006 to June 19, 2006, when Dr. Winokur diagnosed Claimant with a left rotator cuff tear. Dr. Winokur scheduled Claimant for an MRI on June 28, 2006. She also referred Claimant to physical therapy and extended his light duty work capacity for 4 more weeks.
7. Claimant continued to perform light duty work until the week of July 10, 2006, when he was out of work for the birth of his son.
8. On July 17, 2006, Dr. Macy performed arthroscopic surgery on Claimant to repair his left rotator cuff tear. On July 24, 2006, Claimant was referred back to physical therapy.
9. Defendant paid Claimant temporary total disability benefits from July 17, 2006 to August 22, 2006. On August 22, 2006, at Claimant’s bidding, Dr. Macy returned Claimant to work on a light duty basis until further follow-up. Claimant returned to work on August 23, 2006.
10. On September 5, 2006, Dr. Macy extended Claimant’s light duty work capacity for 8 more weeks.
11. Defendant provided Claimant with light duty work from August 23, 2006 to September 12, 2006.
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12. On September 12, 2006, Claimant contacted Peter Wells, Defendant’s General Superintendent, regarding the characterization of his out of work time for the week of July 10, 2006. During this conversation, Claimant informed Mr. Wells that Walker Construction had offered him a job. Claimant explained that Walker Construction would pay him $6 more per hour and provide him with a company truck. When Claimant asked Mr. Wells if he would make a counter offer to match or raise Walker Construction’s offer, Mr. Wells stated that the Defendant was not in a position to make a counter offer. Claimant then gave Mr. Wells his two weeks notice. Later on that day, Mr. Wells called Claimant to verify what Claimant’s last day would be. Claimant confirmed that since he would be starting with Walker Construction on September 25, 2006, his last day with Defendant would be September 22, 2006. Nevertheless, after the latter phone call Defendant decided to reject Claimant’s two weeks notice and Claimant was let go that afternoon.
13. Defendant voluntarily paid Claimant temporary total disability benefits for the week of September 18, 2006 to September 22, 2006.
14. Claimant began working for Walker Construction September 25, 2006; however, Claimant was laid off for lack of work on approximately October 14, 2006. Although Claimant testified that his work at Walker Construction was within his light duty restrictions, Claimant also testified that he never told Walker Construction about his left shoulder injury and subsequent surgery.
15. On November 7, 2006, Dr. Macy indicated that Claimant could return to medium duty work or get a Functional Capacity Evaluation to better determine his work restrictions. Dr. Macy stated that Claimant was not at medical end result.
16. On November 13, 2006, Claimant sought reinstatement of his temporary total disability benefits.
17. Defendant filed a Form 2 on November 29, 2006. Defendant denied Claimant’s request for temporary total disability benefits because Claimant had voluntarily terminated his employment with Defendant in order to work for Walker Construction. Defendant further argued that Claimant’s layoff from Walker Construction was for reasons unrelated to his original work injury.
18. On December 7, 2006, Specialist Luanne Biron denied reinstatement of temporary total disability benefits for lack of evidence. She requested that Claimant submit documentation showing that he had performed a reasonably diligent job search but that he was unable to secure work because of his work restrictions. Specialist Biron also noted that Claimant was receiving unemployment benefits, and that if he were found entitled to reinstatement of temporary total disability benefits he would need to pay back any unemployment benefits he had received.
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19. On December 7, 2006, Claimant faxed to the Department a number of job inquiries he had emailed to potential employers after being laid off by Walker Construction. Claimant testified that he did not inform the potential employers of his work injury. These job inquiries were not entered into evidence at the formal hearing.
20. Despite Claimant’s job inquiries, Defendant continued to oppose reinstatement of temporary total disability benefits because Claimant had been able to obtain employment with Walker Construction while under more limiting work restrictions (light duty) than he was under at the time he made the post-layoff inquiries (medium duty). Further, Defendant noted that the potential employers’ responses to Claimant’s inquiries pointed not to Claimant’s work injury but to his lack of qualifications as the reason for their refusal.
21. On January 7, 2007, Specialist Biron responded to the parties and indicated that the available evidence was not reasonably sufficient to reinstate temporary total disability benefits.
22. A Functional Capacity Evaluation (“FCE”) was performed February 19, 2007. Occupational Therapist Joe Barry found Claimant to have a medium work capacity, except for work at shoulder level and above. Mr. Barry also recommended that Claimant continue physical therapy.
23. On April 20, 2007, Claimant was found not entitled to Vocational Rehabilitation (“VR”). VR Counselor John May noted that, although Claimant had not returned to work since he was laid off by Walker Construction, he was employed as a supervisor in a physically suitable job after his injury and surgery. In addition, Mr. May noted that Claimant had experience in surveying, drafting, and quality control, all jobs that were consistent with his physical abilities (medium duty). Therefore, Mr. May found that, based on Claimant’s ability to perform suitable employment for which he had previous training and experience, he was not entitled to VR.
24. On April 26, 2007, a physical therapy note indicated that although Claimant’s left shoulder did not feel 100% better, he was able to play baseball. A May 7, 2007 physical therapy note again indicated that Claimant could play baseball, but that he could not yet play golf.
25. On May 7, 2007, Dr. Macy indicated that Claimant could return to work May 16, 2007, with restrictions as outlined in the FCE. On May 9, 2007, Dr. Macy stated that while Claimant was still experiencing pain, he was able to play softball. Further, Dr. Macy placed Claimant at medical end result and recommended an Independent Medical Evaluation (“IME”). Finally, Dr. Macy indicated that Claimant could return to work as soon as the next day so long as the FCE were complied with.
26. A May 15, 2007 physical therapy note stated that Claimant woke up that morning with severe pain in his left shoulder. Claimant denied that any trauma caused the pain; he suspected that he re-injured his shoulder in his sleep.
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27. Claimant saw Dr. Macy on May 16, 2007. Dr. Macy’s note indicated that Claimant re-injured himself lifting something. Although Dr. Macy had stated in his last note that Claimant could return to work, he placed Claimant back out of work until June 1, 2007 due to the re-injury. Dr. Macy also recommended more physical therapy.
28. On May 19, 2007, Dr. Davignon sent Claimant a letter scheduling an IME on permanency pursuant to Dr. Macy’s determination of medical end result. However, Claimant did not attend the IME scheduled for June 5, 2007 due to the re-injury of his shoulder.
29. On May 27, 2007, Claimant ruptured his Achilles tendon while playing softball.
30. Claimant was unemployed from October 2006, when he was laid off by Walker Construction, to May 29, 2007, when he began working for the State of Vermont.
31. Claimant collected 26 weeks of unemployment benefits from the time he was laid off by Walker Construction to the time he was hired by the State of Vermont.
32. Defendant has paid and continues to pay all medicals related to Claimant’s original work injury.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the Claimant has the burden of establishing all facts essential to supporting the claim. Goodwin v. Fairbanks, Morse and Co., 123 Vt. 161 (1963). The Claimant must establish with sufficient credible evidence the character and extent of the injury, as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). The Claimant must create in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of injury, and the inference from the facts proven must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
2. Claimant seeks temporary total disability benefits from the time he was laid off by Walker Construction to the time he was hired by the State of Vermont. He argues that he was unable to get a job at the wage he deserves because of his injury. Claimant also contests Dr. Macy’s opinion that he reached medical end result on May 9, 2007. Further, Claimant disagrees with Dr. Macy’s May 16, 2007 note, which states that Claimant re-injured his left shoulder “lifting something.” Finally, Claimant opposes the VR Counselor’s determination that he is not entitled to VR.
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3. Defendant argues that Claimant is not entitled to further temporary total disability benefits because he voluntarily terminated his employment with Defendant. In the alternative, Defendant argues that Claimant is not entitled to temporary total disability benefits after May 9, 2007, when Claimant reached medical end result, May 16, 2007, when Claimant re-injured his left shoulder, May 27, 2007, when Claimant injured his Achilles tendon, or May 29, 2007, when Claimant returned to work with the State of Vermont. Defendant also avers that Claimant cannot be found entitled to VR because he has not offered an expert opinion in opposition to the VR Counselor’s findings.
Temporary Total Disability Benefits; Voluntary Quit
4. In Andrew v. Johnson Controls, Opinion No. 3-93WC, Conclusions of Law at ¶ 4, the Department adopted the rule that “a claimant who voluntarily quits [his or her] job for reasons having nothing to do with the injury is not entitled to temporary total disability compensation.” However, the Department noted an exception to the general rule where the employee “begins a diligent search for employment” but “the employee’s work-related disability is the cause of the employee’s inability to find or hold new employment.” Id. at ¶ 5. Therefore, the Department has held that a claimant who voluntarily removes him or herself from the work force for reasons unrelated to the work injury has the burden of demonstrating: (i) that he or she suffered a work injury; (ii) that he or she made a reasonably diligent attempt to return to the work force; and (iii) that he or she was unable to return to the work force, or returned at a reduced wage, because of the work injury. See id. at ¶ 6. However, an employee’s voluntary quit does not relieve the defendant from its obligation to pay for all reasonably necessary medical treatment. Id. at ¶¶ 2, 9.
5. In Andrew, the Claimant was denied temporary total disability benefits because after voluntarily leaving her position with her employer, she did not make a reasonably diligent effort to return to the work force. Id. at ¶ 7. The Department found that “[a]pplying for only one position is not sufficient.” Id.
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6. In Pfalzer v. Pollution Solutions of Vermont, Opinion No. 23-01WC, Conclusions of Law at ¶¶ 5 and 6, the Department restated the Andrew rule and exception. As in Andrew, the Claimant in Pfalzer was denied temporary total disability benefits for two of his out of work periods. However, unlike the Andrew Claimant, who failed to satisfy the second prong of the exception, the Pfalzer Claimant was denied temporary total disability benefits because he failed to satisfy the third prong of the exception. That is, the Claimant in Pfalzer could not show that he was unable to find work because of his original work injury. Id. at ¶¶ 8, 11. The Department noted that the “[C]laimant was able to eventually find a better paying job within a year while suffering no recorded (or claimed) change in his… condition.” Id. at ¶ 8. Further:
[D]efendant’s argument against awarding [C]laimant’s temporary total disability benefits after his lay-off… is persuasive. Claimant became unemployed… because of an economic downturn… .Thus his unemployment is the result of an economically related lay-off and has nothing to do with his [condition]. Furthermore, [C]laimant has not established that he was unable to find work after [his lay-off] because of his… condition.
7. It is clear that Claimant voluntarily terminated his employment with Defendant because Walker Construction was going to pay him a higher wage and provide him with a company truck. Thus, under the Andrew rule, Claimant is not entitled to temporary total disability compensation.
8. Nonetheless, Claimant did suffer a work injury on May 31, 2006 while working for Defendant. Therefore, the first prong of the Andrew exception is satisfied. Moreover, although Claimant did not enter his job inquiries into the formal record, the Department has considered them and finds them to be evidence of a reasonably diligent attempt to return to the work force in satisfaction of the second prong of the Andrew exception. In fact, unlike the Andrew Claimant, who only applied for one position, Claimant inquired into and applied for a number of positions. However, Claimant has failed to show that he was unable to return to the work force because of his work injury. Like the Pfalzer Claimant, the Claimant in this case successfully returned to work after voluntarily terminating his employment with Defendant. Indeed, Claimant’s post-injury employment at Walker Construction was more favorable to Claimant than his employment with Defendant. Also, Claimant never reported his prior work injury and surgery to Walker Construction; thus, Claimant’s layoff could not have been related to his left shoulder condition. Finally, Claimant did not tell the potential employers he contacted after being laid off by Walker Construction about his work injury. Therefore, their reasons for not hiring Claimant could not have had anything to do with his shoulder condition. Thus, Claimant has failed to satisfy the third prong of the Andrew exception and is not entitled to temporary total disability benefits after his layoff from Walker Construction. However, Defendant is not relieved of its obligation to pay for all reasonably necessary medical treatment related to Claimant’s left shoulder injury.
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9. The Department also finds that Claimant reached medical end result for his original work injury on May 9, 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.

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

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

M. D. v. DEW Construction (August 28, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
M. D. Opinion No. 24-07WC
By: Jane Dimotsis, Hearing Officer
v. Renee Mobbs, Law Clerk
DEW Construction For: Patricia Moulton Powden
Commissioner
State File No. X-06341
AMENDED OPINION AND ORDER
Corrected Date on last page, paragraph 9, to May 9, 2007.
Hearing held in Montpelier on June 25, 2007.
Record closed on July 13, 2007.
APPEARANCES:
Claimant, pro se
William Blake, Esq., for Defendant
ISSUES:
1. Whether Defendant must pay Claimant temporary total disability benefits from the time Claimant was laid off by a subsequent employer to the time Claimant resumed employment with a third employer.
2. Whether Claimant is entitled to Vocational Rehabilitation.
EXHIBITS:
Claimant’s Exhibits
Claimant’s Exhibit 1: 4/26/07– 5/16/07 Medical records from Dr. Macy and Lee Morse, PT
Claimant’s Exhibit 2: 2/19/07 Functional Capacity Evaluation by Joe Barry, OT
Claimant’s Exhibit 3: 5/18/07 IME Letter and Evaluation Questionnaire from Dr. Davignon
Defendant’s Exhibits
Defendant’s Exhibit 1: 7/06 DEW Newsletter
Defendant’s Exhibit 2: 1/11/07 Email from Claimant to Specialist Biron
Defendant’s Exhibit 3: 9/12/06 Transcription of phone call between Claimant and Peter Wells
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Defendant’s Exhibit 4: 9/12/06 Transcription of phone call between Claimant and Peter Wells
Defendant’s Exhibit 5: 4/20/07 Letter to Claimant from John May, VR Counselor
FINDINGS OF FACT:
1. From April 2005 to September 12, 2006, Claimant was an employee of Defendant within the meaning of the Vermont Workers’ Compensation Act (the “Act”).
2. From April 2005 to September 12, 2006, Defendant was Claimant’s employer within the meaning of the Act.
3. On May 31, 2006, Claimant suffered a work-related injury while tearing down a concrete block wall. Claimant was using a cart to remove concrete from the site of the wall; he injured his left shoulder when he pulled on the concrete-filled cart while it was still chocked.
4. Defendant filed a Form 1 on June 1, 2006.
5. A physical therapist assessed Claimant with a light duty work capacity on June 1, 2006. Claimant returned to work June 2, 2006.
6. Defendant provided Claimant with light duty work from June 2, 2006 to June 19, 2006, when Dr. Winokur diagnosed Claimant with a left rotator cuff tear. Dr. Winokur scheduled Claimant for an MRI on June 28, 2006. She also referred Claimant to physical therapy and extended his light duty work capacity for 4 more weeks.
7. Claimant continued to perform light duty work until the week of July 10, 2006, when he was out of work for the birth of his son.
8. On July 17, 2006, Dr. Macy performed arthroscopic surgery on Claimant to repair his left rotator cuff tear. On July 24, 2006, Claimant was referred back to physical therapy.
9. Defendant paid Claimant temporary total disability benefits from July 17, 2006 to August 22, 2006. On August 22, 2006, at Claimant’s bidding, Dr. Macy returned Claimant to work on a light duty basis until further follow-up. Claimant returned to work on August 23, 2006.
10. On September 5, 2006, Dr. Macy extended Claimant’s light duty work capacity for 8 more weeks.
11. Defendant provided Claimant with light duty work from August 23, 2006 to September 12, 2006.
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12. On September 12, 2006, Claimant contacted Peter Wells, Defendant’s General Superintendent, regarding the characterization of his out of work time for the week of July 10, 2006. During this conversation, Claimant informed Mr. Wells that Walker Construction had offered him a job. Claimant explained that Walker Construction would pay him $6 more per hour and provide him with a company truck. When Claimant asked Mr. Wells if he would make a counter offer to match or raise Walker Construction’s offer, Mr. Wells stated that the Defendant was not in a position to make a counter offer. Claimant then gave Mr. Wells his two weeks notice. Later on that day, Mr. Wells called Claimant to verify what Claimant’s last day would be. Claimant confirmed that since he would be starting with Walker Construction on September 25, 2006, his last day with Defendant would be September 22, 2006. Nevertheless, after the latter phone call Defendant decided to reject Claimant’s two weeks notice and Claimant was let go that afternoon.
13. Defendant voluntarily paid Claimant temporary total disability benefits for the week of September 18, 2006 to September 22, 2006.
14. Claimant began working for Walker Construction September 25, 2006; however, Claimant was laid off for lack of work on approximately October 14, 2006. Although Claimant testified that his work at Walker Construction was within his light duty restrictions, Claimant also testified that he never told Walker Construction about his left shoulder injury and subsequent surgery.
15. On November 7, 2006, Dr. Macy indicated that Claimant could return to medium duty work or get a Functional Capacity Evaluation to better determine his work restrictions. Dr. Macy stated that Claimant was not at medical end result.
16. On November 13, 2006, Claimant sought reinstatement of his temporary total disability benefits.
17. Defendant filed a Form 2 on November 29, 2006. Defendant denied Claimant’s request for temporary total disability benefits because Claimant had voluntarily terminated his employment with Defendant in order to work for Walker Construction. Defendant further argued that Claimant’s layoff from Walker Construction was for reasons unrelated to his original work injury.
18. On December 7, 2006, Specialist Luanne Biron denied reinstatement of temporary total disability benefits for lack of evidence. She requested that Claimant submit documentation showing that he had performed a reasonably diligent job search but that he was unable to secure work because of his work restrictions. Specialist Biron also noted that Claimant was receiving unemployment benefits, and that if he were found entitled to reinstatement of temporary total disability benefits he would need to pay back any unemployment benefits he had received.
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19. On December 7, 2006, Claimant faxed to the Department a number of job inquiries he had emailed to potential employers after being laid off by Walker Construction. Claimant testified that he did not inform the potential employers of his work injury. These job inquiries were not entered into evidence at the formal hearing.
20. Despite Claimant’s job inquiries, Defendant continued to oppose reinstatement of temporary total disability benefits because Claimant had been able to obtain employment with Walker Construction while under more limiting work restrictions (light duty) than he was under at the time he made the post-layoff inquiries (medium duty). Further, Defendant noted that the potential employers’ responses to Claimant’s inquiries pointed not to Claimant’s work injury but to his lack of qualifications as the reason for their refusal.
21. On January 7, 2007, Specialist Biron responded to the parties and indicated that the available evidence was not reasonably sufficient to reinstate temporary total disability benefits.
22. A Functional Capacity Evaluation (“FCE”) was performed February 19, 2007. Occupational Therapist Joe Barry found Claimant to have a medium work capacity, except for work at shoulder level and above. Mr. Barry also recommended that Claimant continue physical therapy.
23. On April 20, 2007, Claimant was found not entitled to Vocational Rehabilitation (“VR”). VR Counselor John May noted that, although Claimant had not returned to work since he was laid off by Walker Construction, he was employed as a supervisor in a physically suitable job after his injury and surgery. In addition, Mr. May noted that Claimant had experience in surveying, drafting, and quality control, all jobs that were consistent with his physical abilities (medium duty). Therefore, Mr. May found that, based on Claimant’s ability to perform suitable employment for which he had previous training and experience, he was not entitled to VR.
24. On April 26, 2007, a physical therapy note indicated that although Claimant’s left shoulder did not feel 100% better, he was able to play baseball. A May 7, 2007 physical therapy note again indicated that Claimant could play baseball, but that he could not yet play golf.
25. On May 7, 2007, Dr. Macy indicated that Claimant could return to work May 16, 2007, with restrictions as outlined in the FCE. On May 9, 2007, Dr. Macy stated that while Claimant was still experiencing pain, he was able to play softball. Further, Dr. Macy placed Claimant at medical end result and recommended an Independent Medical Evaluation (“IME”). Finally, Dr. Macy indicated that Claimant could return to work as soon as the next day so long as the FCE were complied with.
26. A May 15, 2007 physical therapy note stated that Claimant woke up that morning with severe pain in his left shoulder. Claimant denied that any trauma caused the pain; he suspected that he re-injured his shoulder in his sleep.
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27. Claimant saw Dr. Macy on May 16, 2007. Dr. Macy’s note indicated that Claimant re-injured himself lifting something. Although Dr. Macy had stated in his last note that Claimant could return to work, he placed Claimant back out of work until June 1, 2007 due to the re-injury. Dr. Macy also recommended more physical therapy.
28. On May 19, 2007, Dr. Davignon sent Claimant a letter scheduling an IME on permanency pursuant to Dr. Macy’s determination of medical end result. However, Claimant did not attend the IME scheduled for June 5, 2007 due to the re-injury of his shoulder.
29. On May 27, 2007, Claimant ruptured his Achilles tendon while playing softball.
30. Claimant was unemployed from October 2006, when he was laid off by Walker Construction, to May 29, 2007, when he began working for the State of Vermont.
31. Claimant collected 26 weeks of unemployment benefits from the time he was laid off by Walker Construction to the time he was hired by the State of Vermont.
32. Defendant has paid and continues to pay all medicals related to Claimant’s original work injury.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the Claimant has the burden of establishing all facts essential to supporting the claim. Goodwin v. Fairbanks, Morse and Co., 123 Vt. 161 (1963). The Claimant must establish with sufficient credible evidence the character and extent of the injury, as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). The Claimant must create in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of injury, and the inference from the facts proven must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
2. Claimant seeks temporary total disability benefits from the time he was laid off by Walker Construction to the time he was hired by the State of Vermont. He argues that he was unable to get a job at the wage he deserves because of his injury. Claimant also contests Dr. Macy’s opinion that he reached medical end result on May 9, 2007. Further, Claimant disagrees with Dr. Macy’s May 16, 2007 note, which states that Claimant re-injured his left shoulder “lifting something.” Finally, Claimant opposes the VR Counselor’s determination that he is not entitled to VR.
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3. Defendant argues that Claimant is not entitled to further temporary total disability benefits because he voluntarily terminated his employment with Defendant. In the alternative, Defendant argues that Claimant is not entitled to temporary total disability benefits after May 9, 2007, when Claimant reached medical end result, May 16, 2007, when Claimant re-injured his left shoulder, May 27, 2007, when Claimant injured his Achilles tendon, or May 29, 2007, when Claimant returned to work with the State of Vermont. Defendant also avers that Claimant cannot be found entitled to VR because he has not offered an expert opinion in opposition to the VR Counselor’s findings.
Temporary Total Disability Benefits; Voluntary Quit
4. In Andrew v. Johnson Controls, Opinion No. 3-93WC, Conclusions of Law at ¶ 4, the Department adopted the rule that “a claimant who voluntarily quits [his or her] job for reasons having nothing to do with the injury is not entitled to temporary total disability compensation.” However, the Department noted an exception to the general rule where the employee “begins a diligent search for employment” but “the employee’s work-related disability is the cause of the employee’s inability to find or hold new employment.” Id. at ¶ 5. Therefore, the Department has held that a claimant who voluntarily removes him or herself from the work force for reasons unrelated to the work injury has the burden of demonstrating: (i) that he or she suffered a work injury; (ii) that he or she made a reasonably diligent attempt to return to the work force; and (iii) that he or she was unable to return to the work force, or returned at a reduced wage, because of the work injury. See id. at ¶ 6. However, an employee’s voluntary quit does not relieve the defendant from its obligation to pay for all reasonably necessary medical treatment. Id. at ¶¶ 2, 9.
5. In Andrew, the Claimant was denied temporary total disability benefits because after voluntarily leaving her position with her employer, she did not make a reasonably diligent effort to return to the work force. Id. at ¶ 7. The Department found that “[a]pplying for only one position is not sufficient.” Id.
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6. In Pfalzer v. Pollution Solutions of Vermont, Opinion No. 23-01WC, Conclusions of Law at ¶¶ 5 and 6, the Department restated the Andrew rule and exception. As in Andrew, the Claimant in Pfalzer was denied temporary total disability benefits for two of his out of work periods. However, unlike the Andrew Claimant, who failed to satisfy the second prong of the exception, the Pfalzer Claimant was denied temporary total disability benefits because he failed to satisfy the third prong of the exception. That is, the Claimant in Pfalzer could not show that he was unable to find work because of his original work injury. Id. at ¶¶ 8, 11. The Department noted that the “[C]laimant was able to eventually find a better paying job within a year while suffering no recorded (or claimed) change in his… condition.” Id. at ¶ 8. Further:
[D]efendant’s argument against awarding [C]laimant’s temporary total disability benefits after his lay-off… is persuasive. Claimant became unemployed… because of an economic downturn… .Thus his unemployment is the result of an economically related lay-off and has nothing to do with his [condition]. Furthermore, [C]laimant has not established that he was unable to find work after [his lay-off] because of his… condition.
7. It is clear that Claimant voluntarily terminated his employment with Defendant because Walker Construction was going to pay him a higher wage and provide him with a company truck. Thus, under the Andrew rule, Claimant is not entitled to temporary total disability compensation.
8. Nonetheless, Claimant did suffer a work injury on May 31, 2006 while working for Defendant. Therefore, the first prong of the Andrew exception is satisfied. Moreover, although Claimant did not enter his job inquiries into the formal record, the Department has considered them and finds them to be evidence of a reasonably diligent attempt to return to the work force in satisfaction of the second prong of the Andrew exception. In fact, unlike the Andrew Claimant, who only applied for one position, Claimant inquired into and applied for a number of positions. However, Claimant has failed to show that he was unable to return to the work force because of his work injury. Like the Pfalzer Claimant, the Claimant in this case successfully returned to work after voluntarily terminating his employment with Defendant. Indeed, Claimant’s post-injury employment at Walker Construction was more favorable to Claimant than his employment with Defendant. Also, Claimant never reported his prior work injury and surgery to Walker Construction; thus, Claimant’s layoff could not have been related to his left shoulder condition. Finally, Claimant did not tell the potential employers he contacted after being laid off by Walker Construction about his work injury. Therefore, their reasons for not hiring Claimant could not have had anything to do with his shoulder condition. Thus, Claimant has failed to satisfy the third prong of the Andrew exception and is not entitled to temporary total disability benefits after his layoff from Walker Construction. However, Defendant is not relieved of its obligation to pay for all reasonably necessary medical treatment related to Claimant’s left shoulder injury.
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9. The Department also finds that Claimant reached medical end result for his original work injury on May 9, 2007. Indeed, although Claimant disputes Dr. Macy’s determination, the Claimant has failed to introduce a medical opinion counter to Dr. Macy’s.
Vocational Rehabilitation
10. The Department finds that Claimant is not entitled to Vocational Rehabilitation because the Claimant was employed as a supervisor in a physically suitable job after his injury and surgery and is able to perform suitable employment for which he has previous training and experience. Indeed, although the Claimant disputes VR Counselor John May’s April 20, 2007 determination that he is not entitled to VR, the Claimant has failed to introduce a VR opinion counter to Mr. May’s.
ORDER:
Based on the foregoing finds and conclusions:
1. Claimant’s claim for temporary total disability benefits from the time he was laid off by Walker Construction to the time he resumed employment with the State of Vermont is DENIED. However, Defendant shall continue to pay for all reasonably necessary medical treatment related to Claimant’s work-related left shoulder injury.
2. Claimant’s claim for Vocational Rehabilitation is DENIED.
DATED at Montpelier, Vermont this 28th day of August 2007.
__________________________
Patricia Moulton Powden
Commissioner
Appeal: Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

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

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

Lorianne Lewia v. Stowe Motel (July 25, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Lorieann Lewia Opinion No. 19-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Stowe Motel
For: Anne M. Noonan
Commissioner
State File No. BB-55471
OPINION AND ORDER
Hearing held in Montpelier, Vermont on March 17, 2011
Record closed on April 5, 2011
APPEARANCES:
Vincent Illuzzi, Esq., for Claimant
Jason Ferreira, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant entitled to temporary total disability benefits for the period from June 18, 2010 through August 6, 2010?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Various work capabilities forms
Claimant’s Exhibit 2: Letter from Scott Ward, April 2, 2010
Claimant’s Exhibit 3: Curriculum vitae, W. Thomas Turek, D.C.
Defendant’s Exhibit 1: Curriculum vitae, Verne Backus, M.D.
Defendant’s Exhibit 2: Letter from Scott Ward, May 27, 2010
Defendant’s Exhibit 3: Letter from Attorney Illuzzi, June 2, 2010
Defendant’s Exhibit 4: Letter from Scott Ward, June 8, 2010
Defendant’s Exhibit 5: Form 27, approved June 18, 2010
Defendant’s Exhibit 6: Letter from Anne Coutermarsh, August 30, 2010
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
3. Claimant worked for Defendant as a housekeeper. On November 5, 2009 she was moving lawn furniture as part of the fall cleanup process. As she bent down to pick up a heavy hammock, she felt a pop in her left shoulder, and then a stabbing, burning pain. Claimant stopped working and immediately sought medical treatment.
4. Defendant accepted Claimant’s injury as compensable and began paying workers’ compensation benefits accordingly.
Claimant’s Prior Medical History
5. Claimant’s prior medical history includes a left upper extremity injury sustained in 1998 while working for a different employer. Claimant underwent two elbow surgeries, but continued to complain of disabling pain for years thereafter. The medical records reflect that during this period Claimant demonstrated anger towards her surgeon and poor insight into her condition. She held her arm in a significantly guarded position and was unwilling to participate in treatment options that were likely to increase her pain temporarily, such as functional restoration.
6. Claimant did not return to work after her 1998 injury until September 2004. At that point her primary care physician cleared her to work with a restriction against lifting in excess of 20 pounds with her left arm. Claimant worked for a time as a licensed nursing assistant. Later she went to work for Defendant.
7. Although originally left-handed, Claimant testified that the restriction against lifting with her left arm was not problematic. She taught herself to do more things with her right hand and now considers herself to be right-handed. Claimant described her right arm as being “pretty strong and rugged” now. I find this testimony to be credible.
Claimant’s Medical Course Since November 2009
8. After her November 2009 injury Claimant treated conservatively, first with Dr. James, and later with both Maria Calderwood, a family nurse practitioner, and Dr. Carr, an orthopedic surgeon. Her response to treatment has been poor, and in many respects it mirrors her experience following her 1998 injury. Claimant complains of exquisite pain throughout her shoulder joint, in any motion, in any position and at all times. She holds her left arm in an immobile position, with her left shoulder elevated, her neck flexed and her arm folded close across her body. She manages her pain with narcotic medicines.
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9. Both Dr. Carr and Dr. Shafritz, another orthopedic surgeon with whom Claimant consulted, have determined that there is no surgical remedy for her injury. The etiology of her current symptoms is unclear. As with her 1998 injury, there likely is a myofascial pain component, which is complicated by Claimant’s high pain perception and tendency for pain magnification. Diagnostic testing has ruled out adhesive capsulitis.
Claimant’s Work Capacity
10. Claimant has not returned to work since her November 2009 injury. In a January 25, 2010 “To Whom It May Concern” letter, Dr. Carr stated that she would be unable to work as a housekeeper indefinitely. Dr. Carr has reiterated this opinion on three occasions since then, most recently in August 2010. He has done so, however, merely by checking the appropriate box for “no work capability” on standardized workers’ compensation medical forms. Without further explanation as to the basis for his opinions, I find these determinations to be of little value.1
11. At Defendant’s request, Claimant underwent two independent medical evaluations with Dr. Backus, the first in March 2010 and the second in January 2011. Dr. Backus is board certified in occupational medicine. He is experienced at treating patients with chronic pain, particularly with respect to return to work issues.
12. Based both on his physical exam findings and his review of Claimant’s medical records, Dr. Backus concluded that Claimant is capable of performing full-time sedentary to light duty work. In reaching this conclusion, Dr. Backus specifically noted that after her 1998 injury Claimant suffered from chronic pain to much the same extent that she does now, but still was able to return to work so long as she limited the use of her left arm. Dr. Backus recommended that Claimant abide by the same restriction now.
13. According to Dr. Backus, aside from the limitation involving her left arm there are no other medical barriers that preclude Claimant from working. She has full use of her right arm and no functional restrictions involving either her back or her lower extremities. She is not restricted from driving and has not complained of any disabling side effects related to her use of pain medications. Indeed, in Dr. Backus’ opinion, for Claimant to return to work likely would be quite beneficial. In his experience, chronic pain patients usually get better once they do so. I find this testimony to be credible.
14. Dr. Backus acknowledged that Claimant has never undergone a functional capacity evaluation. He testified that although such testing is helpful, it is not always necessary. In this case, Dr. Backus felt confident in his ability to gauge Claimant’s work capacity without it. I find this testimony to be credible.
15. At her attorney’s referral, Claimant underwent an evaluation with Dr. Turek, a chiropractor, in February 2011. Dr. Turek is a diplomate in chiropractic orthopedics, a designation akin to board certification for medical doctors. His practice primarily involves treating orthopedic problems and musculoskeletal disorders.
1 Dr. Fanciullo, a pain management specialist to whom Claimant was referred for a consultation in May 2010, completed a similar form and checked the same box after his evaluation. This determination also came with no explanation, and therefore I find its value as limited as Dr. Carr’s.
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16. Based on his review of Claimant’s medical records, Dr. Turek concluded that Claimant had been totally disabled from working during the summer of 2010. Given how restricted the range of motion in Claimant’s left arm was during that period, in Dr. Turek’s opinion Claimant would have risked developing an overuse problem in her right arm had she attempted to return to work.
17. Dr. Turek acknowledged that his opinion as to Claimant’s work capacity during the summer of 2010 was based solely on his review of her medical records, as he did not have occasion to examine her until some eight months later. Dr. Turek also admitted that Claimant has not complained of any right arm symptoms, despite the fact that she uses her left arm only sparingly. Last, Dr. Turek was unaware of the fact that following her 1998 injury Claimant had been released to return to work with only limited use of her left arm and had managed successfully to do so. I find that Dr. Turek’s opinion is weakened as a result of these factors.
Defendant’s Termination of Temporary Disability Benefits
18. With Dr. Backus’ work capacity opinion as support, on May 27, 2010 Defendant notified Claimant’s attorney that Claimant had been released to return to work. Defendant demanded that Claimant begin searching for suitable work immediately and submit at least five job contacts weekly beginning June 4, 2010. Should she fail to do so, Defendant advised, it would seek to discontinue her temporary total disability benefits.
19. Claimant’s attorney objected to Defendant’s work search requirement. In correspondence to the Department, he argued: (1) that Claimant’s treating physicians had not yet released her to work; (2) that to expect Claimant to make five job contacts per week was unreasonable given both the rural nature of her labor market area and her physical limitations; and (3) that there was insufficient time for Claimant to comply with Defendant’s June 4th deadline for completing the first weekly work search.
20. Between June 2, 2010 (the date when Claimant’s attorney received Defendant’s work search notice) and June 8, 2010 Claimant failed to submit evidence of any job contacts to Defendant. Consequently, on June 8th Defendant submitted its Notice of Intention to Discontinue Payments (Form 27) to the Department, in which it sought to discontinue Claimant’s temporary total disability benefits for failure to conduct a good faith search for suitable work. The Department approved the discontinuance effective June 18, 2010.
21. Claimant did not make any job search efforts between June 18, 2010 and August 6, 2010. She did not receive any temporary total disability benefits during this period. Following an informal conference on July 28, 2010 the parties agreed that she would commence a job search and would submit evidence to Defendant of at least two contacts weekly. Claimant did so beginning on August 7, 2010 and Defendant reinstated her temporary total disability benefits accordingly.
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CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The issue here is whether Defendant properly discontinued Claimant’s temporary total disability benefits from June 18, 2010 through August 6, 2010 on the grounds that she had failed to conduct a good faith search for suitable work once released to do so. See Workers’ Compensation Rule 13.0000. Having initially accepted Claimant’s injury as compensable, the burden is on Defendant to establish that its discontinuance was proper. Merrill v. University of Vermont, 133 Vt. 101, 105 (1974); Luff v. Rent Way, Opinion No. 07-10WC (February 16, 2010).
3. The test for determining entitlement to temporary total disability benefits “is not whether the injured employee is totally incapacitated from performing the same type of labor as he was performing at the time of his injury but whether he is capable of performing any kind of available work.” Sivret v. Knight, 118 Vt. 343, 346 (1954), cited with approval in Hotaling v. St. Johnsbury Trucking Co., 153 Vt. 581, 584 (1990).
4. Conflicting medical evidence was produced as to whether Claimant meets this standard. According to Drs. Carr and Turek, she does. According to Dr. Backus, she does not.
5. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
6. Notwithstanding his status as Claimant’s treating physician, Dr. Carr’s opinion as to work capacity was never stated in sufficient detail for me even to consider it. Checking a box on a form may be a useful way for an adjuster to quickly monitor an injured worker’s status as his or her recovery progresses, but this method of stating an opinion has little value otherwise.
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7. Neither Dr. Turek nor Dr. Backus was a treating physician, and both were qualified to express opinions as to Claimant’s work capacity during the summer of 2010. Both examined pertinent records. Both conducted comprehensive evaluations, though the fact that Dr. Backus’ exam occurred shortly before the period in question while Dr. Turek’s did not occur until some eight months later makes the former more persuasive.
8. Aside from stating his fear that Claimant might develop an overuse injury in her right arm if she returned to work, Dr. Turek provided no basis for his conclusion that she was precluded from performing any work at all. He was unaware that Claimant had returned to work successfully after her 1998 injury, in part by teaching herself to perform most tasks right-handed. In these respects, his opinion lacked objective support and was not sufficiently thorough for me to accept it.
9. Dr. Backus’ opinion was better supported by the available evidence. The fact is, Claimant has full use of her other extremities and does not suffer from any other limiting impairments, either physical or psychological. She was able to return to work following her 1998 injury despite having only limited use of her left arm. There is no reason to believe that she cannot do so again now.
10. I conclude that Dr. Backus’ opinion as to Claimant’s work capacity is more persuasive than Dr. Turek’s.
11. Having concluded that Claimant had a work capacity during the summer of 2010, I also conclude that Defendant appropriately notified her of her obligation to search for suitable work, and appropriately terminated her temporary disability benefits when she failed to do so.
12. As Claimant has failed to prevail on her claim for benefits, she is not entitled to an award of costs or attorney fees.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for temporary total disability benefits for the period from June 18, 2010 through August 6, 2010 is hereby DENIED.
DATED at Montpelier, Vermont this 25th day of July 2011.
_______________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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

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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
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim. 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.
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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.
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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.
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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.
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CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Where 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.
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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.

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

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Clifford Hill v. Lamell Lumber Corp. (November 14, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Clifford Hill Opinion No. 27-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Lamell Lumber Corp.
For: Anne M. Noonan
Commissioner
State File No. CC-00915
OPINION AND ORDER
Hearing held in Montpelier on August 29, 2012
Record closed on October 3, 2012
APPEARANCES:
Frank Talbott, Esq., for Claimant
Justin Sluka, Esq., for Defendant
ISSUES PRESENTED:
1. Did Claimant suffer an injury arising out of and in the course of his employment, either on or about December 21, 2009 and/or on December 31, 2009?
2. If yes, to what temporary total and/or permanent partial disability benefits is Claimant entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Medical records
Claimant’s Exhibit 1: Copy of time card for week ending 1/5/10
Claimant’s Exhibit 2: Copies of time cards for weeks ending 1/5/10 and 12/29/09
Claimant’s Exhibit 3: Employment termination notice, February 23, 2010
Claimant’s Exhibit 4: Payroll register, January 1, 2009 to December 31, 2009
Claimant’s Exhibit 5: Memo to employees, December 14, 2009
Claimant’s Exhibit 7: Original time card, week ending 1/5/10
Claimant’s Exhibit 8: Original time card, week ending 12/29/09
Claimant’s Exhibit 9: Original time card, week ending 12/22/09
Defendant’s Exhibit A: December 2009 – January 2010 calendar
Defendant’s Exhibit B: Unemployment compensation determinations, 3-25-10 and 3-26-10
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Defendant’s Exhibit E: Cell phone record
CLAIM:
Temporary total disability benefits from January 4, 2010 to December 10, 2010, pursuant to 21 V.S.A. §642
Permanent partial disability benefits in accordance with a 39 percent whole person impairment referable to the spine, pursuant to 21 V.S.A. §648
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
3. As of December 2009 Claimant had been employed at Defendant’s sawmill as a yard worker for approximately five years. His primary assignment was running the de-barker, the machine that removes the bark from logs before they are sawed for lumber. His other duties included stacking lumber, running the front-end loader and sweeping up various areas of the mill.
Claimant’s Alleged Work-Related Injuries and Subsequent Medical Course
4. Claimant alleges two incidents at work in December 2009, both of which he asserts caused injury, neither of which were reported. The first incident occurred at some point during the week before Christmas.1 Claimant was working in a basement room that houses the apparatus for processing wood chips. Slabs of wood or bark make their way through a chipper to a series of vibrating screens, which sort them according to size. Appropriately sized chips are directed first into a blower, and from there into a steel chute that runs uphill, through the concrete outer wall and into a trailer parked outside.
5. On the day in question, Claimant was shoveling wood chips back into the blower from where they had fallen on the floor. Thinking he was further away from the chute than he was, as he turned to walk around it instead he walked into it. Claimant hit the left side of his head on the chute and fell down. The impact left a red mark on his forehead, but did not cause any bleeding or bruising. He recalled that he had a slight headache thereafter, for which he took some aspirin from the first-aid station. Other than that, he did not seek medical attention.2
1 Claimant did not specify the date on which this incident allegedly occurred – December 21, 2009 – until almost a year later, in the context of the December 2010 independent medical exam that his attorney arranged with Dr. White. See infra at Finding of Fact No. 14. In fact, Defendant’s time cards document that he did not work on that day. Claimant now asserts that the incident occurred at some point during the week prior to Christmas 2009, though he cannot recall exactly when.
2 Claimant testified that as soon as he left the chipper area he told his supervisor, Keith Lamell, that he had hit his head on the chute. Mr. Lamell was not called by either party to testify, and therefore there is no corroborating
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6. The second incident occurred approximately two weeks later, on Thursday, December 31, 2009. Although the sawmill was shut down for the Christmas holiday, Keith Lamell telephoned him that morning and asked him if he would help change a bearing in the de-barker machine. Claimant agreed to do so.
7. Claimant alleges as follows: At some point during the day he made use of a plastic bucket to retrieve some used oil from the maintenance shop, so that he could lubricate the chains on the log deck. After completing the job, he began walking back to the garage, plastic bucket in hand. As he traversed an icy metal cross-over in the lumber yard, he slipped and fell. As he went down, he struck his right ribs and chest on the bucket.3
8. Because the mill was still shut down for the holiday week, Claimant did not work in the days immediately following this alleged incident. Nor did he seek medical treatment. The following Monday, January 4, 2010, he arrived at the mill for his scheduled shift. While working that afternoon, he slipped again on some snow and ice in the yard, bruising his ribs for a second time. Concerned that he had aggravated his injury from the week before, he left work early and presented to the local walk-in clinic for evaluation and treatment.
9. The medical record of Claimant’s January 4, 2010 clinic visit is telling, both for what it contains and for what it omits. It reports the history of Claimant’s presenting injury as having occurred two days previously, when he slipped on the ice and fell, striking his right chest on what is described first as “an ash bucket” and later as “a plastic bucket.” Significantly, the record does not report the fall as having occurred at work. Nor does it reference the earlier incident, in which Claimant allegedly hit his head on the chipper chute, in any way.
10. As for symptoms, the January 4, 2010 record reports “persistent chest pain” as Claimant’s only complaint. Of note, a review of neurological systems was described as negative for both dizziness and weakness. Claimant was diagnosed with a chest wall contusion, for which he was prescribed anti-inflammatories and pain medications.
11. Three days later, on January 7, 2010 Claimant returned to the walk-in clinic, this time complaining that he had caught himself from falling “due to dizziness and legs seizing up on him.” He reported a three-week history of progressively worsening numbness and weakness in his extremities, gait difficulty and loss of balance, with the “current episode” beginning more than one week ago. This history is quite obviously different from the one reported in the context of Claimant’s January 4, 2010 clinic visit. Significantly, even in reporting this revised account Claimant still made no mention of having hit his head on
evidence for this testimony. Having reason to doubt Claimant’s ability to recall the specifics of this and other events, I cannot find as a fact that his recollection in this regard is accurate.
3 Claimant testified that he thought he reported this incident to Keith Lamell as well, though he admitted he was uncertain on this point. No First Report of Injury was filed, and Claimant did not seek workers’ compensation benefits on account of either this or the chipper chute incident until the following November, see Finding of Fact No. 36, infra.
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the chipper chute at work, though this would have occurred approximately three weeks previously. Nor did he recall any other recent head or neck trauma.
12. Claimant’s neurological signs and symptoms were serious enough to warrant immediate hospitalization. An MRI study revealed a large cervical disc herniation at C5-6, with cord compression. With a diagnosis of cervical myelopathy,4 on January 11, 2010 he underwent a C5-6 discectomy and fusion.
13. Claimant was followed post-operatively by his treating neurosurgeon, Dr. Jewell. Initially he reported some improvement in his symptoms, but this was relatively short-lived. By October 2010 he was complaining of “terrible” neck pain, ongoing numbness in his arms and legs and balance issues. A second MRI study demonstrated that his cervical spinal cord was well decompressed, leading Dr. Jewell to conclude that further surgery was not warranted. As a result, Claimant’s treatment since that time has consisted primarily of narcotic pain medications.
Expert Medical Opinions
(a) Dr. White
14. At the request of his attorney, in December 2010 Claimant underwent an independent medical examination with Dr. White, an occupational medicine specialist. In the course of this examination, for the first time Claimant reported having “banged my head” on the chipper chute at work on December 21, 2009 as the inciting event for his subsequent symptoms. Following that incident, he recalled, he had no feeling in his legs or hands, and his balance was impaired.
15. Dr. White concurred with Dr. Jewell’s diagnosis – C5-6 disc herniation with cervical myelopathy. He determined that Claimant had reached an end medical result and rated him with a 39 percent whole person impairment. A critical component of this rating was Dr. White’s conclusion that Dr. Jewell’s fusion surgery was not entirely curative, and that Claimant has continued to exhibit signs indicative of cervical myelopathy.
16. As for whether there was a causal link between Claimant’s condition and the alleged chipper chute incident at work, Dr. White had this to say:
In discussing the onset of his symptoms today, Mr. Hill describes a fall in which he struck his head,5 with immediate onset of symptoms at that time. If that is the correct description of the mechanism and chronology, there would indeed be a causal relationship, an aggravation of his underlying (previously asymptomatic) cervical problem.
4 Cervical myelopathy differs from radiculopathy in that it indicates damage to the spinal cord itself rather than to the peripheral nerve roots.
5 Dr. White later clarified that his description of the chipper chute incident as involving a “fall in which he struck his head” was erroneous, and that in fact Claimant had told him that he simply struck his head. Regardless, his opinion that the occurrence was the inciting event for Claimant’s subsequent symptoms remains unchanged.
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17. Dr. White specifically acknowledged that the mechanism of injury Claimant described was not corroborated in the medical records. As to this, he stated:
Obviously, I was not there at the time and I did not observe Mr. Hill falling and hitting his head. Furthermore, it is really not a medical question as to whether or not this incident occurred. However, as noted above, if indeed this was the injury mechanism, there is a causal relationship.
18. As Dr. White correctly noted, the contemporaneous medical records do not corroborate the mechanism of injury Claimant described. The credible evidence also fails to corroborate Dr. White’s assumptions as to the chronology of Claimant’s symptoms, specifically, that they began immediately after he struck his head on the chipper chute. Notwithstanding what he reported to Dr. White, at the formal hearing Claimant himself testified that aside from a minor headache, he did not experience any deleterious effects from that incident. Nor do the contemporaneous medical records indicate a connection between the onset of his symptoms and either that event or any other recent head or neck trauma. See Findings of Fact Nos. 9-11, supra. Considering this evidence, I cannot accept as credible Dr. White’s assumption that Claimant’s neurological symptoms began with the chipper chute incident.
19. Dr. White also addressed the causal link between the chipper chute incident and Claimant’s alleged slip and fall onto a plastic bucket at work, as follows:
In my opinion, the initial incident with the wood chipper represents the aggravating factor instigating Mr. Hill’s symptoms. Falling onto a bucket with enough force to trigger medical attention for chest pain could certainly involve a “whiplash” mechanism that could further aggravate the situation.
20. Again, the credible evidence provides no support for Dr. White’s theory that Claimant’s fall onto the plastic bucket might have involved a whiplash component. Claimant did not describe the fall in that way, either in his testimony or, more significantly, in reporting the event to his medical providers at the time.
(b) Dr. Boucher
21. At Defendant’s request, in May 2012 Dr. Boucher reviewed Claimant’s medical records. Like Dr. White, Dr. Boucher is a specialist in occupational medicine. Unlike Dr. White, he did not personally examine Claimant. Dr. Boucher rendered opinions both as to the cause of Claimant’s cervical condition and as to permanency.
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22. As to causation, Dr. Boucher acknowledged that although Claimant likely suffered from preexisting degenerative disc disease in his cervical spine, his C5-6 disc herniation was likely the result of an acute event, not merely further degeneration. In this respect, he concurred with Dr. White. However, he strongly disputed Dr. White’s conclusion that the chipper chute incident was the likely culprit. According to Dr. Boucher, for a cervical disc herniation to result from a blow to the head requires a very strong impact, one that would at least cause a visible abrasion and swelling, and more likely concussion and/or loss of consciousness as well. Even though the impact Claimant described caused him to fall and resulted in a red mark on his forehead, it was not serious enough to warrant medical treatment, and he did not mention it when, three weeks later, he first complained to his treating providers of neurological symptoms. Claimant himself treated the incident as relatively minor, and in Dr. Boucher’s opinion, rightly so. I find this reasoning persuasive.
23. As Dr. White had, Dr. Boucher theorized that Claimant’s alleged slip and fall onto a plastic bucket might have included a whiplash component, which could possibly have been a factor in causing his C5-6 disc herniation. As noted previously, the credible evidence does not provide any support for this hypothesis.
24. As for permanency, Dr. Boucher rated Claimant with a 26 percent whole person impairment rating on account of his cervical fusion surgery. Unlike Dr. White, Dr. Boucher did not add any additional impairment for ongoing cervical myelopathy. In his opinion, the numbness in his extremities and loss of balance that Claimant reported, both before and after his alleged work-related injuries, most likely resulted from peripheral neuropathy, not cervical myelopathy. According to Dr. Boucher, Claimant had a long history of alcohol dependence and abuse, and neuropathies of this type are common in such cases.
25. I find reason to doubt Dr. Boucher’s conclusion in this regard. I am skeptical, first of all, of a diagnosis reached solely on the basis of a records review, particularly one that contradicts the treating neurosurgeon’s diagnosis, both pre- and post-operatively. Second, while Claimant’s history of alcoholism is well documented in the record, none of the diagnostic testing completed at the time of his January 2010 hospitalization, including liver function studies, brain scan, CT and MRI, revealed any evidence of alcohol-related disease or associated motor disturbance. Dr. Boucher did not consider these test results to be relevant. However, Dr. White credibly explained why they made it less likely that the physical signs Claimant displayed were a consequence of alcoholism-related peripheral neuropathy, and more likely that they were indicative of cervical myelopathy. I find his reasoning on this point more persuasive than Dr. Boucher’s.
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Defense Witnesses as to Claimant’s Credibility
26. The importance that Dr. White in particular ascribed to the history Claimant reported warrants close examination of the latter’s credibility. Three witnesses testified on Defendant’s behalf on this issue – Ron Lamell, Sr., Ron Lamell, Jr. and Dennis Farley.
(a) Ron Lamell, Sr.
27. Ron Lamell, Sr. is Defendant’s president and owner. His father started the sawmill, and he began working there as a teenager. Over the years he has worked at every aspect of the business’ operation, though currently he spends most of his time in the office.
28. Mr. Lamell presented in all respects as a competent, responsible employer. His 35 employees, many of whom have been with the company for years, enjoy such benefits as health insurance, a generous profit sharing plan and Christmas bonuses. For the past four or five years, Mr. Lamell also has offered a workers’ compensation bonus program. According to this program, so long as no work-related lost-time injuries are reported during the preceding year, in addition to their Christmas bonuses employees also are paid for the holiday shut-down week. In Mr. Lamell’s experience, this program has not deterred employees from reporting work-related injuries as they occur. I find this testimony credible.
29. Mr. Lamell has known both Claimant and his father for many years. In addition to working at the mill, at times in the past Claimant had helped him work on antique cars and cut firewood. Claimant also was Mr. Lamell’s tenant, and was helping him renovate the rental property in which he lived. Mr. Lamell testified credibly that he and Claimant had long enjoyed a cordial, friendly relationship.
30. Mr. Lamell found reason to doubt Claimant’s account of having hit his head on the chipper chute, primarily because he could not believe that Claimant would have been in that area while the mill was running. The chipper machinery is particularly dangerous, and for that reason the room in which it is located is always chained off. The only time employees are instructed to clean up in that area is when the mill is shut down, on Saturday afternoons, for example. According to Mr. Lamell, for Claimant to have been shoveling chips there at the time he alleged, while the machinery was running, was prohibited.
31. At the same time, however, Mr. Lamell acknowledged that he knew Claimant to be an employee who did things his own way, including even wandering off occasionally to do whatever he thought needed to be done. I accept this characterization of Claimant’s work habits as credible.
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32. Mr. Lamell also doubted Claimant’s account of having fallen onto a plastic bucket at work on December 31, 2009. His reasons for doing so can be summarized as follows:
• According to Mr. Lamell, given the ever-present risk of a calamitous fire, open buckets of the type Claimant described were not available at the mill. Instead, only closed buckets with spouts were used to retrieve flammables such as grease or used oil from the maintenance shop;
• Claimant never reported the injury as work-related. To the contrary, when he left work early on January 4, 2010 and failed to show the next day, Mr. Lamell visited him at his home. According to Mr. Lamell, Claimant told him at that time that he had tripped over an ash bucket at home the previous Friday and hurt his ribs.
(b) Ron Lamell, Jr.
33. Ron Lamell, Jr. is the mill foreman. Like his father, he has worked there for his entire adult life. Unlike the senior Mr. Lamell, he spends most of his work day outdoors rather than in the office.
34. Mr. Lamell gave no testimony as to Claimant’s first alleged injury, involving the chipper chute. As to the second injury, Mr. Lamell testified that Claimant told him on Monday, January 4, 2010 that he had slipped and fallen on an ash bucket at home and jammed his ribs. Later that day, he left work early and never returned.
35. In late February 2010 Mr. Lamell visited Claimant at his home, to inquire as to his medical status and particularly, whether and when he might be planning to return to work. Claimant’s response was vague and indefinite, whereupon Mr. Lamell presented him with a letter terminating his employment. During the course of their conversation, Mr. Lamell never asked whether Claimant’s condition was in any way work-related, nor did Claimant ever volunteer that it was.
36. Claimant testified that the reason he did not report either having hit his head on the chipper chute or having fallen in the mill yard as work-related accidents was because he did not want to disqualify his co-employees from receiving their year-end workers’ compensation bonus. This reasoning might explain why he was reluctant to make a workers’ compensation claim initially. I cannot accept it as a credible explanation for his failure to do so after February 2010, when his employment for Defendant terminated. Indeed, at that juncture, rather than pursuing a claim for workers’ compensation benefits Claimant filed instead for unemployment compensation. Because he was as yet medically unable to work, his claim was denied. It was still some eight months after that before he first alleged having been injured at work. This he did by way of a Notice of Injury and Claim for Compensation (Form 5) filed by his attorney in November 2010.
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(c) Dennis Farley
37. Dennis Farley has been employed at the sawmill for 30 years. He recalled drinking coffee and chatting with Claimant in the break room on Monday, January 4, 2010, their first morning back at work after the holiday shut-down. According to Mr. Farley, Claimant told him that he had been working with sheetrock at home over the weekend and had hurt his neck. To Mr. Farley’s eye, however, Claimant did not look like he had hurt either his neck or his ribs.
Claimant’s Intellectual Functioning and Possible Memory Deficits
38. In the years since his alleged work injuries, Claimant has struggled at times with major depression.6 In the context of one such episode, in April 2011 he was hospitalized for more than two weeks for acute in-patient psychiatric treatment. In the course of that hospitalization, he underwent neuropsychological testing. Although the final report from that evaluation was not made part of the joint medical exhibit, preliminary results suggested that he suffered from longstanding memory deficits and other intellectual impairments. Notably, Claimant was described as being confident in his ability to recall information even though he did so incorrectly.
39. That Claimant was a vague historian is apparent from the medical records. The discrepancy between the history he reported to the walk-in clinic providers on January 4, 2010 and the one he reported only three days later has already been noted, see Finding of Fact No. 11, supra. Having closely evaluated his credibility as a witness, I can find no reason to believe that he concocted out of whole cloth either the chipper chute incident or the incident in which he fell on a bucket and injured his chest. That said, I have no confidence, and therefore cannot find, that those events occurred when and where he says they did, or that they led directly to the symptoms from which he subsequently complained.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
6 The disputed claims in the pending litigation were limited solely to the compensability of Claimant’s cervical injury. Whether his bouts with depression are causally related has not yet been put in issue.
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2. This claim turns entirely on Claimant’s credibility in describing two alleged work-related incidents, both unwitnessed, followed by a ten-month delay prior to asserting a claim for workers’ compensation benefits. In such instances, the trier of fact must evaluate the factual evidence carefully so as to explore any inconsistencies. Whether these are due to “hidden or not-so-hidden motivations,” Fanger v. Village Inn, Opinion No. 5-95WC (April 20, 1995), or merely to faulty recollections, if a claimant cannot sustain his burden of proving that the relevant events occurred as and when he alleges they did, his claim must fail.
3. The commissioner has in the past enumerated four questions to assist in the process of evaluating a claimant’s credibility in such claims. First, are there medical records contemporaneous with the claimed injury and/or a credible history of continuing complaints? Second, does the claimant lack knowledge of the workers’ compensation reporting process? Third, is the work performed consistent with the claimant’s complaints? And fourth, is there persuasive medical evidence supporting causation? Jurden v. Northern Power Systems, Inc., Opinion No. 39-08WC (October 6, 2008); Larrabee v. Heavensent Farm, Opinion No. 13-05WC (February 4, 2005), citing Seguin v. Ethan Allen, Opinion No. 28S-02WC (July 25, 2002).
4. The contemporaneous medical records here do not help Claimant’s cause as to either of the work-related incidents he has alleged. They make no mention whatsoever of the chipper chute incident, and report vague and inconsistent histories as to both the timing and mechanism of his fall onto a bucket some three weeks later. The chronology of the symptoms Claimant reported at the time is likewise confused and variable. And while Claimant exhibited a credible history of continuing complaints after his cervical injury was discovered, this is of no use in determining what came before that injury.
5. No evidence was produced in answer to the second question listed above, whether Claimant lacked knowledge of the workers’ compensation reporting process. Claimant was aware of Defendant’s workers’ compensation bonus program, and testified that he was deterred from reporting his injuries as work-related for fear of disqualifying his co-employees from receiving their bonuses. As noted above, Finding of Fact No. 36, supra, I cannot accept this as a credible explanation for his decision to delay for as long as he did.
6. Was the work Claimant was performing at the time of the alleged incidents consistent with his subsequent complaints? Notwithstanding Mr. Lamell, Sr.’s credible testimony that Claimant should not have been working in or around the chipper chute while the mill was running, I can accept that on some day during the week before Christmas he likely did so nevertheless. I can also accept that he hit his head on the chute, in exactly the manner he alleged. What I cannot accept is that that event led immediately to the neurological symptoms he later described. I simply cannot believe that Claimant would have failed to mention the chipper chute incident to his medical providers had the temporal link to those symptoms been as obvious as he later asserted. I thus conclude that the work he was performing at the time does not credibly account for his subsequent complaints.
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7. As for the second alleged incident, I conclude that Claimant has failed to sustain his burden of proving that the event occurred at work rather than at home. Considered against Mr. Lamell, Sr.’s credible testimony regarding the ever-present risk of fire at a sawmill, Claimant did not adequately explain how he came to be carrying a flammable substance in an open container there. Nor did he once report the fall as having occurred at work, either to his medical providers, to Mr. Lamell, Sr. or to Mr. Lamell, Jr. It may be that despite these inconsistencies Claimant’s version of events is accurate nonetheless, but in the end I am unconvinced.
8. Conflicting testimony was offered as to the final factor, whether the medical evidence supports work-related causation. Dr. White acknowledged that his causation opinion was based entirely on factual assumptions as to both the mechanism of Claimant’s alleged chipper chute injury and the chronology of his subsequent symptoms. Dr. Boucher credibly assailed the first assumption, explaining why, given Claimant’s own description of the incident, it was doubtful that he hit his head with enough force to cause a cervical disc herniation. Lacking persuasive evidence to support a clear temporal link between that event and the neurological symptoms Claimant later reported I must reject Dr. White’s second assumption as well.
9. Even assuming that the second alleged incident, involving the fall onto a bucket, occurred at work rather than at home, the medical evidence establishing a causal link is similarly unconvincing. Both Dr. White and Dr. Boucher theorized that a fall of this type might have included a whiplash component, but their testimony was purely speculative, and unsupported either by Claimant’s own description of the event or by the contemporaneous medical records.
10. Considering the totality of the evidence, and with due regard for the questions raised in cases such as this, I conclude that Claimant has failed to sustain his burden of proving that either of the work-related incidents he alleged were the likely triggers for his cervical injury. Therefore, his claim for workers’ compensation benefits must fail.
11. Having concluded that Claimant’s cervical condition is not compensable, I need not decide which of the two permanency opinions offered is the most credible. I note nevertheless that Dr. White benefitted from having personally examined Claimant, and therefore was better able to evaluate his current symptoms. To the extent this informed his decision to add an additional impairment for ongoing cervical myelopathy, whereas Dr. Boucher failed to do so, I already have found Dr. White’s rating to be the more credible one. See Finding of Fact No. 25, supra.
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12. Claimant having failed to prevail on his claim for benefits, he is not entitled to an award of costs and attorney fees.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for workers’ compensation benefits causally related to his cervical condition is hereby DENIED.
DATED at Montpelier, Vermont this 14th day of November 2012.
_______________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Theresa Westover v. North Country Hospital (July 20, 2012)

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

Theresa Westover v. North Country Hospital (July 20, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Theresa Westover Opinion No. 19-12WC
v. By: Jane Woodruff, Esq.
Hearing Officer
North Country Hospital
For: Anne M. Noonan
Commissioner
State File No. BB-01023 OPINION AND ORDER
Hearing held in Montpelier, Vermont on March 29 and 30, 2012
Record closed on May 4, 2012
APPEARANCES:
Charles Powell, Esq., for Claimant
David Berman, Esq., for Defendant
ISSUES PRESENTED:
1. Does Claimant suffer from complex regional pain syndrome causally related to her August 16, 2009 work injury and if so, what is the appropriate medical treatment for this condition?
2. Is Claimant’s lumbar pain causally related to her August 16, 2009 work injury and if so, what is the appropriate medical treatment for this condition?
3. Were Claimant’s medical and temporary total disability benefits appropriately discontinued on November 11, 2011 on the grounds that she had reached an end medical result?
4. Has Claimant had a work capacity at any time since August 30, 2010?
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EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1A: Illustration of the Lisfranc joint complex
Claimant’s Exhibit 1B: Illustration of axial loading at the Lisfranc joint complex
Claimant’s Exhibit 1C: X-ray of the Lisfranc joint complex
Claimant’s Exhibit 2: Claimant’s statement, November 17, 2011
Defendant’s Exhibit A: Email from Attorney Johnson to Attorney Powell,
November 30, 2011
Defendant’s Exhibit B: Deposition of George Holmes, M.D., March 19, 2012
Defendant’s Exhibit C: Deposition of Kern Singh, M.D., March 22, 2012
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant started working for Defendant in September 2005 as a certified nurse assistant and unit clerk. Her duties included ambulating patients, giving them snacks, getting them ready for bed and assisting the nurses with any procedures they needed to perform.
Claimant’s August 16, 2009 Work Injury
4. On August 16, 2009 Claimant was assisting a nurse to transfer a patient from one unit to another. As she was pulling the patient’s bed through some sliding glass doors, the doors began to close. She put her arm up to stop the doors, but the nurse on the other end of the bed continued pushing. The bed struck the back of Claimant’s right foot, pushed her heel up and crushed her foot forward into the floor, causing her to lunge forward. Claimant’s description of this mechanism of injury was credible in all respects.
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5. Claimant immediately felt excruciating pain at the back of her right heel, the top of her right foot and her toes. A nurse helped her to a chair and gave her ice to apply to her foot. Thereafter, she was transferred via wheelchair to Defendant’s emergency department for assessment. X-rays revealed a possible fracture of her fifth metatarsal (the long bone on the outside of the foot that connects to the little toe), but this later was determined to be an old, likely unrelated finding. Claimant was diagnosed with a right foot sprain and contusion and discharged home, first with crutches and later with an equalizer boot.
6. Defendant accepted Claimant’s injury as compensable, and began paying workers’ compensation benefits accordingly.
Claimant’s Course of Treatment
7. From August through December 2009, Claimant treated with Dr. Peer, an orthopedist, and his physician’s assistant. During that time, Claimant wore a splint, was assigned only sedentary duties at work and was unable to resume her regular daily living activities. She continued to experience swelling, and also complained of tenderness at the Lisfranc joint complex, the area between the mid- and forefoot that includes the five metatarsal joints. The joint appeared intact on x-ray, however.
8. In November 2009, Dr. Peer’s physician’s assistant first mentioned the possibility that Claimant might be suffering from reflex sympathetic dystrophy. Now commonly referred to as complex regional pain syndrome (CRPS), Type I, this neurological pain disorder is characterized by an abnormal increase in nervous system activity resulting from an inciting event such as controlled or accidental trauma.
9. At Dr. Peer’s referral, in February 2010 Claimant underwent an evaluation with Dr. Michelson, an ankle and foot specialist. Though read by the radiologist as normal, to Dr. Michelson’s eye an MRI study demonstrated increased signal at the base of the third tarsometatarsal joint. Dr. Michelson interpreted this finding as indicative of a ligamentous injury to the Lisfranc joint, in precisely the area where Claimant was most tender. This analysis was also consistent with Claimant’s report of the mechanism of her right foot injury, which involved axial loading to that joint.
10. As treatment for her ongoing symptoms, Dr. Michelson proposed surgery, specifically a third tarsometatarsal fusion at the Lisfranc joint. Defendant agreed to pay for this procedure, which Claimant underwent in March 2010. Among Dr. Michelson’s operative findings, he observed that the joint was grossly unstable, which can be indicative of an injury in that area.
11. Unfortunately, Claimant’s symptoms failed to resolve with surgery. To the contrary, her right foot and ankle pain worsened, to the point where her right leg became affected as well. She developed lower bone density at the fusion site, and when her walking boot was removed in July 2010 she was unable to bear any weight on her right foot.
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12. Despite her ongoing symptoms, in mid-July 2010 Dr. Michelson released Claimant to return to work in a modified duty position. To accommodate her restrictions, Defendant fashioned a job for her as a greeter at the front of the hospital. Claimant could sit, stand, elevate her leg and/or use a wheelchair as necessary.
13. Claimant worked at this position for approximately one month, until August 23, 2010 when she suffered a severe flare-up of pain in her right foot. After a week of half-time work, on August 30, 2010 Dr. Michelson determined that she was again totally disabled from working. Defendant resumed paying temporary total disability benefits accordingly.
14. Dr. Michelson questioned whether Claimant’s pain might be due to neuritis, that is, nerve inflammation emanating from her foot but originating in her spine. He thus referred her to Dr. Rinehart, a spine specialist, for further evaluation.
15. Dr. Rinehart evaluated Claimant in September 2010. By this point, she was still unable to weight bear on her right foot, and her pain was worse than it had been at the time of her fusion. Dr. Rinehart concluded that Claimant’s symptoms were not the result of neuritis, but rather likely represented reflex sympathetic dystrophy.
16. Shortly after Dr. Rinehart’s evaluation, Claimant and her husband moved to the Chicago area to be closer to family. They had made the decision to do so some time earlier, because Claimant’s husband was suffering from a debilitating disease and could no longer take care of their Vermont property. The sale of their house, which had been on the market since February, closed on September 15, 2010. Claimant was credible in her testimony as to the reasons for, and timing of, her move. I find that Dr. Michelson’s determination that by this point she was again unable to work was based entirely on her need for further medical evaluation and treatment, and therefore completely unconnected to this personal and family development.
17. To continue with her care in Illinois, Claimant first treated with Dr. Salvino, a podiatrist. Dr. Salvino diagnosed right lower extremity neuropathic pain and CRPS. Given the level of Claimant’s pain, Dr. Salvino referred her to Dr. Glaser for further evaluation. Dr. Glaser is a board certified anesthesiologist and specialist in interventional pain management, with a particular area of expertise in diagnosing and treating CRPS.
18. Claimant first saw Dr. Glaser on October 1, 2010. She reported numerous symptoms indicative of CRPS, including sharp, burning pain, swelling and increased sweating in her right foot and/or ankle, hypersensitivity to socks and sheets, and a constant hot feeling in her right foot but cold feeling in her right toes. Dr. Glaser also observed various signs of CRPS in Claimant’s right foot during his evaluation, such as allodynia (a painful response to a non-painful stimulus), hyperalgesia (a heightened response to a painful stimulus), moderate hypersensitivity to light touch and some limited range of motion.
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19. To a reasonable degree of medical certainty, and based both on the symptoms she reported and the signs he has observed since he began treating her, Dr. Glaser has concluded that Claimant suffers from CRPS and neuropathic pain. His analysis comports with the so-called “Harden criteria” for diagnosing CRPS. These criteria, which were developed at an invitation-only conference held in Budapest in 2003, are designed to better define the condition and refine a practitioner’s ability to diagnose it. Under the Harden criteria, a patient must report at least three from a list of qualifying symptoms and exhibit at least two from a list of qualifying signs to establish a diagnosis of CRPS.1
20. As treatment for Claimant’s CRPS, Dr. Glaser has recommended a five-week course of sympathetic nerve blocks, followed by a course of physical therapy and combined with prescription pain medications. Sympathetic nerve blocks are minimally invasive steroid injections designed to provide therapeutic relief. Should these prove ineffective, in Dr. Glaser’s opinion the next course of treatment likely would involve consideration of a spinal cord stimulator. To be considered for that device, Claimant first would have to undergo a psychological evaluation to determine if she is an appropriate candidate.
21. Dr. Glaser has treated Claimant on a monthly basis since October 2010. Aside from a short course of physical therapy, his treatment has consisted solely of pharmaceutical pain management. Despite his active advocacy, Defendant has refused to authorize payment of the sympathetic nerve blocks Dr. Glaser has recommended.
22. At Defendant’s request, in November 2010 Claimant underwent an independent medical examination with Dr. Holmes, a board certified orthopedic surgeon who specializes in foot and ankle injuries. In preparation for his examination, Dr. Holmes reviewed Claimant’s medical records through September 7, 2010. Of note, however, he did not have or review the operative report relative to Dr. Michelson’s February 2010 Lisfranc joint fusion surgery.
23. Dr. Holmes acknowledged that the mechanism of Claimant’s injury was axial loading at the Lisfranc joint complex, though he stopped short of identifying the August 2009 incident at work as the inciting event. He attributed her ongoing symptoms to delayed and/or non-union of the third tarsometatarsal fusion and neuritis. However, according to his interpretation of Claimant’s diagnostic imaging studies no abnormalities were apparent, and therefore he could not justify Dr. Michelson’s fusion surgery as reasonable and necessary treatment. I find that Dr. Holmes’ opinion in this regard is weakened by the fact that he failed to review the operative report from that surgery.
24. Dr. Holmes opined that Claimant was not suffering from CRPS when he examined her.
1 The Harden criteria are to be distinguished from the more stringent criteria for diagnosing CRPS as enunciated in the fifth edition of the AMA Guides to the Evaluation of Permanent Impairment.
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25. Dr. Holmes determined that Claimant had a sedentary work capacity. With that opinion as support, Defendant filed a Notice of Intention to Discontinue Benefits (Form 27), terminating Claimant’s temporary total disability benefits effective December 13, 2010 on the grounds that notwithstanding her relocation to Chicago the hospital greeter position she previously had held fit her restrictions and was still available to her. Ultimately the Department rejected the discontinuance and ordered that benefits be reinstated retroactively.
26. In addition to the ongoing symptoms in her right foot, in early 2011 Claimant began to complain of low back pain. As the year progressed, the pain began radiating into her buttocks, hips and below her left knee. Dr. Glaser has attributed these symptoms to lumbar radiculopathy and lumbar facet syndrome without myelopathy. Like most people her age, Claimant likely had preexisting degenerative disc disease, but the condition was entirely asymptomatic. As a consequence of her work injury and increasingly severe right foot pain, she altered the dynamics of her gait and bore virtually all of her weight on her left side. In Dr. Glaser’s experience over the past twenty years, it is common for patients with suddenly altered gait mechanics to develop low back pain, and in his opinion this was what caused Claimant’s low back pain as well. I find this analysis persuasive.
27. Dr. Glaser has recommended facet joint injections as treatment for Claimant’s low back pain.
Expert Medical Opinions
28. The parties have offered various expert medical opinions as to (a) whether Claimant suffers from CRPS and if so, whether it is causally related to her August 2009 work injury; (b) whether her low back pain is causally related to her work injury; (c) whether the proposed treatments for either condition are reasonable and necessary; and (d) whether and when Claimant should have been able to return to work.
(a) CRPS Diagnosis and Causation
29. As noted above, Finding of Fact No. 19 supra, Dr. Glaser has diagnosed Claimant with CRPS. He did not apply the stringent criteria mandated by the fifth edition of the AMA Guides to the Evaluation of Permanent Impairment to make this diagnosis. In his opinion, those criteria are specific to evaluating impairment in a forensic setting and are not useful for diagnosis in a doctor-patient relationship. I find that Dr. Glaser’s analysis in this regard comports with the commissioner’s prior precedent on this issue. Jacobs v. Metz and Associates, Ltd., Opinion No. 02-12WC (January 13, 2012); Brown v. W.T. Martin Plumbing & Heating, Opinion No. 14-10WC (April 15, 2010); cf., Bruno v. Directech Holding Co., Opinion No. 18-10WC (May 19, 2010).
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30. At Dr. Glaser’s referral, in January 2012 Claimant underwent a second opinion evaluation with Dr. Lubenow, a board certified anesthesiologist and specialist in interventional pain management. Dr. Lubenow was one of the invitees to the Budapest conference in 2003 at which the Harden criteria for diagnosing CRPS were developed. Currently he is the medical director at the Rush Hospital Pain Center.
31. Dr. Lubenow concluded that Claimant had been appropriately diagnosed with CRPS. In making this diagnosis, Dr. Lubenow noted many of the same symptoms that Claimant had reported to Dr. Glaser, including burning, sharp pain in her right foot, hypersensitivity to touch and increased sweating. He also observed many of the same signs, including allodynia, swelling, skin mottling, temperature changes and reduced range of motion. His diagnosis comported with the Harden criteria and I find it both credible and well supported.
32. According to Dr. Lubenow, Claimant’s CRPS was most likely causally related to her March 2010 tarsometatarsal fusion surgery. In his opinion, this surgery constituted reasonable and necessary treatment for her August 2009 work injury, which he characterized as involving axial loading with consequent damage to the Lisfranc joint. I find Dr. Lubenow’s analysis credible.
33. Other doctors have disagreed with Dr. Glaser’s and Dr. Lubenow’s assessment. As noted above, Finding of Fact No. 24 supra, Dr. Holmes determined that Claimant was not suffering from CRPS at the time of his November 2010 independent medical examination.
34. Dr. Ensalada also disputes Claimant’s CRPS diagnosis. Dr. Ensalada is board certified in anesthesiology and pain management. At Defendant’s request, he reviewed Claimant’s medical records in October 2011. Based on that review, he concluded that Claimant at most sustained a minor soft tissue injury to her right foot as a result of the August 2009 work incident. Dr. Ensalada based this opinion largely on the fact that neither Dr. Holmes nor the interpreting radiologist for Claimant’s 2010 MRI study noted any abnormal findings at the base of her metatarsals.
35. As for CRPS, upon review of Claimant’s medical records Dr. Ensalada found insufficient evidence to justify a diagnosis under either the Harden diagnostic criteria or the criteria mandated by the 5th edition of the AMA Guides. From my reading of Dr. Glaser’s records, however, I find that sufficient symptoms and signs were in fact reported to establish CRPS in accordance with the Harden criteria. Therefore, I find Dr. Ensalada’s reasoning in this regard unpersuasive.
36. Last, Dr. Pasquale also rendered an opinion as to Claimant’s CRPS diagnosis. Dr. Pasquale is board certified in physical, rehabilitation and pain medicine. At Defendant’s request, he performed an independent medical examination of Claimant in March 2012. He also reviewed Claimant’s medical records. Significantly absent from this review was Dr. Lubenow’s report, however.
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37. Dr. Pasquale determined that although Claimant did not meet the diagnostic criteria for CRPS under the 5th edition of the AMA Guides, she did meet the Harden criteria. Consistent with Dr. Lubenow’s opinion, Dr. Pasquale concluded that Claimant’s CRPS most likely occurred as a result of her March 2010 tarsometatarsal fusion surgery. He based this conclusion on the fact that his review of the medical records did not reveal any signs or symptoms of CRPS prior to that surgery, and also on his belief that the treating surgeon would not have proceeded had CRPS been suspected, as surgery would only have made it worse. I find this analysis credible.
(b) Low Back Pain Diagnosis and Causation
38. As noted above, Finding of Fact No. 26 supra, Dr. Glaser has diagnosed Claimant’s low back pain as lumbar radiculopathy and facet syndrome. He attributes these conditions to the altered gait she adopted as a consequence of her increasingly severe right foot pain.
39. Both Dr. Singh and Dr. Ensalada have disputed this analysis. Dr. Singh is a board certified orthopedic surgeon who specializes in the spine. At Defendant’s request, he conducted an independent medical examination in October 2011.
40. In Dr. Singh’s opinion, there was no objective evidence that Claimant’s lumbar spine condition was causally related in any way to her August 2009 work injury. She had a normal neurological exam and her diffuse pain complaints did not correlate, because there was no anatomic sensory loss in either lower extremity. Dr. Singh also disputed Dr. Glaser’s conclusion that Claimant’s low back symptoms were attributable to her altered gait. I find his reasoning in this regard unpersuasive.
41. Dr. Ensalada also disputed the causal relationship between Claimant’s low back pain and her August 2009 work injury. In his opinion, her preexisting degenerative disc disease adequately accounted for her symptoms, and there was no basis for concluding that the work injury aggravated it in any way.
42. In contrast to Dr. Ensalada’s opinion, Dr. Pasquale concluded that Claimant’s altered gait could in fact be the source of her low back pain. I find his testimony in this regard credible.
(c) Proposed Medical Treatment
43. As noted above, Finding of Fact No. 20 supra, Dr. Glaser has recommended a combination of sympathetic nerve blocks, physical therapy and pharmaceutical pain management as the first step in treating Claimant’s CRPS. As treatment for her low back pain, he has recommended facet joint injections, see Finding of Fact No. 27 supra.
44. Dr. Lubenow concurs with Dr. Glaser’s proposed CRPS treatment plan. Should the combination of nerve blocks, physical therapy and pain medications fail to provide adequate relief, he also concurs that the next step would be consideration of a spinal cord stimulator. I find Dr. Lubenow’s testimony in this regard very credible.
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45. Dr. Pasquale also concurred with Dr. Glaser’s CRPS treatment plan, at least with respect to the proposed sympathetic nerve blocks. He credibly testified that if he was treating Claimant for her CRPS that would be his recommended course of treatment.
46. Because in Dr. Ensalada’s analysis Claimant is not suffering from CRPS, he concluded that it is not medically reasonable for her to undergo treatment for that condition. Therefore, in his opinion neither sympathetic nerve blocks nor physical therapy nor prescription pain medications are warranted.
47. Dr. Ensalada also concluded that it was not medically reasonable for Claimant to undergo any treatment for low back pain causally related to her August 2009 work injury.
(d) Claimant’s Work Capacity
48. As noted above, Finding of Fact No. 25 supra, Dr. Holmes determined in November 2010 that Claimant had a sedentary work capacity.
49. Dr. Glaser disagreed, both then and now. In his opinion, the fact that Claimant had been unable to continue in the hospital greeter position Defendant had crafted for her in July 2010, despite significant accommodations, was proof that she lacked a work capacity at that time. At this point, she is experiencing severe, chronic pain on a daily basis that interferes with her sleep and is poorly controlled even with increasing dosages of pain medications. In Dr. Glaser’s opinion, which I find credible, this precludes her from working at even a sedentary capacity.
50. Dr. Lubenow also believes that Claimant currently lacks a work capacity. In his opinion, it is imperative that Claimant be allowed time to heal, and she is more likely to have a better outcome if her CRPS is treated first, before she returns to work. Dr. Lubenow also cautioned that the longer Claimant’s CRPS goes untreated, the longer it will take for the condition to respond, and the more likely that it will lead to chronic disability, more invasive treatment and greater impairment. I find Dr. Lubenow’s reasoning on this issue very persuasive.
51. Dr. Singh concluded that Claimant had a full time, full duty work capacity as of the date of his evaluation in October 2011, but solely as it related to her lumbar spine. He rendered no opinion as to work capacity with respect to Claimant’s right foot or ankle.
52. On the basis of his March 2012 independent medical examination, Dr. Pasquale concluded that Claimant has a sedentary work capacity, and so long as she is provided with a wheelchair, is capable of performing duties similar to those of the hospital greeter position Defendant had offered her in July 2010. In fact, however, the credible medical evidence establishes that Claimant did not tolerate this job well enough to continue in it beyond August 30, 2010, see Findings of Fact Nos. 13 and 16, supra. Dr. Pasquale’s opinion on this issue is significantly undermined, therefore.
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53. Dr. Ensalada concluded that Claimant has a full time, light duty work capacity. He also concluded that Claimant had reached an end medical result as of the date of his examination, October 14, 2011. Dr. Ensalada rated Claimant with a three percent whole person permanent impairment, based solely on her unresolved pain complaints.
54. With Dr. Ensalada’s opinion as support, and with the Department’s subsequent approval, Defendant terminated Claimant’s temporary total disability benefits on end medical result grounds, effective November 11, 2011.2 It also discontinued payment for her prescription pain medications on the grounds that these were not necessitated by her work injury. Claimant disputes both of these determinations.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The disputed issues in this case are (a) whether Claimant suffers from CRPS and low back pain causally related to the August 2009 work injury and if so, what is reasonable and necessary treatment for each condition; (b) whether she has reached an end medical result for her work-related injuries; and (c) whether she has a work capacity.
3. The parties presented conflicting expert opinions on all of these issues. In such cases, the commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
2 Presumably in the event that its discontinuance on end medical result grounds was deemed unsupported, Defendant also sought to discontinue benefits on the grounds that Claimant had a work capacity and had failed to seek suitable work. Claimant acknowledged at hearing that she has not undertaken a work search since moving to Chicago in September 2010.
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4. At the outset, I must determine precisely what injury Claimant suffered as a result of the August 2009 work incident. I conclude, as both Drs. Lubenow and Holmes acknowledged, that the mechanism of injury was axial loading of the Lisfranc joint complex in her right foot. I further conclude that the August 2009 work incident was the inciting event, and that Defendant is thus responsible for all of the direct and natural consequences of that injury. See Bower v. Mount Mansfield, Opinion No. 03-12WC (January 18, 2012), citing 1 Lex K. Larson, Larson’s Workers’ Compensation §10 (Matthew Bender, Rev. Ed.), at p. 10-1. Whether this includes responsibility for the consequences of Dr. Michelson’s March 2010 tarsometatarsal fusion surgery requires consideration of both medical and legal factors.
5. The parties presented conflicting medical evidence as to whether Dr. Michelson’s surgery constituted reasonable and necessary treatment for Claimant’s work injury. Dr. Lubenow concluded that the surgery was justified. Noting the lack of any readily apparent abnormalities on diagnostic imaging studies, Dr. Holmes concluded that it was not.
6. With particular reliance on the second and third factors listed above, I conclude that Dr. Lubenow’s opinion on this issue carries the greatest weight. He reviewed Dr. Michelson’s operative report and particularly, his observation of instability at the Lisfranc joint complex. This was objective support, not only for the injury, but also for the need to repair it. Dr. Holmes did not even review this critical report, and as a result his opinion on the issue is less persuasive.
7. Therefore, I conclude from the more credible medical evidence that Dr. Michelson’s March 2010 fusion surgery constituted reasonable and necessary treatment causally related to Claimant’s compensable work injury.
8. Even if the credible medical evidence had pointed otherwise, having long ago accepted and paid for Claimant’s fusion surgery I consider Defendant to have waived the right to contest responsibility for the medical complications that developed subsequently. This is not a case where an employer has paid for relatively inexpensive medical supplies simply because the cost of doing so was less than the cost of denying responsibility. Smiley v. State of Vermont, Opinion No. 12-12WC (April 15, 2012); Hastings v. Green Mountain Log Homes, Opinion No. 03-09WC (January 1, 2009). Nor is it a case where the employer paid medical bills in good faith before it was certain whether or not the claimed injury was actually compensable, see Brace v. Vergennes Auto, Inc., Opinion No. 42-06WC (October 9, 2006). Here, Defendant acknowledged its liability for the injury to Claimant’s Lisfranc joint complex by paying for a significant, presumably costly surgical intervention. Had it wanted to question the reasonableness of that treatment, it should have done so before the surgery occurred, not many months afterwards.
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Does Claimant suffer from CRPS, is it causally related, and if so, what is reasonable and necessary treatment?
9. Having concluded that Defendant bears responsibility for the direct and natural consequences of Claimant’s March 2010 tarsometatarsal fusion surgery, I next must consider whether she now suffers from CRPS causally related to that surgery. The most credible medical evidence on this issue overwhelmingly favors Claimant’s experts. As her treating physician, Dr. Glaser was best positioned to evaluate the reported symptoms and observe the required signs of CRPS over an extended period of time. His diagnosis was later confirmed by Dr. Lubenow, a highly credentialed expert in the field. Indeed, even Defendant’s expert, Dr. Pasquale, concurred both that a CRPS diagnosis was appropriate under the Harden criteria and that it likely was causally related to Claimant’s March 2010 surgery. In contrast to these opinions, both Dr. Holmes’ and Dr. Ensalada’s conclusions lacked the objective support necessary to render them persuasive.
10. As noted above, Finding of Fact No. 29 supra, the commissioner’s prior precedent has established that under Vermont’s workers’ compensation statute the criteria for diagnosing CRPS as reflected in the 5th edition of the AMA Guides must be used in the context of determining “the existence and degree” of a claimant’s permanent impairment, but are not necessarily determinative on other issues. 21 V.S.A. §648; Jacobs, supra; Bruno, supra; Brown, supra at Conclusion of Law No. 7, n.4. As to the disputed issues here – whether Claimant suffers from CRPS causally related to her March 2010 surgery – I conclude that she has met the appropriate diagnostic criteria, that her CRPS is causally related to a surgery necessitated by her work injury and that it is therefore a compensable condition.
11. As for the appropriate treatment for that condition, I conclude from the credible evidence that Dr. Glaser’s proposed treatment plan is reasonable, necessary, causally related and therefore compensable. Dr. Glaser has been treating chronic pain patients for more than twenty years. Both Dr. Lubenow and Dr. Pasquale have endorsed the sympathetic nerve blocks he has proposed as the appropriate next step in Claimant’s treatment plan. I am persuaded by their opinions on this issue.
12. Having concluded that Claimant’s CRPS is causally related to her work injury, I further conclude that it was inappropriate for Defendant to discontinue payment for the pain medications prescribed by Dr. Glaser as treatment for that condition. To the extent that Dr. Glaser determines that medically reasonable and appropriate pharmaceutical pain management is still warranted, Defendant is obligated to pay for this treatment as well.3
3 It is as yet premature to impose responsibility upon Defendant for additional physical therapy, as even Dr. Glaser has recommended that this treatment be delayed for the time being. Similarly, although the prospect of a spinal cord stimulator has been raised, it has not yet been definitively recommended, and therefore it also would be premature to rule on the efficacy of that treatment at this point.
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Are Claimant’s low back pain and related symptoms causally related to the work injury?
13. I accept Dr. Glaser’s opinion on this issue as the most credible. He has been treating Claimant for the past eighteen months, and has treated patients with chronic pain and CRPS for twenty years. Based on that experience, I find credible his observations as to the frequency with which patients who walk with altered gait mechanics also develop low back pain. Here again, Dr. Glaser’s opinion was endorsed by Defendant’s own expert, Dr. Pasquale. I conclude Claimant’s low back pain and related symptoms are causally related to her work injury.
14. I also conclude that Dr. Glaser’s proposed facet joint injections constitute reasonable and necessary treatment for Claimant’s low back pain and related symptoms. In reaching this conclusion, I accept Dr. Glaser’s opinion as more credible than Dr. Ensalada’s. He is Claimant’s treating physician, and also is well versed in treating patients with similar symptoms.
Has Claimant reached an end medical result for her work-related injuries?
15. Having concluded that Claimant suffers from CRPS and low back pain causally related to her work injury and is in need of further treatment, I further conclude that she is not at end medical result. Bruno v. Directech Holding Co., supra. Defendant’s November 11, 2011 discontinuance of temporary total discontinuance on those grounds was unjustified, therefore.
Has Claimant had a work capacity at any time since August 30, 2010?
16. Last, as to Defendant’s argument that Claimant is capable of working, at least in a position similar to the hospital greeter job she left on August 30, 2010, I conclude that the credible medical evidence establishes otherwise. In reaching this conclusion, I acknowledge that a provider’s status as the treating doctor is not necessarily determinative on this issue. Here, however, Claimant’s reports as to the extent of her pain and her resulting inability to perform even the limited duties she had been assigned as a hospital greeter was entirely credible. For Drs. Michelson and Glaser to have relied on those reports as the basis for their conclusion that she was totally disabled from working was appropriate.
17. Dr. Lubenow’s opinion on this issue was persuasive as well, particularly as to the risk that Claimant’s CRPS will worsen if she attempts to return to work before the condition is fully treated.
18. Therefore, I conclude from the most credible medical evidence that Claimant has been totally disabled from working since August 30, 2010. As she has lacked a work capacity since that time, she has never become obligated to conduct a search for suitable work. Defendant’s discontinuance on those grounds must fail as well.
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19. As Claimant has prevailed on her claim for benefits, she is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit her itemized claim.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total disability benefits retroactive to November 11, 2011 and ongoing, in accordance with 21 V.S.A. §642, with interest as calculated in accordance with 21 V.S.A. §664;
2. Medical benefits covering all reasonable medical services and supplies causally related to treatment of Claimant’s CRPS and low back pain, in accordance with 21 V.S.A. §640; and
3. Costs and attorney fees in amounts to be determined in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 20th day of July 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.

Calvin McKiernan v. Standard Register (December 2, 2009)

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

Calvin McKiernan v. Standard Register (December 2, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Calvin McKiernan Opinion No. 47-09WC
v. By: J. Stephen Monahan, Esq.
Division Director
Standard Register Co.
For: Patricia Moulton Powden
Commissioner
State File Numbers Z-01455 and T-14760
OPINION AND ORDER
Hearing held in Montpelier, Vermont on August 27, 2008
Record closed on September 15, 2008
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
David Berman, Esq., for Defendant Liberty Mutual Insurance Company
Justin Sluka, Esq., for Defendant Travelers Insurance Company
ISSUES PRESENTED:
1. Did Claimant’s current low back condition arise out of and in the course of his employment at Standard Register?
2. Did Claimant’s right shoulder injury arise out of and in the course of his employment at Standard Register?
3. Is Claimant entitled to temporary disability benefits for any time after Standard Register closed for business and he was laid off?
4. Has Claimant reached an end medical result with regard to his current back and shoulder condition?
5. Is Claimant entitled to permanent partial disability compensation for an earlier workers’ compensation claim that occurred in February 2003 while Travelers Insurance Company was on the risk?
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PRE-HEARING MOTIONS:
Summary judgment shall be awarded to the moving party if it can demonstrate that there is no genuine issue as to any material fact and it is entitled to judgment as a matter of law. Summary judgment is mandated when, after an adequate time for discovery, a party “fails to make a showing sufficient to establish the existence of an element” essential to the case and on which it has the burden of proof at trial. Poplaski v. Lamphere, 152 Vt. 251 (1989), citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986). In evaluating the propriety of a summary judgment motion, the non-moving party is entitled to the benefit of all reasonable doubts and inferences. Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22 (1996); Murray v. White, 155 Vt. 621 (1991).
In this case, genuine issues of material fact exist that preclude summary judgment for any party. First, the parties dispute the relationship of Claimant’s current low back and shoulder complaints to his employment at Standard Register. Claimant’s evidence suggests that his stressful, repetitive work with the Hunkler2 machine aggravated his low back and shoulder condition. In contrast, one of Defendants’ experts is of the opinion that Claimant’s problems are the result of degenerative changes associated with the aging process. The evidence diverges on the critical question of causation, therefore, making summary judgment on the issue inappropriate.
Assuming that Claimant’s condition is found to be work-related, furthermore, the parties dispute whether he is either totally or partially disabled from working. Although the parties agree that the reason Claimant ceased working for Standard Register was because the company closed, not because of his injury, they dispute whether his injuries currently prevent him from finding employment. This too presents a genuine issue of material fact.
Last, Claimant and Defendant Travelers dispute whether he is entitled to any permanent partial disability benefits for the February 21, 2003 back injury. This issue as well poses genuine issues of material fact.
Because each of these issues raise disputed questions of material fact, summary judgment is not appropriate, and all such motions are denied.
FINDINGS OF FACTS:
1. At all times relevant to this proceeding, Claimant was an employee and Defendant Standard Register was his employer as these terms are defined in Vermont’s Workers’ Compensation Act.
2. Travelers Insurance Company (“Travelers”) was Defendant’s workers’ compensation insurer at the time of Claimant’s February 2003 compensable work-related injury (State File No. T-14760).
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3. Liberty Mutual Insurance Company (“Liberty”) was Defendant’s workers’ compensation insurer from July 1, 2003 until Standard Register ceased doing business in Vermont. Thus, Liberty was on the risk at the time of Claimant’s March 2007 injury claim (State File No. Z-1425).
4. The parties have stipulated that Travelers does not bear any liability for Claimant’s current back and shoulder claim. It may be liable for permanency benefits related to the 2003 injury.
5. Standard Register closed and ceased business on or about March 27, 2007.
6. Claimant worked full-time for Standard Register until the day the company closed.
7. Claimant did not seek treatment for his current alleged low back injury between July 2003 and March 14, 2007 (six days prior to his last day of work). Claimant worked full-time during that period, and no medical provider restricted his work activities during that period.
8. Claimant also first reported shoulder complaints on March 14, 2007. He saw a physician but no work restrictions were placed on him at that time.
9. According to Claimant, he had both back and shoulder complaints between July 2003 and March 14, 2007, but he feared losing his job if he reported another injury and so decided not to do so until just a week prior to being laid off. I do not find Claimant’s fear-of-termination story credible. He had filed complaints in the past, and had not been penalized by the company. In fact, he filed a mental stress claim during this period, and even quit his job for a week, but was rehired with no loss of seniority or benefits. I think it more likely that if Claimant was reluctant to file a claim, it was because he feared that if he were taken out of work he would be deemed ineligible for the severance package that the company was offering.
10. By his own admission, Claimant was willing to tailor his story to achieve a possible end. For example, after learning that the plant would be closing, Claimant thought he might want to become a truck driver. To that end, he went to a Dr. Iqbal, told the doctor that he had no complaints at all and sought a medical opinion that he was physically able to drive a truck. Claimant now alleges that these statements were not accurate, and that he only made them in order to obtain a medical release to drive a truck.1
1 As an aside, Claimant’s entire truck-driver scheme was rather unorthodox and demonstrates questionable judgment. He did not seek any formal training or evaluation, and evidently did not fully comprehend the demands of truck driving in any respect. After arranging to drive a friend’s truck, Claimant discovered that the job was harder than he initially had imagined and thereafter abandoned the plan.
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11. Claimant’s testimony surrounding the termination of physical therapy treatment for his 2003 back injury is also telling. The physical therapy notes indicate that his condition was improving over time. On March 28, 2003 Claimant cancelled his appointment with the physical therapist, reporting that he had no symptoms. He sought no further treatment. At his deposition in 2008 Claimant acknowledged that his back had improved with physical therapy. At the formal hearing, however, Claimant’s testimony was somewhat different. There he stated that he cancelled his physical therapy appointment because he was unhappy and angry with his employer, who was asking when treatment would finish. Claimant also suggested that he did not like the “light duty” jobs offered by Standard Register, so he decided to stop going to physical therapy and return himself to full duty work status. This pattern of changing his story to achieve what he perceived to be a more beneficial result makes Claimant a less than credible witness.
Temporary Disability Benefits
12. Notwithstanding Claimant’s limited credibility, I find Dr. Bucksbaum’s opinion, supported in part by Dr. Ensalada’s opinion as well, compelling. Claimant was employed for several years in a difficult job. The stresses and strains of that job caused him injury and accelerated the onset of his arthritic degenerative condition.
13. Drs. Bucksbaum and Ensalada believe that Claimant’s current back injury is not a recurrence of his February 2003 injury. Rather, they believe that Claimant’s work at Standard Register after the arrival of the Hunkler2 machine in July 2003 resulted in an aggravation of his pre-existing condition.
14. In contrast, Dr. Johansson is of the opinion that Claimant’s current back and shoulder problems are the result of age-related degenerative changes, and have not been caused by his work for Standard Register. Dr. Johansson does not adequately address whether Claimant’s work in any way accelerated the pre-existing condition. In this respect, I find Dr. Johansson’s opinion to be both less complete and less credible than the opinions of Drs. Bucksbaum and Ensalada.
15. Based on the medical records submitted, Claimant did not seek medical treatment for his low back or right shoulder between November 2003 and August 2006.
16. On or about June 11, 2007 Dr. Bucksbaum placed work restrictions on Claimant but did not bar him from all work. According to Dr. Bucksbaum, Claimant had a limited work capacity dating back to March 20, 2007. Under the circumstances, I find that opinion too speculative to accept. Claimant had managed to work a full schedule right up until that date, and presumably would have continued to work thereafter had he not been laid off due to the company’s closure. I find that the evidence establishes that June 11, 2007 is the earliest date that Claimant established an entitlement to temporary partial disability.
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17. Claimant began looking for work, and kept a job search log as soon as he learned that he was required to do so. Claimant is entitled to temporary partial disability benefits from June 11, 2007 through April 2008, and thereafter for each week in which he establishes that he performed a good faith work search. Notwithstanding the fact that he has some work capacity, Claimant has not worked at all during this period. Therefore, his temporary partial disability rate is equivalent to the temporary total disability benefit – two-thirds of his average weekly wage for the twelve weeks preceding March 20, 2007.
Permanent Partial Disability Benefits
18. Claimant essentially declared himself at end medical result on March 28, 2003 when he cancelled his physical therapy appointment and announced that he was ready for full duty work. He made no request for permanent partial disability benefits at that time, and the insurer on the risk at the time (Travelers) made no effort to evaluate whether any permanency benefits were due.
19. In 2003 the applicable statute of limitations within which to make a workers’ compensation claim was six years. Claimant’s claim for permanency benefits attributable to this earlier injury is timely. Because of the lapse of time between claimant’s “medical end” relating to the 2003 injury and the date of his permanency evaluations, an accurate determination is difficult, but not impossible.
20. Workers’ Compensation Rule 18.1100 provides that “The employer (insurer) shall take action necessary to determine whether an employee has any permanent impairment as a result of the work injury at such time as the employee reaches a medical end result.” Taken in its proper context, the rule contemplates that the trigger for the insurer’s action will be either a medical opinion establishing end medical result or a claim for permanent disability benefits. The rule does not anticipate a circumstance where a claimant would deem him- or herself at end medical result. As that is essentially what happened in this instance, I will not interpret Rule 18.1100 to require the insurer to have sought a permanency opinion before a claim was made or a medical determination rendered. I do note, however, that an insurer certainly could protect itself by seeking a determination of both end medical result and permanency at the time a claimant returns to work.
21. I find that Claimant had no impairment after the 2003 injury. Although Dr. Bucksbaum offered an opinion that Claimant had a 5% whole person impairment, he could not credibly testify that Claimant exhibited muscle spasm or guarding, asymmetric loss of range of motion, or non-verifiable radicular complaints at the time he returned to full duty work. I am therefore left with the opinion of Dr. Ensalada, which, although it appears to be an effort to offer a legal opinion rather than a medical opinion, is at least consistent with the 5th edition of the AMA Guides. Since the burden of establishing an entitlement to any permanency benefits is on the claimant, and Claimant has not met that burden, no benefits are awarded.
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CONCLUSIONS OF LAW:
1. In workers’ compensation cases, sufficient competent evidence must be submitted verifying the causal connection between an injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984). Where the causal connection between an accident and an injury is obscure, and a lay person would have no well-grounded opinion as to causation, expert medical testimony is necessary. Lapan v. Berno’s Inc., 137 Vt. 393 (1979).
2. There must be created in the mind of the trier of fact something more than possibility, suspicion or surmise that the incidents complained of were the cause of the injury and resulting disability. Claimant must demonstrate that the most probable hypothesis is that the work incidents caused or aggravated the injury. See, Burton v. Holden Lumber, 112 Vt 17 (1941).
3. If a claimant has a pre-existing condition, he or she may still be entitled to workers’ compensation benefits if he or she is able to demonstrate that the work incident has aggravated or accelerated that pre-existing condition. See Jackson v. True Temper, 151 Vt. 592, 595 (1989).
4. The general rule is that a claimant who voluntarily quits his or her job for reasons unrelated to a compensable work injury is not entitled to temporary total disability. The workers’ compensation statute is remedial in nature, and so, to avoid harsh, unfair results, there is an exception to the general rule for a claimant who can demonstrate: (a) a work injury; (b) a reasonably diligent attempt to return to the work force; and (c) that the inability to return to the work force (or a return at reduced wages) is related to the work injury and not to other unrelated factors. See, e.g., J. D. v. Putney Paper Co., Opinion No. 13-08WC (April 8, 2008); J.P. v. Pollution Solutions of Vermont, Opinion No. 23A-01WC (October 5, 2001), citing Andrew v. Johnson Controls, Opinion No 3-93WC (June 13, 1993).
5. When a claimant had no wages prior to the date of disability, workers’ compensation benefits are calculated based on the pre-injury wages plus any additional cost of living increases that may have accrued in the interim. See J. D. v. Putney Paper Co., supra; J.P. v. Pollution Solutions of Vermont, supra.
6. I conclude that Claimant’s receipt of severance benefits does not prohibit his receiving workers’ compensation benefits for the same period. Severance benefits are paid in exchange for the release and waiver by the employee of any right to sue the employer. They are sufficiently different from wages so as not to be considered when evaluating a right to temporary disability benefits.
7. I also conclude that Claimant’s application for and receipt of unemployment benefits does not defeat his claim for temporary disability benefits. Claimant’s physician had placed work restrictions on him, but had not prohibited all forms of work. Furthermore, to the extent that Claimant receives temporary disability benefits during a period when he also received unemployment benefits, he will have to repay the latter.
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8. The Workers’ Compensation Act provides:
Where the disability for work resulting from an injury is partial, during the disability and beginning on the eighth day thereof, the employer shall pay the injured employee a weekly compensation equal to two-thirds of the difference between his average wage before the injury and the average weekly wage which he or she is able to earn thereafter.
21 V.S.A. §646.
9. Claimant has established that he was temporarily partially disabled as of June 11, 2007. He is entitled to temporary partial disability benefits from June 19, 2007 through April 2008, and thereafter for each week in which he establishes that he performed a good faith work search. Since Claimant was unable to find employment consistent with his limited ability to work payment shall be based on two-thirds of his average weekly wage for the twelve weeks preceding March 20, 2007.
10. For the purposes of workers’ compensation, “permanent disability” is established when the injured employee either reaches an end medical result or when maximum earning power is restored through resumption of employment. Wroten v. Lamphere, 147 Vt. 606, 610, (1987); Orvis v. Hutchins, 123 Vt. 18, (1962). The claimant has the burden of proving that a work injury has resulted in a permanent impairment. The degree of impairment must be determined using the 5th edition of the AMA guides. 21 V.S.A. §648. Claimant failed to meet his burden of establishing that he had a permanent partial disability impairment when he returned to full duty work in March of 2003.
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ORDER:
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby ORDERED that:
1. Claimant’s request for an award of permanent partial disability benefits based on the 2003 injury is DENIED.
2. Liberty Mutual is ORDERED to pay:
a. All medical benefits that are determined to be reasonable and necessary treatment for Claimant’s compensable March 2007 work injury;
b. Temporary partial disability benefits from June 19, 2007 through April 2008, and thereafter for each week in which Claimant establishes that he performed a good faith work search;
c. Liberty Mutual is further ordered to promptly evaluate Claimant’s entitlement to vocational rehabilitation services.
4. Claimant shall have 30 days from the date of this Order to submit his request for costs and attorney fees.
DATED at Montpelier, Vermont this 2nd day of December 2009.
__________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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