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

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C. F. v. National Life Insurance Co. (November 17, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
C. F. Opinion No. 44-06WC
By: Margaret A. Mangan
v. Hearing Officer
National Life Insurance Co. For: Patricia Moulton Powden
Commissioner
State File No. T-20446
Hearing held in Montpelier on August 22 and 23, 2006
Record closed on September 20, 2006
APPEARANCES:
Steven P. Robinson, Esq. and Jennifer Ciarlo Pacholek, Esq., for the Claimant
Keith J. Kasper, Esq. and David Berman for the Defendant
ISSUES:
1. Is Claimant’s August 19, 2003 fall at home a compensable result of her March 10, 2003 work related injury?
2. If so, what injuries did she suffer as a result of her August 19, 2003 incident?
3. If the August 19, 2003 injuries are compensable, has she reached a medical end result for those injuries? Is she entitled to additional temporary total disability benefits and, if so, for what time periods?
4. If the August 19, 2003 injuries are compensable, what is the extent of the resulting permanent partial impairment?
5. Is Claimant permanently and totally disabled as a result of her work related injury or injuries?
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EXHIBITS:
Joint:
I: Medical records
II: Performance evaluations
III: School Records
Claimant:
1: Defense counsel’s December 13, 2005 letter
2: Claimant’s counsel’s December 27, 2004
Defendant:
A: Private Investigator Videotape
STIPULATION:
1. On March 10, 2003, Claimant was an employee of Defendant within the meaning of the Vermont Employer’s Liability and Workers’ Compensation Act (Act).
2. On March 10, 2003, Defendant was the employer of Claimant within the meaning of the Act.
3. On March 10, 2003, Claimant had one dependent within the meaning of the Act who turned twenty-one years old on November 19, 2004 at which time he was no longer dependent.
4. On March 10, 2003, Claimant had an average weekly wage of $482.31 resulting in an initial compensation rate of $321.54.
5. On March 10, 2003 Claimant suffered a work-related injury.
6. On August 19, 2003, Claimant fell at home. Defendant contests the compensability of this incident and any resulting injuries, but Claimant alleges that the fall was the direct result of her work-related March 10, 2003 injury.
7. On January 5, 2005, Defendant filed a Form 27 terminating Claimant’s indemnity benefits for her accepted work-related right knee injury, based on a determination of medical end result with 4% whole person impairment due to the accepted right knee claim.
8. On August 4, 2005, Claimant was separated from her employment at National Life.
9. To date, Claimant has received all indemnity and medical benefits associated with her right knee claim.
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CLAIM:
Claimant seeks additional medical, temporary total, permanent partial, vocational and permanent total disability benefits as a result of her work-related injury or injuries, and if successful, an award of attorney fees and costs.
OVERVIEW:
It is undisputed that Claimant suffered a work related fall in March of 2003, although the full extent of the injuries from that fall is contested. Six months later, Claimant fell again, but this time at home. Did the second fall result from the earlier, work-related fall? If so, what injuries did Claimant suffer? Is Claimant capable of regular, gainful employment? Several experts have rendered opinions on the sequelae of the falls. Because some of the opinions were obtained years after the two falls, when facts supporting the opinions differ from contemporaneous medical records, the earlier records will control.
FINDINGS OF FACT:
1. During the two-day hearing, Claimant was alert. She testified with no signs of anomia (difficulty finding words) and answered questions clearly and coherently. She exhibited no overt signs of lack of concentration or attention.
2. Before any of the events giving rise to this claim occurred, Claimant had worked running machinery at Rock of Ages for about twenty years and at National Life for about eighteen years.
3. Claimant was a responsible, reliable worker, missing time from work only for an occasional cold.
4. Claimant’s work for National Life was that of a full time set up person. She cleaned trucks, ran errands, checked the cleanliness of restrooms and ensured the proper set up of meetings. Claimant took pride in her work.
5. On March 10, 2003, Claimant fell when she was leaving work. She stubbed her toe and fell forward, landing on hands, knees and hitting her face.
6. At a doctor’s visit on April 29, 2003, Claimant reported to her primary care physician, Dr. Kristopher Jensen, that she had fallen three weeks earlier, injuring her right knee and that she had what the doctor described as “short lived loss of consciousness” at the time of the fall. Dr. Jensen noted no “obvious instability” when Claimant was walking. He also suggested that the persistent pain may have been due to her being on her feet most of the day at work.
7. In June 2003, Claimant telephoned Dr. Jensen’s office, reporting that she still had pain and intermittent swelling in her right knee.
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8. In mid June 2003, Claimant saw Dr. Stafford who noted increase in her knee pain after moving a lot of furniture at work.
9. On July 8, 2003, Claimant was seen again for knee pain and stiffness, which she reported was worse when she was working. On examination, the knee was tender but had “near full range of motion.”
10. On July 31, 2003, Claimant was seen by Charles Butterick, Physician Assistant at Green Mountain Orthopaedic Surgery, who noted a complaint of persistent knee pain. Mr. Butterick recommended physical therapy.
11. At physical therapy Claimant demonstrated weakness in her right leg. A program was set up with goals of increasing the strength and flexion in her right leg and decreasing the pain.
12. In June and June of 2003, Claimant had two instances when her right knee gave out, although she did not fall either time. The first was in the cafeteria in the National Life Building when she caught herself on the salad bar as the knee gave way. The second time was while she was cleaning a rest room, when she again caught herself and prevented a fall. Claimant recalled both instances in some detail at hearing.
13. On August 19, 2003, Claimant fell down her stairs at home. She then went to the emergency department at Copley Hospital where her complaints of left shoulder and back pain were noted. At that time, there was no evidence of head trauma.
14. Claimant fractured her left wrist in the fall at home, a diagnosis made the day of the fall. The fracture required surgery that Dr. Landvater performed on August 25, 2003. Sometime later, it was learned that she also fractured her left lower leg, the fibula.
15. On August 25, 2003, Dr. Landvater operated on Claimant’s fractured left wrist.
16. Also on August 25, 2003, the day of the left wrist surgery, Claimant saw Dr. Jensen who noted that Claimant broke her wrist in the fall and hit her head, although she had no loss of consciousness.
17. An October 21, 2003 physical therapy note documented Claimant’s description of having lost her balance when she fell down the steps at home.
18. In addition to surgery on the wrist, Claimant received medical care and physical therapy for her left wrist, leg and shoulder.
19. In November 2003, Dr. Landvater noted that Claimant was not yet to resume work.
20. In December 2003, Dr. Stephanie Landvater noted that Claimant was to return for treatment if she had continued “catching and buckling” in her left knee.
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21. On January 7, 2004, Dr. Landvater wrote that Claimant could only work four hours per day because of her work related right knee problem. Dr. Landvater reiterated that opinion on January 27th when she diagnosed a meniscal tear in Claimant’s right knee of a year’s duration.
22. In January 2004, Dr. Jensen also saw the Claimant, noting that she was alert and oriented, but making no mention of mental deficits.
23. Dr. Williams noted on a prescription pad dated January 19, 2004 that Claimant had work related fasciitis. He may have been unaware that Claimant had only been working half time for two weeks and not at all for several months before that.
24. On February 26, 2004, Claimant was in a motor vehicle accident (MVA). When she was examined a few days later, it was noted that she had a headache and some dizziness, although dizziness predated the MVA. It was also noted that she had an upper back strain.
25. By April 2004, Claimant’s headaches had resolved and she was back to work half time performing the same work she had been doing before the MVA.
26. On May 5, 2004, Dr. Landvater operated on Claimant’s right knee for what was determined to have been a work related meniscal tear from the fall in March 2003.
27. A July 16, 2004 Physical therapy note recorded Claimant’s comment that “I get dizzy since I started coming here.”
28. Dr. Landvater released Claimant to work at modified duty from August 4, 2004 to September 2, 2004, four hours a day.
29. On August 17, 2004, Claimant reported to a physical therapist that she was working four hours a day, limping a lot at work and “they don’t like it.”
30. On August 30, 2004, a therapist noted that Claimant’s pain behaviors were hindering her progress. She “declined” to perform some recommended activities. And she reported limping and being sore at work after moving some things. Yet, she also reported walking two hours at a fair the previous Sunday.
31. In September 2004, Claimant spent one day at work on the building inspection and inventory.
32. Claimant worked until August 2005 when her employment at National Life ended. During the time Claimant worked after her injury, she did less physical work, but was assigned to tasks that required more computer work. She was terminated because of her inability to perform physical functions necessary for her job, not because of any mental disabilities.
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33. Dr. Landvater placed Claimant at medical end result on November 2, 2004 with 4% whole person impairment for the injury to her right knee from the March 2003 fall at work.
34. At work, Claimant did not show any signs of problems with memory or concentration, even when she was on light duty part-time work in August of 2003.
35. Claimant had satisfactory performance evaluations at work from June 2004 through March 2005.
36. A private investigator videotape shows Claimant walking without a cane, even when it was snowing. Although slow while walking, Claimant was able to hold items in her arms and maintain her balance. She did not use a cane at the hearing, although she limped when walking.
37. One of Claimant’s activities is bingo, which she plays with eighteen cards.
Experts
38. Dr. Victor Gennaro is an orthopedic surgeon who evaluated this case for the Claimant. Based on his examination and history that Claimant’s knee was painful as she descended the stairs in August 2003, Dr. Gennaro opined that the original work related injury led to that fall. He based that opinion on the fact that she had an untreated meniscal tear in that knee at the time of the fall, a diagnosis well supported by Dr. Landvater’s records and surgical findings. However, Dr. Gennaro was not able to link the fasciitis to Claimant’s work.
39. Dr. Gennaro opined that Claimant is unable to return to gainful employment because of her cognitive difficulties, deconditioning and painful knees.
40. In March of 2006, Dr. Gennaro opined, and I find, that Claimant had not yet reached medical end result for her left shoulder and left knee, injuries she sustained when she fell down the stairs at home in August of 2003.
41. Dr. John Johansson, medical director of Vermont Center for Occupational Rehabilitation, performed an IME of the Claimant in 2004. At that time, she was working full eight hours days, with breaks as needed. Claimant provided a history to Dr. Johansson without any signs of anomia or memory problems. When he saw her again in 2005, when Claimant had been out of work with foot problems, he opined that she could return to work with good footwear.
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Functional Capacity Evaluations
42. Louise Lynch performed a functional capacity evaluation on Claimant in January 2006. Ms. Lynch understood that Claimant used a cane when she walked outside, a finding inconsistent with the videotape. After testing, Ms. Lynch concluded that Claimant had a part-time sedentary work capacity. She opined, based on Claimant’s physical limitations and her observations, that Claimant is not employable in the competitive work place.
43. Leslie Bell performed a functional capacity evaluation of the Claimant in April 2006. During that evaluation, Claimant self limited in 25% of the tasks, behavior that “influenced the outcome of the test.” Ms. Bell determined that Claimant had a sedentary work capacity for an eight-hour day based on that evaluation. Further, she opined that Claimant could navigate stairs only rarely, such as for entering a building, but should not have regular stare climbing throughout the day.
Vocational Rehabilitation Opinions
44. George Fotinopoulos, Vocational Rehabilitation (VR) Counselor, initially determined that Claimant was entitled to vocational rehabilitation services. By agreement of the parties, an extension was granted for the submission of a rehabilitation plan. Claimant now alleges that the carrier refused to pay for VR services. The carrier alleges that Mr. Fotinopoulos never followed up after the extension was granted. Regardless, Claimant never received VR services.
45. John May, Vocational Rehabilitation Counselor, performed a forensic vocational assessment in this case. He based his opinions on a private investigator videotape, functional capacity evaluations, Claimant’s vocational history, the medical records and his VR expertise. He concluded that Claimant would benefit from vocational rehabilitation services that would “enhance her employability.” He predicted that with such services, Claimant will return to gainful employment.
Expert Opinions
Head injury
46. Highly disputed is whether Claimant suffered a head injury in the fall down the stairs, and if so, whether such an injury, combined with other injuries, disables her. In support of her claim is the opinion from Dr. Solomon, based on neuropsychological examinations. Dr. Solomon is the director and founder of the Memory Clinic. He opined that Claimant meets the criteria for a traumatic brain injury (TBI) for both of her work related falls. That opinion is based on a comparison in what he determined was her pre injury IQ, school performance, and current testing. Based on cognitive deficits, he assessed her neuropsychological impairments at 25% whole person.
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47. Dr. Solomon’s opinion was based in part on an inaccurate history Claimant and her cousin gave him. For example, they described retrograde and posttraumatic amnesia that is recorded nowhere in the records. They also described a precise mechanism of the fall —falling backwards and hitting her head multiple times—that is described to Dr. Solomon for the first time in the several years since the accident.
48. Dr. Peyser, also a neuropsychologist with expertise working with patients who have had brain injuries, evaluated the Claimant for the defense. Based on the records and her expertise, Dr. Peyser found no record of posttraumatic amnesia, which is relevant to the issue of head injury. Retrograde amnesia is not relevant to the inquiry, in her opinion. Dr. Peyser, too, tested Claimant, finding no residual cognitive deficits from the falls. Claimant described cognitive losses to Dr. Peyser, yet those losses are not recorded in the records until September 2005. Claimant described difficulty finding words, yet did not demonstrate that difficulty during interview. Based on testing, Dr. Peyser attributed low or borderline results to low effort. Dr, Peyser concluded that, with the exception of Claimant’s self-reports, “there is no evidence …that Ms. Fisher suffered a head injury with significant cognitive deficits to interfere with her function on the job or in daily life.”
Attorney fees and costs
49. Claimant submitted evidence that her attorneys worked 170.3 hours on this claim and paralegals 5.8 hours. She incurred $6,629.78 in necessary costs, including $900 for Dr. Solomon’s record review and $1,000 for Dr. Gennaro’s two-hour preparation and one hour of deposition testimony.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1962). This Claimant must establish by sufficient credible evidence the character and extent of the injury, as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984).
2. Where the claimant’s injury is obscure and the layperson could have no well-grounded opinion as to its nature or extent, expert testimony is the sole means of laying a foundation for an award for both compensability issues as well as the extent of the award sought. Lapan v. Berno’s, Inc., 137 Vt. 393 (1979).
Causation of Second fall
3. Every natural consequence of a work related injury is also compensable. See Fleury v. Legion Ins., Opinion No. 43-02WC (2002) (citing 1 Larson’s Workers’ Compensation Law. § 10.00).
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4. Three factors convince me that it is more probable than not that the work related injury led to the fall at home. First, Claimant testified convincingly that her knee had given way twice before the fall at home. Second, at the time of the fall she had an untreated torn meniscus. Third, an orthopedic expert familiar with the signs and symptoms of a torn meniscus, Dr. Gennaro, attributed the fall to the untreated tear.
5. As a result of the second fall, Claimant injured her head, left wrist, shoulder, leg and her back.
6. Any head injury she may have sustained has since resolved without residual deficits, a conclusion well supported by Dr. Peyser’s opinion. Claimant’s work performance after that fall and her embellished history undercut the opinion proffered by Dr. Solomon to the contrary. Therefore, Claimant is not entitled to permanent partial disability benefits for a traumatic brain injury.
7. To prevail on her claim for permanent total disability (PTD), Claimant must prove that a work related injury or injuries caused impairments that render her unable to sustain regular gainful employment. Her age, experience, training, education, occupation and mental capacity are all factors relevant to a finding of PTD. 21 V.S.A. § 644(b). WC Rule 11.3100. One who is permanently and totally disabled must have no reasonable prospect of finding regular employment.” § 645.
8. When one is unable to return to work for which she has had previous training or experience, the worker is entitled to vocational rehabilitation services. 21 V.S.A. § 641(a).
9. Claimant has failed to prove that she is permanently and totally disabled. Although she may not have had the most successful academic record as a child, Claimant has proven herself a competent, affable and dedicated worker for her adult life. It is unfortunate that employment with National Life did not work out for her. It is also unfortunate that vocational rehabilitation services were not provided. However, she is capable of participating in vocational rehabilitation.
10. Therefore, Claimant is entitled to vocational rehabilitation benefits. She is also entitled to temporary total disability retroactive to their discontinuance until she reaches medical end result for the physical injuries incurred in the work related fall. Interest on those benefits must be calculated from the date those benefits were due until paid. 21 V.S.A. § 664.
11. Pursuant to 21 V.S.A. § 678(a) and WC Rule 10.000, a prevailing Claimant is entitled to a mandatory award of necessary costs and discretionary award of reasonable attorney fees when she prevails. Claimant submitted evidence that her attorneys worked 170.3 hours on this claim and paralegals 5.8 hours. She incurred $6,629.78 in necessary costs.
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12. The fees requested are awarded at $90 .00 per hour for attorney time under WC Rule 10.1210 and $60.00 per hour for paralegal time. C. C. v. Eveready Battery Co, Opinion No. 38-05 (2005). Although Claimant has not prevailed on the permanent total disability claim, she has proven that the second fall is compensable, a highly contested claim. She has prevailed on her claim for additional temporary total disability benefits. The hours her attorney worked to achieve this success were reasonable.
13. The costs associated with the unnecessary aspects of the claim, including Dr. Solomon’s fees, must be subtracted from the total cost request. In other respects, the costs were necessary to the successful aspects of the claim.
Summary
14. In sum, Claimant’s August 19, 2003 fall at home was a compensable result of her March 10, 2003 work related injury. As a result of that fall, Claimant suffered a head injury that has resolved as well as shoulder and leg injuries that have not yet reached medical end result. She is entitled to temporary total disability benefits until she reaches medical end result or successfully returns to work. 21 V.S.A. § 642; 643a. Claimant is not permanently and totally disabled as a result of her work related injury or injuries.
ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law, this claim for permanent total disability benefits is DENIED. However, Defendant is ORDERED to:
• Provide vocational rehabilitation benefits to Claimant;
• Pay TTD retroactive to the discontinuance with interest accruing from the date payment would have been made had the second fall been accepted until paid;
• Pay attorney fees and costs:
• Otherwise adjust the claim for the second fall, including payment of permanent partial disability benefits when Claimant reaches medical end result.
Dated at Montpelier, Vermont this 17th day of November 2006
________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

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

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

R. C. v. Consolidated Memorials, Inc. (January 2, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
R. C. Opinion No. 54-06WC
By: Margaret A. Mangan
v. Hearing Officer
Consolidated Memorials, Inc. For: Patricia Moulton Powden
Commissioner
State File No. W-03620
Hearing held in Montpelier on September 12, 2006
Record closed on October 17, 2006
APPEARANCES:
Heidi S. Groff Esq., for the Claimant
Joseph M. Lorman Esq., for the Defendant
ISSUES:
1. Did the Claimant sustain an April 2004 work injury that caused an infection, which led to the amputation of both legs above the ankles, resulting in permanent total disability?
2. Is the Claimant entitled to thirteen weeks of temporary total disability benefits?
3. If entitled to a workers’ compensation award, may the Claimant receive a lump sum payment of benefits?
EXHIBITS:
Joint Exhibit No. I: Medical Records on CD
Claimant’s 1: C.V. of Ernest Atlas, M.D.
Defendant’s A: C.V. of Philip Carling, M.D.
FINDINGS OF FACT:
1. The Claimant was an employee within the meaning of the Vermont Workers’ Compensation Act (Act) for all relevant periods.
2. The Defendant was an employer within the meaning of the Act for all relevant time periods.
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3. By April 2004, the Claimant was working roughly sixty hours per week as the General Manager of Consolidated Memorials.
4. As General Manager, the Claimant chipped granite with a chisel and handset, used a saw, drove trucks, placed orders for materials, and performed other similar tasks.
5. The Claimant wore gloves to perform these tasks only when it was cold.
6. The Claimant always had cuts on his hands and arms from working with sharp granite.
7. On April 5, 2004, the Claimant cut and scraped his hands and arms while chipping granite with a chisel and handset. Some of these injuries bled. The Claimant was familiar with the first aid kit and used antibiotic ointment and bandages.
8. On April 9, 2004, the Claimant was performing his duties as General Manager. While at work, the Claimant suddenly became nauseated and began vomiting.
9. Later that day, the Claimant’s wife came home to find the Claimant lying on the couch, shivering and wrapped in blankets. The Claimant was vomiting with chest pain and diarrhea.
10. That evening, the Claimant’s was treated at the Central Vermont Hospital’s Emergency room, where he was diagnosed with influenza and pulled chest muscles. Upon release, the Claimant was given medication and was instructed to return if his symptoms worsened.
11. The Claimant’s symptoms continued throughout the night and into the following morning.
12. On April 10, 2004, the Claimant continued to experience nausea, vomiting, diarrhea, and chest pain. Additionally, the abrasions on the Claimant’s hands and arms began to feel very itchy. The Claimant requested that his wife scratch these abrasions.
13. Upon scratching the Claimant’s hands and arms, the Claimant’s wife noticed that a cut on the Claimant’s right pinky finger had opened and was exuding puss. She treated this wound with peroxide, triple antibiotic ointment, and a band-aid. She also noticed other scratches and abrasions on the Claimant’s hands and arms.
14. At approximately 10 PM on April 10, 2004, the Claimant was admitted to the Central Vermont Hospital because of his worrisome and persistent symptoms.
15. In the early morning hours on April 11, 2004 the Claimant’s vital signs continued dropping. As a result, he was admitted to the Intensive Care Unit and given intravenous fluids.
16. The April 11, 2004 medical records show that the Claimant had multiple sores on his hands from work related trauma. These records also note that one of the sores “had a
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pustule that was I&D’d by the wife yesterday.” The records then state that the sores appeared to be healing with no active discharge.
17. A stool sample taken that day at the Central Vermont Hospital tested positive for a few colonies of Group A Streptococcus.
18. Later that morning, the Claimant’s condition continued to worsen until he was in a state of septic shock. At this time he was transported by helicopter to Dartmouth-Hitchcock Medical Center (DMHC).
19. The Claimant became comatose as a result of his severe illness.
20. Also on April 11, 2004, a DMHC CT scan found that the Claimant’s terminal ileum, cecum, and ascending colon were moderately thick-walled. The differential diagnosis of this condition included “typhilitis, Crohn’s disease, lymphoma, infectious etiology such as Giardia; ischemia less likely without supporting clinical evidence such as acidemia.”
21. On April 12, 2004, a paronychia, infection in the tissue surrounding the nail bed, on the Claimant’s right thumb tested positive for Group A Streptococcus.
22. By April 13, 2004, the Group A Streptococcus was found in the Claimant’s bloodstream and urine.
23. DHMC repeatedly tested the Claimant’s stool for the presence of white blood cells. These tests were all negative.
24. The doctors at DHMC found inflamed and necrotic tissue along the Claimant’s left chest wall.
25. As a result of complications from the septic shock, the Claimant’s lower extremities became gangrenous. This condition led to bilateral, below the knee amputations of the Claimant’s legs.
26. Beginning on April 12, 2004, the Claimant was out of work for a total of thirteen weeks as a result of this experience.
27. On July 12, 2004, the Claimant returned to work as a General Manager at Consolidated Memorials.
28. The Claimant is requesting TTD compensation for the recovery period from April 12, 2004 through July 11, 2004.
29. The Claimant is requesting attorney fees and costs. Claimant’s Counsel has a 25% Fee Agreement with the Claimant and an approved Attorney Lien. The Claimant has included an itemized list of litigation costs totaling $5,762.54.
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Medical Testimony
Ernest Atlas, M.D.
30. Dr. Atlas is an expert in infectious diseases and has been practicing for over thirty years. He regularly consults in infectious disease cases and has personally treated over a dozen cases involving Group A Streptococcus.
31. After reviewing the Claimant’s medical records, the Claimant’s wife’s deposition testimony, and interviewing the Claimant’s wife, Dr. Atlas opined that the Group A Streptococcus entered the Claimant’s body via the work related cuts and abrasions.
32. From there, Dr. Atlas believes that the bacteria spread through the Claimant’s bloodstream to the deep tissue of the left chest wall, where it produced a necrotizing fasciitis and septic shock. This condition caused blood clotting in the small vessels of the Claimant’s legs and gangrene. The septic shock also resulted in decreased blood flow and the need for vasoconstrictor medications. As a result of these factors, below the knee amputations of the Claimant’s legs were required.
33. Dr. Atlas explained that a superficial scratch or abrasion is likely to heal quickly once pus is exuded, even if this was the initial source of the Group A Streptococcus infection.
34. Dr. Atlas stated that the vast majority of Group A Streptococcus infections originate from breaks in the skin. He also stated that once this infection enters the bloodstream, the bacteria can circulate throughout the body.
35. While not impossible, in over thirty years of infectious disease practice Dr. Atlas had never seen, read about, or heard of Group A Streptococcus entering the body through the bowel.
36. Dr. Atlas opined that if this type of infection were to begin in the bowel then the stool would have had heavy growth of Group A Streptococcus and a high white blood cell count.
Philip C. Carling, M.D.
37. Dr. Carling has specialized in infectious disease medicine for over thirty years. However, he does not have first hand experience treating patients with Group A Streptococcus resulting in necrotizing fasciitis.
38. After reviewing the Claimant’s complete medical records, witness depositions, and medical reports, Dr. Carling opined that the work related scratches and abrasions were not the most likely source of the Group A Streptococcus.
39. Rather, Dr. Carling believed that the primary infection developed in the Claimant’s terminal ileum and ascending colon. This infection led to overwhelming streptococcal sepsis, organ failure, and the need for a bilateral leg amputation.
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40. Dr. Carling believed that the presence of a “few” colonies of Group A Strep showed that the bowel was the primary site of the infection.
41. Dr. Carling opined that the Claimant’s right thumb tested positive for Group A Streptococcus because the thumb came in contact with infected stool.
42. Dr. Carling agreed that gastrointestinal symptoms can be a result of the sepsis, no matter where the source of the infection is.
43. Dr. Carling could not recall any examples of cases, or any literature where Group A Streptococcus entered the body via the bowel.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1962). The claimant must establish by sufficient credible evidence the character and extent of the injury and disability as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984).
2. To qualify for workers’ compensation benefits, the personal injury must arise out of and in the course of employment. See 21 V.S.A. § 618 (a)(1).
3. In Vermont, a worker who is injured at work may collect temporary disability benefits depending upon his actual capacity to work during the period that he is healing, until such time as he or she reaches maximum medical improvement. Hepburn v. Concrete Professionals, Inc./Traveler’s Insurance Co., Opinion No. 16-03WC (2003).; 21 V.S.A § 642.
4. A Claimant is entitled to temporary total disability benefits under 21 V.S.A. § 642, while either: (1) in the healing period and not yet at a maximum medical improvement, Orvis v. Hutchins, 123 Vt. 18 (1962), or (2) unable as a result of the injury either to resume the former occupation or to procure remunerative employment at a different occupation suited to the impaired capacity. Roller v. Warren, 98 Vt. 514 (1925); Votra v. Mack Molding, Inc. Opinion No. 44-02WC (2002).
5. Under 21 V.S.A. § 644(a)(2), a Claimant is entitled to at least 330 weeks of permanent total disability if the work related injury causes the loss of both feet at or above the ankle.
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6. There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the inference from the facts proved must be the more probable hypothesis. Burton Holden & Martin Lumber Co., 112 Vt. 17 1941. Where the causal connection between an accident and an injury is obscure, and a layperson would have no well-grounded opinion as to causation, expert medical testimony is necessary. J.G. v. Eden Park Nursing Home, Opinion No. 52-05WC (2005) (citing Lapan v. Berno’s Inc., 137 Vt. 393 (1979)).
7. When qualified medical expert opinions are in conflict, this Department has traditionally examined the following criteria: 1) the length of time the physician has provided care to the claimant; 2) the physician’s qualifications, including the degree of professional training and experience; 3) the objective support for the opinion; and 4) the comprehensiveness of the respective examinations, including whether the expert had all the relevant records. J.C. v. Richburg Builders. Opinion No. 37-06WC (2006). (citing Miller v. Cornwall Orchards, Opinion No. 20-97WC (1997); Gardner v. Grand Union, Opinion No. 24-97WC (1997)).
8. The medical experts in this case were both highly qualified infectious disease experts. Neither physician provided treatment to the Claimant. Rather, both doctors relied on the Claimant’s medical records, depositions, and their own extensive training and experience when rendering their expert medical opinions. As a result, the fact that Dr. Atlas has personal experience in treating patients with similar Group A Streptococcal infections lends greater weight to his opinion.
9. Dr. Atlas testified that Group A Streptococcal bacteria most often enters the body via a break in the skin. The Claimant had multiple work related cuts and abrasions on his arms and hands at the onset of his illness. The Claimant’s medical records document signs of infection on two of these wounds, one testing positive for the infectious bacterium.
10. By contrast, neither expert could recall any case they had ever worked on, read about, or even heard of where the bowel was the point of origin for a Group A Strep infection. Furthermore, while a CT scan showed moderate thickening of the bowel wall, none of the DMHC physicians connected this finding with the Claimant’s sepsis or took further action.
11. Furthermore, Dr. Atlas stated that if the bowel were the primary infection site then the Claimant’s stool would have been teeming with white blood cells and bacterial colonies. Instead, white blood cells were absent each time the Claimant’s stool was tested. Rather than finding a heavy concentration of bacterial colonies, the stool contained only a few colonies that were likely deposited via the Claimant’s bloodstream.
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12. Hence, the April 2004 work related injuries sustained by the Claimant caused the above infection and complications leading to a bilateral leg amputation. This is a scheduled injury under 21 V.S.A. § 644(a)(2); therefore, the Claimant is entitled to at least 330 weeks of permanent total disability.
13. Furthermore, from April 12, 2004 through July 11, 2004, the Claimant was recovering from complications resulting from his work related injury, unable to work and had not yet reached medical end result. As such, the Claimant is also entitled to TTD benefits for this thirteen-week period.
14. Based on 21 V.S.A. § 678(a) and Rule 10, Claimant is awarded Attorney fees of 20% of the total award or $9,000, whichever is less.
Lump Sum Payment
15. In 2000, the legislature amended 21 V.S.A. § 652(b) to permit a Claimant to request an award payment in one lump sum. Sanz v. Douglas Collins Const., ¶ 6, 2006 Vt. 102. The Commissioner will grant this request if it is in the best interest of the Claimant or his family. Id.
16. The Department considers the following factors when determining whether a lump sum payment is in the best interest of a claimant. The claimant and/or the claimant’s household receives a regular source of income aside from any workers’ compensation benefit, the lump sum payment is intended to hasten or improve claimant’s prospects of returning to gainful employment or the lump sum payment is intended to hasten or improve claimant’s recovery or rehabilitation; the claimant presents other evidence that the lump sum award is in their best interests. Patch v. H.P. Cummings Const., Opinion No. 49-02WC (2002); Rule 19.5000.
17. A lump sum payment will not be awarded if: the award was based upon a hearing decision for which an appeal has been filed and the employer or insurer objects to the payment of the lump sum; or the claimant is best served by receipt of periodic income benefits; or the payment is intended to pay everyday living expenses; or the lump sum payment is intended to pay past debts. Id.
18. In the present case, this Claimant has returned to work, earning regular income outside of any workers’ compensation award. Therefore, the Claimant need not rely on the periodic payment of benefits for everyday expenses. As such, the Department recognizes that a lump sum award is in the best interest of this Claimant.
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ORDER:
THEREFORE, based on the above Findings of Fact and Conclusions of Law, the Claimant’s claim is compensible and the Defendant is ORDERED to pay:
1. Related Medical Benefits;
2. TTD benefits from April 12, 2004 through July 11, 2004;
3. A lump sum payment of PTD, pursuant to 21 V.S.A. § 644(a)(2), for at least 330 weeks;
4. Statutory interest from the date the ordered benefits should have been paid had this case been accepted, pursuant to 21 V.S.A. §664;
5. Attorney fees of 20% of the total award or $9,000, whichever is less.
Dated at Montpelier, Vermont this ____ day of December 2006.
___________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

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

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

M. D. v. DEW Construction (August 20, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
M. D. Opinion No. 24-07WC
By: Jane Dimotsis, Hearing Officer
v. Renee Mobbs, Law Clerk
DEW Construction For: Patricia Moulton Powden
Commissioner
State File No. X-06341
OPINION AND ORDER
Hearing held in Montpelier on June 25, 2007.
Record closed on July 13, 2007.
APPEARANCES:
Claimant, pro se
William Blake, Esq., for Defendant
ISSUES:
1. Whether Defendant must pay Claimant temporary total disability benefits from the time Claimant was laid off by a subsequent employer to the time Claimant resumed employment with a third employer.
2. Whether Claimant is entitled to Vocational Rehabilitation.
EXHIBITS:
Claimant’s Exhibits
Claimant’s Exhibit 1: 4/26/07– 5/16/07 Medical records from Dr. Macy and Lee Morse, PT
Claimant’s Exhibit 2: 2/19/07 Functional Capacity Evaluation by Joe Barry, OT
Claimant’s Exhibit 3: 5/18/07 IME Letter and Evaluation Questionnaire from Dr. Davignon
Defendant’s Exhibits
Defendant’s Exhibit 1: 7/06 DEW Newsletter
Defendant’s Exhibit 2: 1/11/07 Email from Claimant to Specialist Biron
Defendant’s Exhibit 3: 9/12/06 Transcription of phone call between Claimant and Peter Wells
Defendant’s Exhibit 4: 9/12/06 Transcription of phone call between Claimant and Peter Wells
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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.

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

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

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

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.

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

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

Josef Knoff v. Josef Knoff Illuminating (October 15, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Josef Knoff Opinion No. 25-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Josef Knoff Illuminating
For: Anne M. Noonan
Commissioner
State File No. P-16619
OPINION AND ORDER
Hearing held in Montpelier on August 17, 2012
Record closed on September 19, 2012
APPEARANCES:
Josef Knoff, pro se
William Blake, Esq., for Defendant
ISSUES PRESENTED:
1. Are Claimant’s current complaints causally related to his February 2000 compensable work injury?
2. If yes, is Claimant entitled to reinstatement of temporary total disability benefits retroactive to December 17, 2010?
3. If yes, what is the appropriate average weekly wage and compensation rate at which such benefits should be paid?
4. Is Claimant’s claim for mileage reimbursement for treatment-related travel barred in whole or in part by the applicable statute of limitations?
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EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Medical statement in support of Social Security Disability, June 15, 2005
Claimant’s Exhibit 2: Physical therapy progress notes, 5/4/11-6/6/11
Defendant’s Exhibit A: Exhibit 2 to Claimant’s deposition, April 20, 2005
Defendant’s Exhibit C: Curriculum vitae, Fran Plaisted, M.A.
Defendant’s Exhibit D: Vocational Assessment of Earning Capacity, June 4, 2012
Defendant’s Exhibit E: Wage records, 5/21/10-12/17/10
Defendant’s Exhibit F: Curriculum vitae, Verne Backus, M.D., M.P.H.
CLAIM:
Temporary total disability benefits retroactive to December 17, 2010 pursuant to 21 V.S.A. §642
Mileage reimbursement pursuant to Workers’ Compensation Rule 12.2100
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim. Judicial notice also is taken of the commissioner’s previous decisions in J.K. v. Joe Knoff Illuminating, Opinion No. 39-05WC (July 12, 2005), J.K. v. Joe Knoff Illuminating, Opinion No. 28-06WC (July 7, 2006), and Josef Knoff v. Josef Knoff Illuminating, Opinion No. 13-11WC (June 2, 2011), and of the Vermont Supreme Court’s entry order in Josef Knoff v. Josef Knoff Illuminating, Supreme Court Docket No. 2011-239 (December Term 2011).
3. Claimant was the self-employed owner and manager of Defendant’s business for fifteen years prior to February 2000. Operating under the trade name Illuminating Consulting Service and Supply, the business marketed, designed and installed energy efficient lighting systems in commercial, industrial and institutional settings. It was a successful enterprise that generated significant annual revenues.
4. Claimant was in all respects a hands-on owner. He worked both in the office and in the field. The latter duties were physically challenging, often requiring sustained overhead work on ladders or high staging with his neck in a hyper-extended position.
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Claimant’s 2000 Injury and Subsequent Medical Treatment
5. On February 1, 2000 Claimant was finishing up an installation at a large health care facility in New Hampshire when he suffered the onset of severe neck pain. Diagnostic imaging studies revealed degenerative disc disease at C4-5 and C5-6, a right-sided disc herniation at C5-6 and a small left-sided herniation at C6-7. These findings correlated with Claimant’s symptoms, which included pain, stiffness and reduced range of motion in his neck, as well as pain and paresthesias in his arms bilaterally.
6. Defendant accepted Claimant’s injury as compensable and began paying workers’ compensation benefits accordingly.
7. Claimant treated his symptoms conservatively, with passive physical therapy modalities and anti-inflammatories. As early as June 2000 his consulting neurosurgeon, Dr. Penar, determined that he was an appropriate candidate for surgical disc excision and fusion at the C5-6 level. Some months later, in December 2000 Dr. Wepsic, another consulting neurosurgeon, also recommended surgery, to include decompressing the nerve roots at both C5-6 and C6-7.
8. Claimant chose not to pursue either of these surgical treatment options. Instead, from November 2000 through January 2001 he underwent a multidisciplinary functional restoration program overseen by Dr. Johansson, an osteopath. Dr. Johansson diagnosed Claimant with cervical disc syndrome and myofascial pain. The program he recommended to address these conditions encompassed both physical and psychological components, and included treatments specifically directed at behavioral medicine and pain management.
9. Claimant successfully completed Dr. Johansson’s program. Although his pain was not completely eliminated, his range of motion improved and he reported that he was better able to control and manage his symptoms than he had been previously.
10. In February 2001 Dr. Johansson determined that Claimant had reached an end medical result. Noting both clinical findings and diagnostic imaging studies indicative of a C5-6 disc herniation with radiculopathy, he rated Claimant with a 15 percent whole person permanent impairment referable to his compensable cervical injury. The Department approved the parties’ subsequent agreement to pay permanency benefits in accordance with this rating.
11. As for functional restrictions, Dr. Johansson determined that Claimant had a light to medium work capacity and was capable of full-time sedentary work. He endorsed Claimant’s plan to return to work in a computer-oriented office setting, so long as his work station was ergonomically designed and he was able to take frequent stretch breaks.
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Medical Treatment from 2003 through 2006
12. As expected with a cervical disc injury such as Claimant’s, even after reaching an end medical result he continued to experience periods of waxing and waning symptoms. He did not seek additional focused treatment, however, until May 2003. By that time, his symptoms had worsened to such an extent that they interfered significantly with his functional abilities.
13. In March and April 2005 Claimant participated again in a functional restoration program supervised by Dr. Johansson. When his symptoms failed to improve, Dr. Johansson recommended another surgical consult.
14. In July 2005 Claimant underwent an evaluation with Dr. Phillips, a neurosurgeon. When compared with the MRI taken shortly after his 2000 injury, a new MRI study revealed that the disc herniation previously noted at C5-6 had resolved, but that bone spurs both at that level and at C6-7 had worsened. Given the correlation between these findings and Claimant’s worsening symptoms, Dr. Phillips recommended surgery at the C7 level.
15. Defendant disputed its responsibility for Dr. Phillips’ proposed surgery on the grounds that it was not causally related to Claimant’s compensable injury. As medical support for its position, Defendant offered the opinion of Dr. Levy, a neurologist. According to Dr. Levy’s analysis, Claimant’s ongoing symptoms were due solely to the natural progression of degenerative disc disease, and were not work related at all.
16. Dr. Phillips disagreed with this analysis. According to his theory of causation, Claimant’s work activities in February 2000 had precipitated the left-sided disc herniation at C6-7. The bone spurs that subsequently developed at that level represented the body’s natural attempt to prohibit movement and achieve some stability in the area. In that sense, the extent of disc degeneration at C6-7 came about as a direct consequence of the work injury.
17. Following a formal hearing, in a decision dated July 7, 2006 the commissioner rejected Dr. Levy’s causation analysis and accepted Dr. Phillips’ opinion instead.1 As a consequence, Defendant was ordered to pay the medical and rehabilitation costs associated with the C7 surgery that Dr. Phillips had recommended.
18. Ironically, after having prevailed on his claim that Dr. Phillips’ proposed surgery was causally related to his work injury, Claimant again decided against that treatment option. His symptoms had improved somewhat, and while they still limited his activity he no longer viewed surgery as inevitable. Instead he opted to take a “wait and see” approach, in the hopes that over time his symptoms might abate even more.
1 J.K. v. Joe Knoff Illuminating, Opinion No. 28-06WC (July 7, 2006).
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19. Between October 2006 and December 2010 Claimant continued to experience ongoing neck pain and radicular symptoms that significantly limited his activity level. Aside from routine exercises and anti-inflammatories, however, he did not actively treat for his cervical condition.
Medical Treatment since 2010
20. On December 17, 2010 Claimant reported to Dr. Manchester, his primary care physician, that his neck pain and radicular symptoms had worsened. There followed a series of therapies, specialist consults and diagnostic evaluations aimed at addressing this latest downturn. These included:
• Evaluations in early 2011 with Dr. Barnum, an orthopedic surgeon, who concluded that a C5-6 and C6-7 discectomy and fusion likely would alleviate Claimant’s symptoms and improve his function;
• MRI studies in March and October 2011, which showed herniated discs at both C5-6 and C6-7, with further calcification at those levels and progression of degenerative disease at the adjacent levels as well;
• Electrodiagnostic studies in April 2011, which documented chronic left C7 radiculopathy but no new radicular deficits;
• An unsuccessful course of physical therapy from April through May 2011;
• An October 2011 evaluation with Dr. Bono, another orthopedic surgeon, who concluded that notwithstanding his MRI findings Claimant likely would not benefit from surgery, and would best be helped by a more structured, physiatrist-directed trial of non-operative care; and
• A December 2011 evaluation with Dr. Flimlin, a physiatrist, followed by a referral to Dr. Naylor, a psychiatrist and specialist in chronic pain management.
21. From mid-April through mid-June 2012 Claimant participated in an 11-week pain management program offered by Dr. Naylor’s Mind-Body Clinic. The focus of this program is to teach copings skills for managing chronic pain through cognitive restructuring, relaxation training, visual imagery, education and group discussion. I find it likely that Claimant previously learned at least some of these skills in the context of Dr. Johansson’s November 2000 multidisciplinary rehabilitation program.
22. In conjunction with the Mind-Body Clinic program, Dr. Naylor also suggested that Claimant participate in a “physician-managed graded exercise program” to help him improve his overall physical conditioning. She recommended that he re-enroll in Dr. Johansson’s functional restoration program for this purpose.
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23. At the time of the formal hearing, Claimant had completed Dr. Naylor’s Mind-Body Clinic program, and was two-thirds of the way through Dr. Johansson’s program. I find from Claimant’s own testimony that the benefits he has reaped from these programs are essentially the same as those he reported the first time he underwent multidisciplinary rehabilitation, namely, an improved ability to manage and control his chronic pain symptoms and somewhat increased cervical range of motion. His radicular symptoms remain unchanged.
Claimant’s Vocational Rehabilitation Efforts and Subsequent Employment Efforts
24. Claimant’s functional restrictions following his February 2000 injury precluded him from returning to his pre-injury job. He subsequently was found entitled to vocational rehabilitation services, and a counselor was assigned to assist him in formulating an appropriate return to work plan. As Claimant had been a very high wage earner, the particular vocational rehabilitation challenge he faced was to identify a path to re-employment that would approximate his pre-injury wages, which averaged almost $3,800.00 per week.
25. After some research, Claimant and his counselor determined that the two avenues most likely to lead to suitable re-employment were either to enroll in a master’s level college program or to undertake another self-employed business venture. Claimant was concerned that pursuing a master’s degree would take several years, and in the meantime it would be difficult for him to support his family financially. For that reason, and also considering his successful track record as the owner and manager of Defendant’s business, he favored the second option.
26. Claimant’s vocational rehabilitation counselor estimated the cost of a master’s level degree program to be in the $15,000-$20,000 range at the University of Vermont, and in the $30,000-$50,000 range elsewhere.
27. After much research, Claimant developed a self-employment business plan that he estimated would generate personal income at or near his pre-injury wages within three years. The plan involved designing and developing a website to market natural foods, personal care products and other “environmentally friendly” goods directly to consumers. Claimant estimated the start-up costs to adequately finance this e-commerce venture at approximately $200,000. According to his business plan, most of these monies ($170,000) would be used to outsource custom website development and on-line marketing to a company with experience in hosting natural products websites.
28. Claimant’s vocational rehabilitation counselor supported his self-employment plan, despite the potential risks associated with any such venture. However, Defendant refused to sign off on the proposal, for reasons that are not clear from the record. Thereafter, Defendant agreed to pay $100,000 in return for a full and final settlement of its obligation to provide further vocational rehabilitation services. Claimant accepted this offer, and in May 2001 the Department approved the settlement.
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29. Notwithstanding that the vocational rehabilitation settlement left his business plan 50 percent underfunded, Claimant opted to proceed anyway. Subsequent decisions placed the start-up in an even more precarious financial position. First, Claimant diverted a sizeable portion of the settlement monies to personal expenses, including his child’s college tuition, his mortgage and car payments. Later, he lost some funds to what he described as a “well-orchestrated scam.” Claimant was able to raise some capital on his own, including a $25,000-$30,000 investment from his primary care physician, Dr. Manchester. He also modified his business plan on the expense side, by identifying less costly ways to market and deliver the products he intended to distribute.
30. Despite his best efforts, Claimant’s e-commerce business never approached the level of success he had envisioned for it. After years in development, the website was operational for a brief period of time in 2005-2006, but made only minimal sales. By 2007 it was defunct.
31. Claimant attributed at least part of the business’ demise to his inability, as a result of his neck pain and radicular symptoms, to spend as much of his own time working on the project as he originally had anticipated. His business plan called for him to devote ten to twelve hours daily on the venture, but as time went on he was able to spend only one or two hours per day on it. Claimant asserted that had he been able to work more closely on designing and fine tuning the website, his outsourcing expenses would have been lower, with the result that it would have been easier for the business to become profitable.
32. Claimant’s assertion is belied by his own business plan, however. As noted above, Finding of Fact No. 27 supra, from the beginning the outsourcing expenses anticipated in that plan were substantial. They accounted for 85 percent of Claimant’s original funding request, and perhaps more importantly, they exceeded the start-up monies he actually received by 70 percent, see Finding of Fact No. 28 supra. With those facts in mind, I find it likely that Claimant’s e-commerce venture failed not because he was physically unable to devote sufficient time to it, but rather because for the duration of its existence it was significantly undercapitalized.
33. Between 2006 and 2009 Claimant neither sought nor engaged in remunerative employment. In 2005 he applied for and was granted social security disability benefits, retroactive to April 2003. In 2009 he passed the licensing exam to become an automobile damage appraiser, but soon realized that the work was too challenging physically for him to sustain.
34. In early 2010 Claimant began working as a substitute teacher for the Enosburgh Town School District, where he resides. His wife had worked as a substitute teacher in the same school district, and within a year had been offered full-time employment. Claimant hoped his employment would progress similarly. He expected that teaching would accommodate his physical restrictions well in terms of maintaining his neck in a neutral posture and being able to move around as necessary.
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35. Claimant was paid on a per diem basis for his substitute teaching assignments, at the initial rate of $70.00 per day. Notwithstanding Defendant’s assertion to the contrary, it is clear from the paystubs admitted into evidence that payroll taxes, including both FICA and Medicare, were deducted. In addition, Claimant testified that the school district issued him a W-2 earnings statement covering these wages at the end of the year, an assertion I have no reason to doubt. Considering this evidence, I find that Claimant was at all relevant times a school district employee, not an independent contractor.2
36. Claimant’s paystubs document substitute teacher earnings from April 19, 2010 through May 27, 2010, a total of $280.00 in gross wages for four full-time equivalent days. During the ensuing school summer vacation, from July 9, 2010 through September 16, 2010 Claimant worked as a security guard at a summer camping area. For the most part, his duties involved canvassing the property in a golf cart, for which he was paid at the rate of $8.25 hourly. Claimant’s gross wages in this employment totaled $1,023.00. Thereafter, Claimant returned to substitute teaching assignments for the Enosburgh Town School District, this time at a per diem rate of $80.00 per day. From September 8, 2010 through December 9, 2010 he earned a total of $1,080.00 in gross wages for 13.5 full-time equivalent days.
37. Claimant has not worked since December 9, 2010. As noted above, Finding of Fact No. 20 supra, on December 17, 2010 he resumed treatment for his neck pain and radicular symptoms with Dr. Manchester, who determined that he was totally disabled from working.
38. Claimant has been minimally active in the years since Dr. Manchester took him out of work. He testified that on a typical day, he drives his wife to work, returns home, feeds the dog, eats breakfast, spends 30 to 45 minutes on the computer, and then naps for one to two hours. He estimated that he might spend another 30 to 45 minutes on the computer in the afternoon before driving to pick up his wife. Occasionally he attends his daughter’s sporting events. He sleeps approximately six hours nightly, but wakes up frequently in pain.
39. While I do not doubt that Claimant is minimally active physically, I find that he likely has underestimated the amount of time he spends at his computer. Considering just the manner in which he has represented himself through the various legal proceedings associated with his workers’ compensation claim, which have encompassed three formal hearing decisions and one Supreme Court appeal in addition to the pending dispute, it is apparent that he is able to focus on complex issues, compose legal memoranda and respond promptly and at length to emails and other correspondence. These activities are at odds with a person who is unable to work at a computer for more than one and a half hours daily.
2 Given what I presume to be the nature of the school district’s business, which is the true test of employee status, see In re Chatham Woods Holdings, LLC, 2008 VT 70 ¶10 (May 16, 2008), it is unlikely that I would have classified Claimant as an independent contractor even had the school district not withheld his payroll taxes appropriately.
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Expert Opinions
40. The parties each presented expert evidence as to (a) the causal relationship between Claimant’s current cervical complaints and his compensable February 2000 work injury; (b) whether his treatment since December 2010 has been curative or palliative; and (c) to what extent, if any, he has been capable of working since that time. In addition, Defendant presented expert testimony as to the impact that Claimant’s past vocational choices has had on his current earning capacity.
(a) Causal Relationship
41. As to the causal relationship between Claimant’s current cervical condition and his February 2000 injury, the expert opinions that each party offered were essentially the same as those presented in the context of Claimant’s 2006 formal hearing, see Finding of Fact Nos. 15-17 supra. Briefly, Claimant’s primary care provider, Dr. Manchester, concurred with Dr. Phillips’ causation analysis – that the February 2000 work injury precipitated a left-sided disc herniation at C6-7, which in turn accelerated the growth of bone spurs and degenerative disease at adjacent levels as well. Thus, according to Dr. Manchester the same work-related injury process that accounted for Claimant’s worsening symptoms and need for treatment in 2003 likewise accounts for his current symptoms and need for treatment.
42. In contrast, Defendant’s expert, Dr. Backus, acknowledged that his causation opinion was in many respects the same as that offered by Dr. Levy in 2003 – that Claimant’s worsening symptoms, both in 2003 and in 2010, were not causally related to his work injury in any respect, but rather represented the natural progression of degenerative disc disease in his cervical spine. That disease process probably had already begun as of the time of Claimant’s February 2000 work injury. According to Dr. Backus’ analysis, while the injury likely resulted in a soft tissue strain and inflammatory response in the area, it did not cause or accelerate any changes to the underlying structures themselves. Thus, in his opinion, at least by 2003 and certainly by 2010 any worsening symptoms were likely due solely to the ongoing progression of the disc disease itself.
(b) Curative versus Palliative Treatment
43. Claimant offered expert opinion evidence from Drs. Manchester, Bono, Naylor and Johansson to the effect that the treatments he has undergone since December 2010 have been curative rather than palliative in nature. In particular, according to these providers, both Dr. Naylor’s Mind-Body Clinic program and Dr. Johansson’s functional restoration program offer treatments that are reasonably likely to result in significant further improvement in his ability to manage his symptoms and return to the level of function he enjoyed previously.
44. Upon careful review, I find that none of Claimant’s providers have adequately explained why the specific treatments Drs. Naylor and Johansson have offered recently are likely to result in lasting improvement when what appear to be very similar programs failed to do so in the past. For that reason, I find the objective support for their opinions lacking.
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45. Dr. Backus acknowledged that Dr. Naylor’s program represented a reasonable treatment, one that likely would increase Claimant’s ability to manage his chronic pain independently. He also supported as reasonable Claimant’s participation in a limited graded exercise program supervised by Dr. Johansson, as a means of guiding him back to an effective home exercise regimen. According to Dr. Backus, however, because Claimant suffers from a chronic, progressively deteriorating condition, neither of these programs is curative; the most either can offer is palliative symptom relief. I accept this reasoning as persuasive.
(c) Claimant’s Work Capacity Since December 2010
46. As noted above, Finding of Fact No. 11 supra, upon completing Dr. Johansson’s functional restoration program in 2001 Claimant had a light to medium work capacity and was capable of full-time sedentary work in a computer-oriented office setting.
47. The medical statement that Dr. Manchester filed in conjunction with Claimant’s 2005 application for social security disability benefits described a far more limited work capacity. As of June 2005 Dr. Manchester estimated that Claimant could neither sit nor stand for more than two hours daily, and was incapable of full-time employment.
48. Notwithstanding this assessment, Claimant was able to resume at least part-time employment in 2010. Although his work as a substitute teacher was sporadic, when he was called in he was able to complete a full day. Similarly, Claimant demonstrated the ability to work regular part-time hours at his summer security guard job. Claimant did not present any credible evidence establishing that prior to December 17, 2010 his inability to work more hours at either job was due to any injury-related disability. It is equally possible that his hours were limited simply because his employers had no more to offer.
49. As noted above, Finding of Fact No. 37 supra, when Claimant’s symptoms worsened in December 2010 Dr. Manchester determined that he was totally disabled from working, an opinion he reiterated shortly before the formal hearing.
50. The evidence does not reveal the specific basis for Dr. Manchester’s opinion as to Claimant’s work capacity, either in 2005, 2010 or currently. It is largely at odds with the capacity he himself demonstrated in the months prior to December 2010. Claimant has not undergone any formal functional capacity testing since completing Dr. Johansson’s program in 2001, more than ten years ago. Lacking objective data as support, I must question Dr. Manchester’s conclusions.
51. Based both on his January 2012 independent medical examination and on Claimant’s description of his daily living activities, Dr. Backus determined that he is capable of sustaining full-time sedentary to light work. As with Dr. Manchester’s opinion, I would have more confidence in Dr. Backus’ conclusions were they supported by formal functional capacity testing. Nevertheless, based both on Dr. Backus’ analysis and on my own observations of Claimant as a pro se litigant, I find it likely that he currently has at least a part-time sedentary work capacity.
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(d) Claimant’s Earning Capacity
52. Fran Plaisted, a certified vocational rehabilitation counselor, offered her expert opinion as to Claimant’s earning capacity in the years since his February 2000 work injury. Ms. Plaisted is a fellow of the American Board of Vocational Experts. In formulating her opinion, she interviewed Claimant and reviewed his medical and vocational history.
53. Ms. Plaisted’s analysis focused primarily on what Claimant’s vocational rehabilitation options might have been had he not chosen to pursue self-employment. Generally, she explored two alternative paths – one using his existing skills, training and experience, the other assuming some level of academic retraining. In both instances, she assumed a full-time sedentary to light work capacity, in accordance with Dr. Backus’ opinion.
54. In Ms. Plaisted’s opinion, as a successful business owner for more than 15 years prior to his injury, Claimant has extensive experience in sales and management. These transferable skills qualify him for employment as a sales representative or manager, with an average annual salary in northern Vermont in the $55,000 to $75,000 range.
55. Alternatively, Claimant could have combined his undergraduate focus on engineering with his extensive experience in electrical installation to seek either a bachelor’s or master’s degree in electrical engineering. The costs associated with this plan would have been largely covered by the $100,000 vocational rehabilitation settlement he received, and would have yielded a current earning capacity ranging from $71,000 to $95,000 annually.
56. With these vocational alternatives in mind, Ms. Plaisted concluded that neither of the jobs Claimant held in 2010 accurately reflected his actual earning capacity. Notwithstanding his injury-related physical limitations, in her opinion Claimant was underemployed as both a substitute teacher and as a summer security guard. Even assuming that Claimant might be capable of only part-time as opposed to full-time sedentary work, I find this analysis credible.
Mileage Reimbursement
57. By letter dated January 12, 2012 Claimant provided a detailed accounting of his claim for mileage reimbursement to both the Department and to Defendant. For travel to and from doctor’s appointments and in accordance with Workers’ Compensation Rule 12.2100, Claimant claimed a total of $464.92 in mileage charges incurred between March and September 2005, a total of $159.76 in charges incurred between August 29, 2006 and October 17, 2006, and a total of $402.14 in charges incurred from December 17, 2010 through December 14, 2011.
58. Defendant has objected to the 2005 and 2006 charges on the grounds that they are barred by the applicable statute of limitations.
CONCLUSIONS OF LAW:
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1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
Causal Relationship
2. The first disputed issue in this claim is whether Claimant’s cervical symptoms and need for treatment since December 2010 are causally related to his compensable February 2000 work injury. This is a medical question, upon which the parties presented conflicting expert opinions. In such situations, the commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
3. I conclude here that Dr. Manchester’s opinion as to the causal relationship between Claimant’s original injury and the ongoing disc degeneration in his cervical spine is more credible than Dr. Backus’. As his primary care provider for many years, Dr. Manchester has been well positioned to observe the progression of Claimant’s cervical condition over time. His causation theory – that the work injury caused a C6-7 disc herniation, which in turn accelerated the growth of bone spurs and degeneration at adjacent levels – is essentially the same one that Dr. Phillips previously espoused as the explanation for Claimant’s worsening symptoms in 2003. For the same reasons that led the commissioner to accept Dr. Phillips’ analysis as objectively supported and credible in 2006, I accept Dr. Manchester’s opinion as persuasive here.
4. Had Dr. Backus propounded a causation theory that effectively distinguished Claimant’s current condition without denying either the injury Defendant accepted in 2001 or the one the commissioner found compensable in 2006, I might view his opinion more favorably. Instead, his analysis relies at its core on the assumption that Claimant’s February 2000 work injury was a soft tissue strain that neither caused nor accelerated any disc herniation or disease. This assumption is at odds with Defendant’s own conduct dating back at least to 2001, when it paid permanency benefits for what Dr. Johansson diagnosed as a work-related cervical disc herniation. It also is at odds with the commissioner’s determination in 2006 that the work injury had accelerated Claimant’s degenerative disc disease. The time has long since passed for Defendant to proffer an entirely new explanation for what is now a twelve-year-old injury. See, e.g., Coronis v. Granger Northern, Inc., Opinion No. 16-10WC (April 27, 2010). For that reason, I reject Dr. Backus’ opinion as unpersuasive.
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5. I conclude that Claimant has sustained his burden of proving that, as was the case in 2003, his worsened cervical condition in 2010 was caused or accelerated at least in part by his February 2000 work injury and is therefore compensable.
Temporary Total Disability
6. Having concluded that Claimant’s worsened cervical symptoms since December 17, 2010 are causally related to his original injury, I next consider his claim for temporary total disability benefits.
7. Temporary disability benefits are only payable for so long as the medical recovery process is ongoing. Bishop v. Town of Barre, 140 Vt. 564, 571 (1982). Once an injured worker reaches an end medical result, his or her entitlement to temporary disability benefits ends, and the focus shifts instead to consideration of permanent disability. Id.
8. End medical result is defined as “the point at which a person has reached a substantial plateau in the medical recovery process, such that significant further improvement is not expected, regardless of treatment.” Workers’ Compensation Rule 2.1200. The fact that some treatments, such as pain medications, physical therapy or chiropractic manipulations, may continue to provide palliative symptom relief does not negate a finding of end medical result so long as the underlying condition itself remains unlikely to improve. Coburn v. Frank Dodge & Sons, 165 Vt. 529, 533 (1996). This is particularly true in cases involving chronic pain, where the injury itself has become stable even though the pain it precipitates may continue to wax and wane over time. See 4 Lex K. Larson, Larson’s Workers’ Compensation §80.03[3] (Matthew Bender, Rev. Ed.), cited with approval in Coburn, supra; see also Workers’ Compensation Rule 2.1310 (defining palliative care). Were the rule otherwise, an end medical result might never be possible in such cases.
9. Considering these concepts in the context of the current claim, the question is whether the treatment Claimant has received since December 2010 is properly characterized as palliative or curative. If the latter, then he cannot be deemed to be at end medical result until he completes his current course of treatment, and in the meantime temporary disability benefits must be reinstated. If the former, then he remains at end medical result and is therefore not entitled to additional temporary disability benefits. Coburn, supra at 532.
10. Aside from a brief course of physical therapy, the goal of the treatments at issue here were first, to re-evaluate Claimant’s surgical options, and second, to restore some degree of lost function through multidisciplinary rehabilitation. As to the first, I conclude that for two new surgeons to essentially reiterate the same risk-benefit analysis that numerous equally qualified surgeons had stated before does not rise to the level of curative treatment necessary to negate end medical result.
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11. As for multidisciplinary rehabilitation, I am aware of other cases in which treatments directed at improving a claimant’s function have been held to negate a finding of end medical result, even though the underlying medical condition itself may have become stable. See, e.g., Cochran v. Northeast Kingdom Human Services, Opinion No. 31-09WC (August 12, 2009). Were this Claimant’s first course of such treatment, I might view his situation in the same light. But the fact is Claimant has traveled this road before, and realized only temporarily increased function as a result. Under these particular circumstances, I conclude that for him to undergo another course of functional restoration-type treatment represents palliative, not curative, care.
12. I conclude that notwithstanding the treatments he has undergone since December 17, 2010 Claimant has remained at end medical result. Therefore, he is not entitled to temporary disability benefits for any period of time since that date.
Average Weekly Wage for Subsequent Periods of Disability
13. It is possible that Claimant might become entitled to temporary total disability benefits at some future date, for example, if ultimately he elects to undergo surgery necessitated by his original injury. For that reason, I next consider how his average weekly wage for a subsequent period of disability should be calculated.
14. According to 21 V.S.A. §650(c), when an injured worker’s temporary disability occurs in separate intervals rather than as one continuous period, the applicable compensation rate must be adjusted “to reflect any increases in wages or benefits prevailing at that time.” Historically the Department has interpreted this language to mandate that a claimant’s compensation rate can only be adjusted upward, that is, when his or her wages have increased since a prior period of disability, but never downward, that is, to reflect a decrease in wages during the intervening period. See, e.g., Bollhardt v. Mace Security International, Inc., Opinion No. 51-04WC (December 17, 2004).
15. More recently, the commissioner has differentiated between situations where a claimant’s decreased wages are shown to have resulted from his or her work injury and those where they are due instead to personal choices or economic factors. See, e.g., Plante v. State of Vermont Agency of Transportation, Opinion No. 24-12WC (September 14, 2012); Griggs v. New Generation Communications, Opinion No. 30-10WC (October 1, 2010). Where the work injury itself accounts for a subsequent reduction in earnings, the average weekly wage for a subsequent period of disability should reflect the earlier, higher wages. Id. This is in keeping with the spirit of workers’ compensation – to provide wage replacement benefits that compensate fully for an injured worker’s diminished earning capacity. Orvis v. Hutchins, 123 Vt. 18, 22 (1962). But where the reduced earnings are due to other, unrelated circumstances, using the earlier wages would amount to wage enhancement, not wage replacement, and a windfall not envisioned by the statute.
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16. I acknowledge here that as a result of his original injury Claimant was unable to resume his prior work activities, for which he had been highly compensated. He asserts that it is because of his injury-related functional limitations that he has been unable to find and maintain similarly lucrative employment since then. I disagree. Claimant himself chose the career path upon which he embarked following his injury, one that his treating physician declared him physically capable of performing. That the e-commerce venture he pursued ultimately failed was a consequence of business and financial limitations, not physical or functional ones. Thus, I conclude that the diminution in Claimant’s wages during the time that he was pursuing his e-commerce business was due to non-injury-related factors.
17. It is mostly pointless to engage in a game of “what might have been” had Claimant either availed himself of different vocational rehabilitation resources or applied his settlement monies differently. Suffice it to say, by taking the path that he did, from an average weekly wage perspective I conclude that Claimant has severed the causal link between his current earning capacity and his work injury, such that his pre-injury wages are no longer relevant to his average weekly wage calculation.
Mileage Reimbursement
18. Last, I consider Claimant’s claim for mileage reimbursement. At the time of Claimant’s injury, the applicable statute of limitations was six years. 21 V.S.A. §660(a).3 As Claimant first specified his mileage reimbursement claim on January 12, 2012, any mileage expenses that were incurred more than six years prior to that date are now time barred.
19. I conclude that the mileage expenses Claimant incurred in 2005 are now time barred. Those incurred in 2006 and 2010, totaling $561.90, should be applied against the credit Defendant previously was awarded in Knoff v. Josef Knoff Illuminating, Opinion No. 13-11WC (June 2, 2011), affirmed, Knoff v. Josef Knoff Illuminating, Supreme Court Docket No. 2011-239 (December Term, 2011).
3 The statute was amended in 2004 to reduce the limitations period to three years. As a substantive amendment, the new limitations period cannot be applied to already pending injury claims. Myott v. Myott, 149 Vt. 573, 575-76 (1988). Beyond that, by its own terms the amended statute mandated that the shorter limitations period “not be construed to limit subsequent claims for benefits stemming from a timely filed work-related injury claim.” For these reasons, I conclude that the limitations period applicable to Claimant’s mileage claim is six years, as dictated by the pre-amendment statute.
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ORDER:
Based on the foregoing findings of fact and conclusions of law:
1. Claimant’s claim for temporary total disability benefits retroactive to December 17, 2010 is hereby DENIED;
2. Defendant is hereby ORDERED to offset its previously awarded credit by a total of $561.90 in mileage expenses incurred through December 14, 2011.
DATED at Montpelier, Vermont this 15th day of October 2012.
_________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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

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Selajdin Sadriu v. The Home Depot (February 23, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Selajdin Sadriu Opinion No. 07-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
The Home Depot
For: Anne M. Noonan
Commissioner
State File No. Y-50633
OPINION AND ORDER
Hearing held in Montpelier, Vermont on December 5, 2011
Record closed on January 13, 2012
APPEARANCES:
Selajdin Sadriu, pro se
Christopher Callahan, Esq., for Defendant
ISSUES PRESENTED:
1. Was Defendant justified in discontinuing Claimant’s temporary total disability benefits effective March 24, 2011 on the grounds that he had failed to conduct a good faith search for suitable work?
2. Was Defendant justified in discontinuing Claimant’s temporary total disability benefits effective June 25, 2011 on the grounds that he had reached an end medical result?
EXHIBITS:
Claimant’s Exhibit 1: Job search logs
Claimant’s Exhibit 2: Dr. Braun Consultation Summary, April 4, 2011
Claimant’s Exhibit 3: Dr. Krag After-Visit Summary, November 9, 2011
Claimant’s Exhibit 4: English language instruction log
Defendant’s Exhibit A: Medical records (CD)
Defendant’s Exhibit B: Letter from Attorney Callahan, March 1, 2011
Defendant’s Exhibit C: Letter from Anne Coutermarsh, March 14, 2011
Defendant’s Exhibit D: Letter from Attorney Callahan, March 14, 2011
Defendant’s Exhibit E: Leunig’s Bistro employment application
Defendant’s Exhibit F: Letter from Anne Coutermarsh, May 4, 2011
Defendant’s Exhibit G: Letter from John May, April 1, 2010 [sic]
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Defendant’s Exhibit H: Letter from Attorney McVeigh, June 17, 2011
Defendant’s Exhibit I: Payment history
CLAIM:
Temporary total disability benefits retroactive to March 30, 2011 and continuing, pursuant to 21 V.S.A. §642
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant worked for Defendant as a stock clerk. His primary language is Albanian, though he is able to speak, comprehend and read English to at least a limited extent. He was assisted by an Albanian interpreter at the formal hearing.
4. On July 8, 2006 Claimant injured his lower back while lifting at work. Defendant accepted this injury as compensable and began paying workers’ compensation benefits accordingly.
5. Claimant’s symptoms failed to respond to conservative therapies. In April 2007 he underwent L4-5 disc surgery. After a prolonged recovery, in September 2008 he returned to work for Defendant.
6. Following his return to work Claimant’s symptoms gradually recurred. After some time he left Defendant’s employment and began working instead as a cab driver. By April 2010 his symptoms had progressed to the point where he was again unable to work.
7. Defendant initially denied responsibility for Claimant’s renewed disability, but did not appeal when the Department ordered it to resume temporary total disability benefits as of April 27, 2010.
8. In October 2010 Claimant underwent L4-5 fusion surgery with Dr. Braun, an orthopedic surgeon. Since the surgery his low back pain has improved; however, he continues to experience constant pain radiating into his right hip, thigh and leg. The pain worsens with prolonged sitting or driving, and interferes with his sleep. Claimant is able to walk, and in fact that activity is less bothersome than either sitting or standing in a static position for an extended period of time.
Defendant’s March 2011 Discontinuance
9. At Defendant’s request, in February 2011 Claimant underwent an independent medical examination with Dr. White, a specialist in occupational medicine. Dr. White determined that Claimant’s ongoing symptoms were causally related to his July 2006 work injury and
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that his medical treatment to date had been reasonable and necessary. He further determined that Claimant had not yet reached an end medical result.
10. As to work capacity, Dr. White concluded that Claimant’s injury was only partially disabling. He recommended that Claimant return to work in a position that would allow him to sit, stand and change positions as necessary, with restrictions against heavy or repetitive lifting and bending or twisting. In imposing these restrictions, Dr. White noted that they were based solely on Claimant’s symptom tolerance, not on any specific anatomical or physiologic factor per se. Dr. White also encouraged Claimant to walk as much as tolerable.
11. On March 1, 2011 Defendant notified Claimant by letter of his obligation, pursuant to Workers’ Compensation Rule 18, to conduct a good faith search for suitable work in accordance with Dr. White’s February 2011 report, or else risk termination of his workers’ compensation benefits. Defendant enclosed a job search log for Claimant to complete and submit weekly, documenting between ten and twenty contacts each time.
12. Two weeks after receiving Defendant’s Rule 18 notification, on March 14, 2011 Claimant telephoned the Department’s workers’ compensation specialist to inquire whether he was in fact obligated to seek work in accordance with Dr. White’s report. The specialist confirmed that he was. As reflected in the specialist’s letter to both parties dated that same day, Claimant asserted that he would not search for work until his next scheduled follow-up evaluation with Dr. Braun, his treating orthopedic surgeon, on April 4, 2011.
13. Claimant having failed to submit any job search logs up to that point, and having indicated that he would not immediately commence to do so, Defendant filed a Notice of Intention to Discontinue Benefits (Form 27), which the Department approved effective March 24, 2011. Defendant’s final temporary total disability check paid Claimant through March 30, 2011.
14. As scheduled, Claimant followed up with Dr. Braun on April 4, 2011. Dr. Braun noted that while Claimant’s low back pain had improved significantly, his right leg pain continued. As to his work capacity and Dr. White’s report, Dr. Braun remarked:
[Claimant] did request additional time off work given his persistent symptoms, and I gave him a form for this. [Claimant] may indeed need a formal disability exam if he is not able to return to work in 3 months. He did have an IME recently that suggested he should be actively looking for work but he states that he is not able to do this as he is not able to sit in a car for a prolonged period of time.
15. The form referred to in Dr. Braun’s remarks was a one-page “Consultation Summary,” in which he stated, “Claimant is recovering from a lumbar fusion surgery and is not ready to return to work” until July 5, 2011. Dr. Braun did not otherwise explain why in his opinion Claimant was unable to seek work within the restrictions that Dr. White had suggested.
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16. As for further treatment, Dr. Braun recommended reconditioning exercises and possibly an epidural steroid injection to reduce Claimant’s leg pain. The latter treatment was not immediately scheduled, presumably to give Claimant additional time either to improve and/or to consider his treatment options.
17. Between mid-March and mid-June 2011 Claimant submitted various job search logs, ostensibly documenting his efforts to find work. Many of the log entries were incomplete, unverifiable or otherwise deficient; in one instance, for example, the same telephone number was listed for two entirely separate and unaffiliated employers. Between the logs themselves and Claimant’s conflicting and confusing formal hearing testimony, it is impossible to decipher which of the listed employers he actually contacted, and for which jobs he actually submitted applications. At least one application that he did submit (a copy of which Defendant introduced at hearing) was completed in such haphazard fashion that it could not possibly have led to employment.
18. Having been determined eligible for vocational rehabilitation services, from February through July 2011 Claimant was assisted in his job search efforts by John May, a certified vocational rehabilitation counselor. Mr. May informed Claimant of local job fairs, instructed him as to completing Defendant’s job search log and provided specific job leads. One such lead was for a delivery driver at a Domino’s Pizza that was only one mile from Claimant’s house. Because Claimant had experience as a cab driver and was not restricted from driving, Mr. May thought this to be a particularly good opportunity for him. Unfortunately, Claimant failed to apply for the position. Nor did he attend any of the job fairs or follow up on the contacts Mr. May forwarded to him thereafter.
19. Mr. May also suggested that Claimant enroll in free English classes, offered weekly at the local library, as a means of enhancing his employability. Claimant attended four such classes and then stopped.
20. Mr. May testified that in his opinion Claimant did not participate in the vocational rehabilitation process to the extent necessary to establish that he was making a good faith search for suitable work. Based on the evidence presented, I concur.
Defendant’s June 2011 Discontinuance
21. At Defendant’s request, in June 2011 Claimant underwent a second independent medical examination with Dr. White. Dr. White reported that Claimant was anticipating another consultation with Dr. Braun, that spinal injections might be offered and that “further investigation” might lead to a plan for another surgical procedure. Notwithstanding these potentially ameliorative treatments, Dr. White determined that Claimant had reached an end medical result, with a 22 percent whole person permanent impairment referable to his lower back.1
1 Of the 22 percent rated, 10 percent had been paid in accordance with a previous impairment rating done in 2009. Pursuant to the Department’s interim order, on July 1, 2011 Defendant began making weekly payments on the remaining 12 percent due in accordance with Dr. White’s rating.
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22. With Dr. White’s June 2011 report as support, the Department approved Defendant’s discontinuance of Claimant’s temporary total disability benefits on end medical result grounds effective June 25, 2011.
23. Claimant did in fact consult again with Dr. Braun, in August 2011. Subsequently he underwent a spinal injection, both to help diagnose the source of his radiating pain and to provide some therapeutic relief. Most recently, in October and November 2011 Claimant underwent a surgical consult with Dr. Krag. Dr. Krag has rejected surgery as an appropriate treatment option for Claimant’s current symptoms. Instead he has recommended that Claimant be evaluated for possible entry in an interdisciplinary rehabilitation program.2 Claimant was scheduled to undergo this evaluation within days after the formal hearing.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Once a claim has been accepted and benefits have been paid, the party seeking to discontinue bears the burden of proving that it is proper to do so. Merrill v. University of Vermont, 133 Vt. 101, 105 (1974); Luff v. Rent Way, Opinion No. 07-10WC (February 16, 2010).
3. Defendant here asserts two grounds for discontinuing Claimant’s temporary disability benefits – first, that he failed to conduct a good faith search for suitable work once released to do so; and second, that he reached an end medical result for his work-related injury.
4. Discontinuances based on a claimant’s failure to conduct a good faith search for suitable work are governed by Workers’ Compensation Rule 18.1300. Underlying any such discontinuance there must be credible evidence establishing that it is medically appropriate for the claimant to return to work, either with or without restrictions. Worker’s Compensation Rule 18.1310.
2 Dr. Krag’s brief “After Visit Summary” includes the following remark as to Claimant’s work capacity: “Temporary total disability until at least completion of the [interdisciplinary evaluation].” As discussed infra, Conclusion of Law No. 5, I consider this statement to have the same weight as that accorded Dr. Braun’s April 2011 disability determination, see Finding of Fact No. 15 supra.
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5. I conclude that Dr. White’s February 2011 report and opinion as to Claimant’s work capacity constitutes sufficiently credible medical evidence to establish Claimant’s obligation to seek suitable work. In reaching this conclusion, I must discount both Dr. Braun’s and Dr. Krag’s conclusory statements to the contrary. Dr. Braun’s statement is particularly troublesome because it appears to have been motivated at least in part by Claimant’s own preference to remain off work rather than by a well-reasoned medical determination as to his work capacity. Beyond that, merely stating that a patient is “not ready to return to work” or is “totally disabled” is unlikely to be persuasive in cases such as this one, where the claimant obviously retains the ability to engage in at least some work-related activities. See, e.g., Lewia v. Stowe Motel, Opinion No. 19-11WC (July 25, 2011).
6. Having concluded that it was medically appropriate for Claimant to return to work, I further conclude that he failed to conduct a good faith search for suitable work once Defendant informed him of his obligation to do so. At best he was passive and inept; at worst, he was non-compliant. In either case, his actions fell far short of what reasonably should be expected of someone who is truly invested in the process of finding a job.
7. I conclude that Defendant was justified in terminating Claimant’s temporary total disability benefits effective March 24, 2011 on the grounds that he had failed to conduct a good faith search for suitable work.
8. Provided a claimant has not yet reached end medical result, benefits that were discontinued for failure to conduct a good faith search for suitable work can be reinstated once he or she engages appropriately in the job search process. Lewia, supra. With that in mind, it is necessary to consider Defendant’s alternate ground for discontinuing Claimant’s temporary disability benefits – that he reached an end medical result for his work-related injury in June 2011. I conclude that he did not.
9. Vermont’s workers’ compensation rules define “end medical result” as “the point at which a person has reached a substantial plateau in the medical recovery process, such that significant further improvement is not expected, regardless of treatment.” Workers’ Compensation Rule 2.1200. If reasonable treatment options exist that might yet yield positive results once they are adequately explored, then the claimant has not yet reached end medical result. Coburn v. Frank Dodge & Sons, 165 Vt. 529, 533 (1996); Luff v. Rent Way, Opinion No. 07-10WC (February 16, 2010).
10. In this case, Dr. White determined that Claimant had reached an end medical result by June 2011, but even he acknowledged that further treatment options were still under consideration, including possibly another surgery. Dr. White thus negated his own end medical result determination. And although surgery now has been ruled out, as of the date of the formal hearing Claimant had yet to be evaluated for possible entry into an interdisciplinary rehabilitation program. This is another treatment option that, until adequately investigated, might well preclude a finding of end medical result. Cochran v. Northeast Kingdom Human Services, Opinion No. 31-09WC (August 12, 2009).
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11. I conclude that Defendant has failed to sustain its burden of proving that Claimant had reached an end medical result by June 25, 2011. Its discontinuance of benefits on those grounds, therefore, was inappropriate.
12. In sum, I conclude that Defendant was justified in discontinuing Claimant’s temporary disability benefits on the grounds that he had failed to conduct a good faith search for suitable work, but not on the grounds that he had reached an end medical result. Should Claimant re-engage in the job search process at any time before he reaches an end medical result, Defendant will be obligated to reinstate his benefits accordingly. Lewia, supra. Defendant also remains obligated to pay for all reasonable and necessary medical services and supplies causally related to Claimant’s compensable work injury.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for temporary total disability benefits retroactive to March 30, 2011 and continuing is DENIED.
DATED at Montpelier, Vermont this 23rd day of February 2012.
_________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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