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L. S. v. Charles River Lab (August 2, 2007)

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L. S. v. Charles River Lab (August 2, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
L. S. Opinion No. 21-07WC
By: Jane Dimotsis, Hearing Officer
v. Codee McDaniel, Law Clerk
For: Patricia Moulton Powden
Charles River Lab Commissioner
State File No. U-11848
Pretrial Conference held on November 11, 2006
Record Closed on July 16, 2007
APPEARANCES:
Joseph Paul O’Hara Esq., and Frederick F. Bethel, Esq., for the Claimant
John Valente, Esq., for the Defendant
ISSUES:
1. Whether the Amendment to the Claimant’s Individual Written Vocational Rehabilitation Plan is appropriate.
2. Is the employer/carrier allowed to challenge the Individual Written Rehabilitation Plan by appointing a second rehabilitation counselor? If not, then the Claimant’s Motion for In Limine should be granted which bars the admission of the second Independent Vocational Evaluation (record review) performed by Maurice Demers of CRC Solutions.
EXHIBITS:
Joint: Vocational Rehabilitation records from Wagner Rehabilitation
FINDINGS OF FACT:
1. Claimant is a refugee of the Democratic Republic of the Congo. He immigrated to the United States in 2001 with very limited English skills.
2. Claimant’s educational background from the Congo is undisputed. He completed a Bachelor’s Degree in Financial Accounting and Business Administration in 1975 from Lwanaururu Institute of Beni and a Master’s Degree in Agronomy and Zoology from the Institute of Mondongo. These degrees were in French.
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3. Claimant does not possess any record of his higher education. He has been unable to obtain these records due to the civil strife surrounding the Congo, and the communication barriers created by limited telephone access. One of the colleges he attended has burned down; which has further frustrated these efforts.
4. Claimant has twenty-plus years of work experience in organizing and managing small business cooperatives, primarily agricultural, in several countries in Africa and Haiti. He has also served as a financial expert for the United Nations.
5. Claimant is fluent in French, Lingala, Kiswahili, Creole, and Kirundi languages.
6. The Claimant’s work authorization permit was approved in January 2001 by the Immigration Department. Subsequently, he began looking for jobs in the accounting field.
7. In February 2002, Claimant was hired by the University of Vermont as a lab technician. His job duties included monitoring the health and safety of the animals, feeding the animals, and changing their bedding. These duties were laborious and required heavy lifting and moving.
8. Claimant was employed by University of Vermont from February 2002 to May 2002. He received a wage of $13 dollars per hour.
9. Charles River was awarded the contract from the University of Vermont in June 2002 to manage the College of Medicine’s animal facilities.
10. Charles River hired Claimant in June 2002 as a lab technician at a pay rate of $13.00 per hour. During all relevant times pertaining to this action Claimant was employed by Charles River and Chubb Insurance has been the insurer of the employer.
11. On January 7, 2004 Claimant was injured while loading a 50 lb. bag of bedding into a cart; when he turned, and heard something “crack” in his shoulder or clavicle. Claimant immediately contacted his supervisor who sent him to the Occupational Health Center where he was treated by Dr. Smith-Horne for a right shoulder strain and SLAP lesion.
12. Medical treatment was conservative initially.
13. On March 28, 2005, Dr. Macy performed arthoscopic SLAP lesion and rotator cuff repair surgery.
14. On September 8, 2005, Claimant was released for light duty work per Dr. Macy with the following restrictions: limit of six hours of sitting and standing; lift no more than 20 lbs. from floor to waist; lift no more than 5 lbs. above chest; no repetitive use of the right upper extremity; and no use of right upper extremity above waist level or further than 12 inches away from body.
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15. Claimant reached Medical End Result on September 20, 2005 and was assigned a 15 % whole person impairment rating by Dr. Macy. Dr. Macy concluded that typing and computer work was within the scope of Claimant’s work restrictions. However, testimony from Tammy Parker, Claimant’s Vocational Rehabilitation Counselor, indicates that Claimant cannot perform this type of clerical work because it elevates the level of pain in his shoulder.
16. Charles River was unable to accommodate the Claimant’s work restrictions and terminated him in April 2005.
17. Claimant has been unemployed since January 7, 2004.
18. The Department approved Claimant’s Form 21 for temporary total disability on May 5, 2005 at a compensation rate of $563.81 per week. The Claimant received temporary total disability benefits from February 20, 2005 until September 1, 2005.
19. On October 11, 2005, the Department approved Form 24 for temporary partial disability at a compensation rate of $533.34. These benefits were paid to the Claimant until September 20, 2006.
20. On February 27, 2007 the Department approved the Claimant’s Form 22 for permanent partial disability compensation at a rate of $546.67.
21. Claimant’s wife works part-time and he continues to receive $546.67 per week in permanent partial disability compensation.
22. On September 20, 2005, Claimant met with Tammy Parker, from Wagner Rehabilitation Services, who performed an initial report at the request of the insurer. Ms. Parker’s report explained that even though Dr. Macy approved typing and computer work, Claimant was unable to perform more than one to two hours of this work because it causes him increased pain in his right shoulder.
23. Shaun O’Connor performed a Functional Capacity Examination of the Claimant on October 11, 2005. He placed Claimant at the medium level, with a lifting capacity of 34 lbs., and the ability to perform eight hours of work per day.
24. On November 2, 2005, Ms. Parker determined that Claimant was eligible for Vocational Rehabilitation pursuant 21 V.S.A. § 641. In this assessment, she noted the difficulty Claimant would face in finding a sedentary or light duty occupation that would pay 80 % of his $770.68 average weekly wage. She added that Claimant’s employability was also hindered by the following factors: a language barrier (limited English skills), and physical limitations.
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25. Ms. Parker submitted Claimant’s Individual Written Rehabilitation Plan (IWRP) to the Department of Labor on July 30, 2006. The first objective (Part I) of IWRP was for the Claimant to successfully complete the Intensive English Program at St. Michael’s College by May 12. 2006. The second objective (Part II) involved making a determination of what additional coursework was necessary for the Claimant to obtain employment as an accountant. Ms. Parker expressly provided in Part I of the IWRP, that an amendment would be made following successful completion of the Program. The total cost of the Program was $6,617.55 which included the 15 % discount by the College for the first eight weeks.
26. On January 9, 2006, Trudy Smith, of the Department of Labor, Vocational Rehabilitation, approved the initial IWRP.
27. An amendment to the IWRP was drafted on July 13, 2006 by Ms. Parker and submitted to the Department of Labor on August 2, 2006. The Claimant, according to the revised Plan, is to complete an Associate’s Degree in Accounting at the Community College of Vermont (CCV) in Part I; with the option of completing a Bachelor’s Degree if necessary in Part II. The total cost of the Amended IWRP for Part I is $12,421.00 at the high end which excludes grants and other sources of financial aid. The estimated cost of the Bachelor’s Degree from Champlain College in Part II is $30,000.
28. The insurer stated that it supported the Claimant’s pursuit of an Associate’s Degree on July 20, 2006. However, the insurer rejected financial responsibility for the Bachelor’s Degree in belief that it was excessive because Claimant already possesses such a degree from the Congo.
29. Trudy Smith, of the Department of Labor, held an informal telephone conference with the parties on August 24, 2006. She ordered the carrier to continue paying for the vocational rehabilitation services and training until the matter was resolved at the formal hearing level. Additionally, Ms. Smith reached an impairment rating of 15.5 % which was agreed to by the parties.
30. Claimant received a federal Pell Grant in the amount of $1,519.00, reducing the carrier’s required payment to $1,400.06 for the fall semester at CCV which it has paid.
31. Claimant satisfactorily completed his first semester at CCV earning the following grades: A+ in College Algebra; B- in Dimensions of Learning; C- in Microeconomics; and an A+ in Financial Accounting.
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CONCLUSIONS OF LAW:
1. The burden of proof ultimately rests upon the Claimant. Hence, the Department has consistently upheld the Claimant’s burden to prove all facts essential to the rights asserted. Goodwin v. Fairbanks, Morese Co., 123 Vt. 161 (Vt. 1963). The Claimant must also establish the character and extent of his injury in addition to the casual connection between the injury and the employment through a demonstration of sufficient credible evidence. Egbert v. The Book Press, 144 Vt. 367 (Vt. 1984).
2. Moreover, “it is the [C]laimant’s burden to demonstrate the entitlement to vocational rehabilitation services due to his inability to perform work for which the employee has previous training and experience, and which provides suitable employment.” Steven Blais v. Church of Jesus Christ of Latter Day Saints, Opinion No. 30-99WC (July 30, 1999) (quoting Peabody v. Homes Insurance Co. and Comprehensive Rehabilitation Associates, Opinion No. 60-98WC (Dec. 23, 1998)). The Claimant, consequently, has not satisfied this burden because he has not proven that he is unable to find suitable employment in the accounting field without a Bachelor’s Degree.
3. While the “[C]laimant’s goal of furthering his education is laudable, it is simply not compensable” because the Claimant has not demonstrated that his lack of supporting documentation of his education has directly prevented him from obtaining employment. Kathleen Main v. Nastech, Opinion No. 88-95WC (Nov. 21, 1995).
4. Furthermore, pursuant to 21 V.S.A. § 641(a) “[w]hen as a result of an injury covered by this chapter, an employee is unable to perform work for which the employee has previous training or experience, the employee shall be entitled to vocational rehabilitation services, including re-training and job placement as may be reasonably necessary to restore the employee to suitable employment.” The Department defines “suitable employment” as that which is “reasonably comparable to the [C]laimant’s pre-injury job after consideration of wages, potential for advancement, commuting distance, shift and/or other relevant factors; and reasonably attainable given the current regional labor market conditions in light of the [C]laimant’s age, temperament, education, training, work experience, physical capabilities and vocational aptitudes.” Steven Blais v. Church of Jesus Christ of Latter Day Saints, Opinion No. 30-99WC (July 30, 1999).
5. The Claimant is entitled to the provisions outlined in Part I of the Amended IWRP because it is a reasonable and appropriate vocational goal. On the other hand, Part II of the IWRP is not a reasonable or necessary vocational goal. And more, even though Part II “is a worthy goal, it is not one mandated by the statute or by regulations.” Eric Beauregard v. Grand Union, Opinion No.: 71-95WC (Oct. 11, 1995).
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6. The rules governing Workers’ Compensation constrain the Department from awarding the Claimant the provisions set forth in Part II of the Amended IWRP. However, the Department does not seek to deter the Claimant from pursuing a Bachelor’s Degree, but only to preclude the Defendant’s financial responsibility for this educational endeavor.
7. Similarly, there is nothing in the record to suggest that the Claimant cannot obtain a job “reasonably comparable” to the occupation he held prior to the injury at issue or an occupation for which he has adequate training. Kathleen Main v. Nastech, Opinion No. 88-95WC (Nov. 21, 1995) (denying Claimant’s entitlement to tuition reimbursement and attorney fees). Considering the Claimant’s twenty-plus years of professional work experience; the combination of his education from the Congo, and anticipating his completion of an Associate’s Degree, the Claimant should be able to find suitable employment. The Claimant should not restrict his job search to the accounting field. Rather, by considering other fields of employment, the Claimant has an even stronger likelihood of finding employment at a suitable wage, which is as close as possible to 100 % of the average weekly wage under Rule 15.0000. In the alternative, if 100 % of the average weekly wage is not reasonably attainable, then the new wage is considered suitable if it is 80 % of the average weekly wage under Rule 2.1360.
8. The Vocational Rehabilitation Counselor’s opinions reflect a sincere concern about the Claimant’s need for a Bachelor’s Degree to ensure his return to gainful employment. This concern is not persuasive because “a belief is not enough to meet the requirements of reasonable and necessary.” Steven Blais v. Church of Jesus Christ of Latter Day Saints, Opinion No. 30-99WC (July 30, 1999).
9. Since the Claimant’s Motion for In Limine was granted by Hearing Officer Jane Dimotsis, the second issue is resolved. The Defendant’s actions were not proper under Rule 30.800 because the opposing party did not request the second Independent Vocational Evaluation. Thus, the content of the second Independent Vocational Evaluation performed by Ms. Demers has not been considered by the Department in this ruling.
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ORDER
Therefore, based on the foregoing findings of fact and conclusions of law, it is hereby ORDERED that Chubb Insurance accept financial responsibility for Part I of the Independent Written Rehabilitation Plan which is hereby limited to the costs associated with the Claimant’s completion of an Associate’s Degree at Community College of Vermont.
Dated at Montpelier, Vermont this 2nd 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)

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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.

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.

Leo Moulton v. J.P. Carrera, Inc. (October 11, 2011)

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

Leo Moulton v. J.P. Carrera, Inc. (October 11, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Leo Moulton Opinion No. 30-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
J.P. Carrera, Inc.
For: Anne M. Noonan
Commissioner
State File No. X-63476
OPINION AND ORDER
Hearing held in Montpelier, Vermont on April 25 and 26, 2011
Record closed on June 16, 2011
APPEARANCES:
James Dumont, Esq., for Claimant
James O’Sullivan, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant permanently and totally disabled as a consequence of his work activities on or about September 17, 2004?
2. If not, is Claimant entitled to vocational rehabilitation services as a consequence of his September 2004 work injury?
3. Is Defendant obligated to pay various medical bills incurred for treatment of Claimant’s neck condition as causally related to his September 2004 work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: CD of x-rays, 4/14/11
Joint Exhibit III: Supplemental medical records
Claimant’s Exhibit 1: Various photographs
Claimant’s Exhibit 2: Various correspondence
Claimant’s Exhibit 3: Curriculum vitae, Gregory LeRoy
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CLAIM:
Permanent total disability benefits pursuant to 21 V.S.A. §645
Medical benefits pursuant to 21 V.S.A. §640
Vocational rehabilitation benefits pursuant to 21 V.S.A. §641
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.
Claimant’s Work as a Bridge Tensioner
3. Claimant began working for Defendant in June 2001. Defendant manufactures and installs precast concrete products, including bridge beams and planks.
4. Although initially Claimant was hired to do yard and janitorial work, within a few months’ time he began doing bridge tensioning work as well. Bridge tensioning is the process by which the cables that hold a bridge beam in place are installed and tightened. In Claimant’s case, the job entailed being suspended upside down from a harness attached to the bridge deck, pulling the cable through and using a heavy jack to adjust it to the appropriate tension. Each step in the process took two to five minutes of upside down harness work. Depending on the size of the bridge and the number of cables to be installed, Claimant might have to be suspended anywhere from 15 to 70 times in a day.
5. Between 2001 and 2004 Claimant estimated that he worked on 62 bridges. The work was somewhat sporadic; some weeks he might work on three bridges, some weeks none at all. When not assigned to tensioning work, Claimant continued with his regular janitorial duties.
6. Claimant often experienced neck pain while performing his bridge tensioning duties. On one occasion he worked on a job where instead of being suspended upside down in harnesses, the bridge tensioners knelt upright on temporary platforms. Claimant found this position to be much less stressful on his neck. Later he suggested that Defendant consider utilizing similar equipment, but it declined to do so.
Claimant’s Work Injury, Medical Course and Current Condition
7. In mid-September 2004 Claimant was driving home from a bridge tensioning job in Maine when he began to experience neck pain and vertigo. As to the latter condition, Claimant’s medical records document prior episodes of dizziness, with no cause ever ascribed. This time as well, neither specialist evaluations nor diagnostic testing revealed a clear etiology. Eventually the condition resolved on its own.
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8. Claimant had experienced occasional bouts of neck stiffness in the past as well. These episodes had always resolved with little treatment. This time, however, his symptoms, consisting of left-sided neck pain, stiffness, swelling and spasms, continued. Diagnostic testing revealed some degenerative changes in his cervical spine, but no evidence of disc herniation or other neurological compromise. Ultimately, Claimant was diagnosed with a myofascial pain syndrome focused in his left lateral neck.
9. Because Claimant’s neck pain was not radicular in nature, surgery was not an appropriate treatment option. Instead, he treated conservatively, first with physical therapy and later with botulism toxin (botox) injections. None of these treatments was effective at controlling his symptoms.
10. Having derived no benefit from botox injections, in July 2007 Claimant’s treating neurologist, Dr. Orecchio, determined that he had reached an end medical result. On those grounds, the Department approved Defendant’s discontinuance of temporary total disability benefits effective November 20, 2007. In April 2008 Dr. Bucksbaum, a physiastrist, rated Claimant with a 7% whole person permanent impairment referable to his cervical spine.
11. Currently Claimant suffers from extremely limited range of motion in his neck. He holds his left shoulder in an elevated position, as otherwise he experiences painful muscle spasms. Virtually any movement of his neck or left arm exacerbates his pain, as does any sustained posture, including sitting. When his neck is irritated it swells to the point where even swallowing hurts.
12. Claimant has not worked as a bridge tensioner since mid-September 2004. After a period of total disability, in late December 2005 he resumed his janitorial duties for Defendant. While performing these duties, in March 2006 he experienced an acute exacerbation of neck pain, as a result of which he was taken out of work again. Claimant has not returned to work since.
13. In a typical week now, Claimant might take one or two short walks in the meadowlands behind his home, often with a camera, which he uses to photograph wildlife. He is at least somewhat computer literate, and will spend up to 30 minutes at a time on his computer, though not daily. He is restricted physically in this activity by his inability to sit for extended periods of time as well as by his limited ability to use his left hand. He no longer drives, as he cannot turn his head enough to see cars approaching at intersections. Most nights he sleeps in a recliner rather than in bed. Other than extra-strength Tylenol, he does not use any pain control medications.
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Medical Opinions as to Causation
14. Various doctors have given opinions as to the causal relationship, if any, between the bridge tensioning work that Claimant performed for Defendant in the months leading up to September 2004 and his current symptoms. Based on Claimant’s description of his work activities, Dr. Klitzner, his primary care provider, Dr. Orecchio, his neurologist, and Dr. Bucksbaum, a physiatrist, found that such a relationship was likely. All three pointed specifically to the pressure that being suspended upside down from a harness would have put on the left side of Claimant’s neck.
15. With training in both physiatry and biomechanical engineering, Dr. Bucksbaum’s causation opinion is particularly insightful. Biomechanical engineering is the study of how the human body reacts to mechanical forces placed upon it. According to Dr. Bucksbaum, the harness that Claimant used for his bridge tensioning work was not designed with upside down suspension in mind. When used for that purpose, the harness’ straps put significant force on the muscles, ligaments, tendons and supporting soft tissues in his neck. In an upside down position, the weight of Claimant’s head, combined at times with that of a heavy jack, would have supplied a significant amount of pulling force, or traction, to those tissues. First they stretched, and then they tore. As the tissues failed, the cervical spine became distracted, resulting in muscle tightness and nerve irritation. Superimposed on Claimant’s pre-existing degenerative disc disease, over time the damage became permanent and the condition chronic.
16. Defendant’s medical expert, Dr. Glassman, disagreed with this analysis. In his opinion, Claimant’s work activities in September 2004 likely caused a cervical and trapezius strain, but that injury has long since resolved. His current cervical symptoms are the product solely of his pre-existing degenerative disc disease.
17. Dr. Glassman did not address the possibility, as Dr. Bucksbaum did, that the traction forces applied to Claimant’s neck in the course of his bridge tensioning work might have aggravated his underlying disc disease. Nor did he explain the basis for his opinion that Claimant’s work-related cervical strain likely resolved within a matter of weeks, and that almost immediately thereafter his degenerative disease became the primary symptom generator. These gaps in Dr. Glassman’s causation analysis are troubling.
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Claimant’s Current Work Capacity
18. Claimant has undergone two functional capacity evaluations, the first in October 2007 and the second in April 2008. For the most part, the results of both evaluations were consistent. The 2008 evaluation documents a full time capacity for light work, with some abilities extending into the medium range as well, but with the following functional restrictions:
• Maintain neutral neck positions;
• Avoid activities that require sustained cervical and upper extremity postures;
• Limit forward reaching tasks to those that allow the elbows to be maintained within 4 to 6 inches from the body, so as to reduce stress on the cervical spine;
• Limit stooping or overhead activities, and avoid any functional work tasks requiring sustained stooping (cervical stress in a forward flexed position) or cervical extension;
• Avoid driving as a primary job function, due to safety concerns associated with limited cervical mobility; and
• Avoid work activities at elevated surfaces requiring high levels of balance.
19. Both Dr. Orecchio and Dr. Bucksbaum endorsed the 2008 FCE as an accurate reflection of Claimant’s work capacity. Defendant’s expert, Dr. Glassman, generally endorsed the results as well, though he attributed Claimant’s functional restrictions entirely to a combination of his subjective pain complaints and his underlying degenerative disc disease, and not at all to his work injury.
20. Dr. Klitzner questioned the FCE results, particularly as to Claimant’s capacity for sustained sitting, standing or upper extremity use. For example, in the context of the 2008 FCE Claimant demonstrated the ability to sit for more than an hour without a stretch break, while Dr. Klitzner estimated his sitting tolerance as limited to only 15 or 20 minutes before his symptoms became exacerbated.
21. Upon close examination I find that Dr. Klitzner did not repudiate the FCE results entirely. To the contrary, at least with respect to Claimant’s sitting tolerance her opinion comports with them. The FCE acknowledged that the primary limiting factor in that regard was associated with sustained postures, such as prolonged neck positioning with a combination of reaching and functional hand use. Dr. Klitzner’s estimate was presented in the context of the possibility that Claimant might be retrained to work at a desk job in computer-related employment, an activity that presumably would involve some of those same postures. Beyond that, to the extent that Dr. Klitzner’s opinion as to Claimant’s work capacity is still somewhat inconsistent with the 2008 FCE, I find that the FCE more accurately reflects Claimant’s current functional capacity.
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Claimant’s Work History and Vocational Rehabilitation Efforts
22. Claimant has a high school education, but no advanced coursework or training beyond that. Growing up, he worked on his family’s dairy farm. After his father died he purchased the farm from his mother and ran it for some years. Claimant was responsible not just for the physical labor, but also for the associated paperwork – tracking production and breeding schedules, preparing budgets and paying bills, for example.
23. Declining milk prices forced Claimant to sell his farm in 1987. For a time thereafter he worked on a neighboring dairy farm. Later he suffered a knee injury, following which he decided to seek lighter work. From 1995 until 2000 Claimant worked as a groundskeeper at the Swift House Inn in Middlebury. His duties there included both interior work, such as painting and patching walls, and exterior work, such as snow shoveling and plowing in the winter and lawn mowing and garden maintenance in the summer. Claimant left the Inn after a falling out with his supervisor. In 2001 he began working for Defendant.
24. Claimant was found entitled to vocational rehabilitation services in June 2009. His functional limitations precluded him from returning to the type of medium and heavy work he had done before. Hoping to capitalize on Claimant’s prior experience, his vocational rehabilitation counselor, Jay Spiegel, suggested CAD technician, project estimator or welding supervisor as possible alternative employment options.
25. As a first step to determining whether the tentative job goals he had identified were reasonable, Mr. Spiegel proposed that Claimant enroll in a computer class to enhance his skills in that area. When asked to approve the proposal, however, Claimant’s treating physician, Dr. Klitzner declined to do so. Dr. Klitzner did not doubt Claimant’s intellectual ability to perform the type of work for which Mr. Spiegel sought to prepare him. As noted above, however, she did question Claimant’s physical capacity for either computer class work or subsequent employment given the amount of sustained sitting and keyboarding that would be required.
26. Without Dr. Klitzner’s approval, Mr. Spiegel did not feel it appropriate to proceed. With the Department’s consent, in December 2009 vocational rehabilitation services were suspended pending resolution of the factual and legal issues that Dr. Klitzner had raised as to Claimant’s work capacity and employability potential.
Expert Opinions as to Employability
27. Both parties presented expert opinions from certified vocational rehabilitation counselors as to Claimant’s ability to secure and maintain regular gainful employment. According to Claimant’s expert, Gregory LeRoy, he is unemployable. According to Defendant’s expert, Clayton Prinson, he has a work capacity, is employable and should be conducting his own self-directed job search.
(a) Mr. LeRoy’s Analysis
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28. To assist in his analysis of Claimant’s vocational rehabilitation potential, Mr. LeRoy referred him for both psychological and vocational aptitude testing. Dr. Hedgepeth, a clinical and neuropsychologist, conducted the psychological evaluation. He determined that Claimant was of average intelligence, academic ability and learning and memory skills. His evaluation did not reveal any evidence of clinically significant psychopathology or other disabling psychological factors impacting Claimant’s ability to work.
29. To assess Claimant’s vocational aptitude, Mr. LeRoy referred him to Jack Bopp, a vocational evaluator. Through formal testing, Mr. Bopp analyzed Claimant’s aptitudes, interests and transferable skills, and then applied them to various vocational scenarios assuming either a sedentary or a light work capacity. Among his findings:
• There are no sedentary or light occupations (as classified by the U.S. Department of Labor) to which Claimant could transfer his current vocational skills and knowledge.
• There are a limited number of unskilled sedentary or light occupations for which Claimant possesses the worker traits1 generally required for average successful performance and which likely exist in his labor market area. These include such occupations as janitors, security guards, couriers and general office clerks.
• To be employed in these occupations, Claimant would have to be able to manage his pain effectively enough so as to maintain work quantity, quality and attendance standards. He also would require accommodation for his physical limitations.
• Given his age (62 as of Mr. Bopp’s evaluation), years since last in an educational setting (44) and low average verbal comprehension and processing speed abilities, Claimant is a poor candidate for acquiring new marketable skills through classroom retraining.
30. Mr. LeRoy also referred Claimant for a driving evaluation with Miriam Monahan, a certified driver rehabilitation specialist. Ms. Monahan determined that Claimant’s ability to drive safely was limited by both pain and reduced range of motion in his neck and left arm. These issues could be addressed in part with adaptive equipment, such as a steering wheel knob and a wide-angle side view mirror. With these adaptations, Ms. Monahan expected that Claimant would be able to drive within the local Middlebury area, where he currently resides. She recommended that he avoid driving in complex traffic or for more than 20 to 30 minutes at a time.
1 The “worker traits” referred to in Mr. Bopp’s analysis are diverse and extensive. They include physical abilities, such as kneeling, stooping and reaching; intellectual aptitudes, such as for verbal, numerical and spatial reasoning; demonstrated aptitudes for manual dexterity and motor coordination; and temperaments, such as for decision-making, following instructions and performing repetitive work.
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31. Based both on these specialist evaluations and on his own expertise in vocational rehabilitation, Mr. LeRoy concluded that Claimant has no reasonable prospect of securing and sustaining regular gainful employment. His age, education, transferable skills and time out of work, combined with his physical limitations and chronic pain, all present substantial barriers to employment, particularly in skilled occupations. As for unskilled occupations, his need for accommodations such as frequent stretch breaks and his inability to commute beyond his local area would make it difficult for him to compete successfully against a pool of less restricted applicants.
32. Mr. LeRoy acknowledged that there might be specific job openings in the Middlebury area for which Claimant might be hired – jobs in which taking a stretch break would not necessarily impact his productivity, for example. Mr. LeRoy’s opinion is based on probabilities, however. From that perspective, the chances that Claimant will be able to find and keep a suitable job are slight. I find this testimony to be credible.
33. As for whether Claimant’s employment prospects might improve with further vocational rehabilitation services, Mr. LeRoy asserted that this was unlikely. Medically, Claimant’s condition is chronic and therefore the prognosis for further improvement is poor. Vocationally, Claimant’s other employment barriers are unlikely to be overcome even with further assistance. With or without additional vocational rehabilitation services, in Mr. LeRoy’s opinion Claimant is now permanently incapable of securing and maintaining regular gainful work.
(b) Mr. Prinson’s Analysis
34. Mr. Prinson’s analysis of Claimant’s employability focused primarily on return to work alternatives he might consider given his interests, prior work experience and physical capacity. Mr. Prinson identified hardware, pet/pet supplies and nursery sales, automatic film developer, flagger or host as possibilities. Later, after considering the restrictions suggested by the 2008 FCE, Mr. Prinson added to the list such occupations as dairy farm manager, plant care worker, sheet metal worker, machinist, caretaker/overseer and exterminator.
35. Mr. Prinson also conducted a limited review of the Middlebury labor market area to search for currently existing employment opportunities for which he felt Claimant might qualify. Among the job openings being advertised were custodian, wholesale horticultural manager and laundry worker. Mr. Prinson did not contact any employers directly, and therefore had no information as to the specific job qualifications and duties required for any of the jobs he identified.
36. Mr. Prinson acknowledged Claimant’s age, extended period of time out of work and limited driving tolerance as barriers to employment, but also noted his good worker traits, respectable work history and willingness to take on challenging work assignments as positive indicators. Considering both these and the alternative work options he had identified, Mr. Prinson concluded that Claimant has a viable work capacity, is not unemployable and therefore is not permanently and totally disabled. To the contrary, in Mr. Prinson’s opinion Claimant is not even entitled to vocational rehabilitation services, and should be conducting his own self-directed search for suitable employment.
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37. When questioned as to the return to work alternatives that Mr. Prinson had identified, Mr. LeRoy effectively discounted most of them. Many, such as hardware, pet supplies and nursery sales, horticultural manager and laundry worker, are classified as medium physical demand level occupations, and thus would exceed Claimant’s work capacity as measured by the 2008 FCE. Others, such as sheet metal worker, caretaker and exterminator, typically require frequent stooping, forward reaching or sustained non-neutral neck positions, again in violation of the restrictions suggested by the 2008 FCE. Still others, such as automatic film developer and dairy farm manager (assuming no physical labor), likely do not exist in Vermont.
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).
Medical Causation
2. The first disputed issue in this claim is medical causation. Drs. Klitzner, Orecchio and Bucksbaum all concluded that Claimant’s current condition is causally related to his work activities for Defendant. Dr. Glassman concluded that any work-related injury has long since resolved, and that Claimant’s current condition is the result solely of his pre-existing degenerative disc disease.
3. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
10
4. I conclude here that the evidence provided by Claimant’s experts is more credible than that provided by Dr. Glassman. In reaching this conclusion, I am particularly mindful of Dr. Bucksbaum’s unique qualifications as both a physiatrist and a biomechanical engineer. With this training, he was better positioned than Dr. Glassman was to analyze the likely impact of Claimant’s bridge tensioning work on the muscles, ligaments, tendons and supporting soft tissues in his neck. Dr. Bucksbaum adequately explained how the work-related stress to those structures likely aggravated Claimant’s pre-existing degenerative disease to the point where symptoms that had been at best minor and episodic became chronic and disabling. Dr. Glassman’s analysis fell far short in this regard.
5. I conclude that Claimant has sustained his burden of proving that the neck pain and associated symptoms from which he has suffered continuously since September 17, 2004 are causally related to his work activities for Defendant. In addition to paying indemnity benefits, Defendant is responsible for whatever reasonable and necessary medical treatment he has undergone as a consequence.
Permanent Total Disability
6. The second disputed issue is whether Claimant’s work-related neck injury has rendered him permanently and totally disabled. 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.
11
7. 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 Capacity 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.
A claimant shall not be permanently totally disabled if he or she is able to successfully perform regular, gainful work. Regular, gainful work shall refer to regular employment in any well-known branch of the labor market. Regular, gainful work shall not apply to work that is so limited in quality, dependability or quantity that a reasonably stable market for such work does not exist.
8. As Professor Larson describes it, the essence of the odd lot test is “the probable dependability with which [the] claimant can sell his or her services in a competitive labor market, undistorted by such factors as business booms, sympathy of a particular employer or friends, temporary good luck or the superhuman efforts of the claimant to rise above crippling handicaps.” 4 Lex K. Larson, Larson’s Workers’ Compensation §83.01 at p. 83-3 (Matthew Bender, Rev. Ed.).
9. I conclude that Mr. LeRoy’s analysis of Claimant’s employability more accurately reflects the fundamental nature of odd lot permanent total disability than Mr. Prinson’s does. Mr. LeRoy focused on the probability that Claimant would be able to compete successfully for jobs within his physical capabilities, and concluded that for him to do so would be highly unlikely. In contrast, Mr. Prinson focused on a few specific jobs for which Claimant conceivably might apply, and disregarded how improbable it would be, given his age, education, limited transferable skills, chronic pain and physical restrictions, for him actually to be hired.
12
10. Vermont’s workers’ compensation statute “is remedial in nature and must be liberally construed to provide injured employees with benefits unless the law is clear to the contrary.” Cyr v. McDermott’s, Inc., 2010 VT 19 at ¶7, citing St. Paul Fire & Marine Insurance Co. v. Surdam, 156 Vt. 585, 590 (1991). It would be a harsh result to deny an injured worker’s claim for permanent total disability benefits solely because the possibility exists, however slight, that he or she might someday find a job. The standard required by Rule 11.3100 is what is reasonably to be expected, not what is remotely possible.
11. I conclude that Claimant has sustained his burden of proving that as a result of his work injury he is unable to successfully perform regular, gainful work. This circumstance is unlikely to change even with the provision of further vocational rehabilitation services. Claimant is permanently and totally disabled.
12. Having concluded that Claimant is permanently and totally disabled, the question whether he is entitled to continued vocational rehabilitation services is now moot.
13. As Claimant has prevailed on his claim for benefits, he is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit his itemized claim.
13
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Medical benefits covering all reasonable and necessary treatment causally related to Claimant’s compensable neck injury, in accordance with 21 V.S.A. §640;
2. Permanent total disability benefits in accordance with 21 V.S.A. §645, with interest from the date indemnity benefits were last paid as computed in accordance with 21 V.S.A. §664; and
3. Costs and attorney fees in amounts to be determined, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 11th 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.

Michael Hathaway v. ST Griswold Company (June 11, 2014)

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

Michael Hathaway v. ST Griswold Company (June 11, 2014)
STATE OF VERMONT
DEPARTMENT OF LABOR
Michael Hathaway Opinion No. 04F-14WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
S.T. Griswold & Company
For: Anne M. Noonan
Commissioner
State File No. S-22188
RULING ON CLAIMANT’S MOTION FOR FINAL JUDGMENT
Claimant requests that the Commissioner enter final judgment in accordance with her March 17,
2014 ruling on Defendant’s Motion for Summary Judgment, so that he may take an appeal of the
issues decided therein to the Vermont Supreme Court, pursuant to 21 V.S.A. §672.
Procedural Background
In her prior ruling, Opinion No. 04-14WC, the Commissioner determined as a matter of law that
Defendant was not obligated either to provide vocational rehabilitation services to Claimant as a
consequence of his compensable low back injury or to reimburse him for wages he lost while
attending medical appointments necessitated by that injury. Summary judgment was therefore
granted in Defendant’s favor on those issues. The Commissioner also granted summary
judgment as to the third issue Defendant had presented – whether Claimant’s erectile dysfunction
was causally related to his compensable work injury. However, the ruling left open the
possibility that Claimant might still be entitled to workers’ compensation benefits as a
consequence of deficits in sexual function that could be referable to his injury-related low back
pain. As to this aspect of his claim, summary judgment in Defendant’s favor was denied,
therefore.
Pointing to the possibility that Claimant might yet be awarded additional benefits, Defendant has
objected to Claimant’s request for final judgment on the grounds that the Commissioner’s ruling
did not finally resolve all aspects of his workers’ compensation claim against it. Therefore, it
argues, any appeal at this point would be interlocutory in nature, and not justified under the
circumstances.
Discussion
Claimant cites to V.R.C.P. 54(b) in support of his request. That rule authorizes a court to “direct
the entry of a final judgment as to one or more but fewer than all of the claims or parties only
upon an express determination that there is no just reason for delay and upon an express direction
for the entry of judgment.”
2
I agree with Defendant that the more appropriate authority for evaluating Claimant’s request
derives from Vermont’s Administrative Procedures Act, 3 V.S.A. §§800 et seq. That statute
specifically exempts workers’ compensation proceedings from the requirements relating to how
administrative hearings are conducted, 3 V.S.A. §816(a)(3).1 However, workers’ compensation
proceedings are not exempted from the APA’s provisions as to the judicial review of contested
cases, 3 V.S.A. §815. That section reads as follows:
§815. Judicial review of contested cases
(a) A person who has exhausted all administrative remedies available within the
agency and who is aggrieved by a final decision in any contested case may
appeal that decision to the supreme court, unless some other court is expressly
provided by law. However, a preliminary, procedural or intermediate agency
action or ruling is immediately appealable under those rules if review of the
final decision would not provide an adequate remedy, and the filing of the
appeal does not itself stay enforcement of the agency decision. The agency
may grant, or the reviewing court may order, a stay upon appropriate terms.
The gist of Defendant’s argument is that because summary judgment resolved Claimant’s
entitlement to some, but not all, of the workers’ compensation benefits he claims are owed as a
consequence of his work injury, the Commissioner’s ruling was not a “final determination,” and
therefore not yet subject to appeal.
Careful reading of the Workers’ Compensation Act’s appeal provisions requires a different
interpretation. The appeal permitted, to either the superior court under 21 V.S.A. §670 or to the
supreme court under §672, is of the Commissioner’s “award” in cases where “the compensation
is not fixed by agreement.” 21 V.S.A. §§663(a) and 664; see also, §668 (modification of
awards) and 671 (findings for new award). As typically occurs, the statute thus envisions that as
a result of a single compensable injury a claimant may become entitled to a variety of benefits.
Some of these may be “fixed by agreement,” while others may require a hearing and “award” in
order to resolve. But nowhere does the statute require that all benefits must be either fixed by
agreement or awarded before an appeal can be taken.
Indeed, given the stages through which an injured worker often progresses following a workrelated
injury – from temporary total disability through medical treatment and vocational
rehabilitation, and then return to work and permanency – to impose such a limit on appeals
would be both impractical and unjust. In the time it might take for a claimant’s entitlement to
permanency benefits to ripen, a disputed vocational rehabilitation plan might become stale, or a
medical treatment window might close. Such a result would undermine both the “humane
purpose” for which the workers’ compensation statute was created, Herbert v. Layman, 125 Vt.
481, 485 (1966), and the “speedy and inexpensive” dispute resolution procedure that Workers’
Compensation Rule 7.1000 envisions.
1 In lieu of the process and procedure required under the APA, workers’ compensation proceedings are generally
governed by the Rules of Civil Procedure and Rules of Evidence, but “only insofar as they do not defeat the
informal nature of the [formal] hearing.” Workers’ Compensation Rule 7.1000.
3
In this case, two of the issues resolved in Defendant’s favor on summary judgment exist entirely
independently. Other than their relation back to his original compensable injury, Claimant’s
claims for vocational rehabilitation benefits and wage reimbursement do not share either a legal
or a factual basis. The Commissioner’s summary judgment ruling finally disposed of both
claims, such that no further administrative remedies are available to him in this forum. It is
appropriate to enter final judgment on these issues, so that Claimant can avail himself of the
appeal rights granted him by statute in a timely fashion.
Claimant’s right to appeal the third issue addressed by the Commissioner’s summary judgment
ruling – whether he is entitled to workers’ compensation benefits causally related to his erectile
dysfunction – stands on a different footing. The nature and extent of any benefits awarded on
account of his reported deficits in sexual function, whether due to erectile dysfunction per se or
alternatively, to his injury-related low back pain, remains to be seen. The Commissioner denied
summary judgment as to the latter theory of recovery, and thus, viewed in terms of a potential
award of benefits, summary judgment has not yet finally disposed of the issue. As Claimant has
not exhausted his administrative remedies, it would be inappropriate to enter final judgment.
ORDER:
1. The Commissioner having previously granted summary judgment in Defendant’s favor,
final judgment against Claimant is hereby entered as to his claim for vocational
rehabilitation benefits causally related to his June 14, 2002 compensable work injury, and
such claim is hereby DISMISSED.
2. The Commissioner having previously granted summary judgment in Defendant’s favor,
final judgment against Claimant is hereby entered as to his claim for wage reimbursement
under 21 V.S.A. §640(c), and such claim is hereby DISMISSED.
DATED at Montpelier, Vermont this 11th day of June 2014.
______________________
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.

Michael Hathaway v. ST Griswold & Company (March 17, 2014)

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

Michael Hathaway v. ST Griswold & Company (March 17, 2014)
STATE OF VERMONT
DEPARTMENT OF LABOR
Michael Hathaway Opinion No. 04-14WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
S.T. Griswold & Company
For: Anne M. Noonan
Commissioner
State File No. S-22188
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Corina Schaffner-Fegard, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant entitled to vocational rehabilitation services as a consequence of his
June 14, 2002 compensable work injury?
2. Is Claimant’s erectile dysfunction causally related to his June 14, 2002
compensable work injury?
3. Is Defendant’s workers’ compensation insurance carrier obligated under 21
V.S.A. §640(c) to reimburse Claimant for wages withheld by his current
employer?
EXHIBITS:
Claimant’s Exhibit 1: Letters from Drs. Hebert (December 23, 2013) and Campbell
(December 19, 2013)
Claimant’s Exhibit 2: Letters from Attorney McVeigh to Attorney Schaffner-Fegard
Claimant’s Exhibit 3: Dr. Hebert office notes, 1/15/13 and 5/4/12
Claimant’s Exhibit 4: Excerpts from Claimant’s deposition, November 28, 2011
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Defendant’s Exhibit A: Deposition of Claimant, November 28, 2011
Defendant’s Exhibit B: First Report of Injury, 6/14/2002
Defendant’s Exhibit C: Claimant’s Response to Requests to Admit, October 7, 2013
Defendant’s Exhibit D: Dr. Campbell response to August 15, 2013 letter from Attorney
McVeigh
Defendant’s Exhibit E: Dr. Campbell response to letter from William Chapman, 4/3/12;
Work Status Report
Defendant’s Exhibit F: Letter from Attorney McVeigh, July 8, 2010
Defendant’s Exhibit G: Medical records (CD)
Defendant’s Exhibit H: Wage statement with associated payroll detail, 12/5/11
Defendant’s Exhibit I: Letter from Dr. Bove, October 22, 2013
FINDINGS OF FACT:
Considering the evidence in the light most favorable to Claimant as the non-moving party, see,
e.g., State v. Delaney, 157 Vt. 247, 252 (1991), I find the following:
1. Beginning in 1999, Claimant worked for Defendant for a period of approximately nine
and a half years as a concrete construction laborer. His job duties included preparing
forms, tying rebar and assisting with other tasks around the job site. Claimant quit school
in the eleventh grade; he does not have a GED.
Claimant’s June 2002 Work Injury, Medical Course and Return to Work
2. On June 14, 2002 Claimant was at work, spotting a crane at the Fletcher Allen Health
Care “big dig” construction site. After hooking a concrete block to the crane and
signaling the crane operator to begin cabling up, his left foot became entangled in the tag
line. Claimant grabbed the line, so as to remain upright, and was lifted 20 feet in the air.
The line broke and he fell straight down, landing on his left foot.
3. As a result of this accident, Claimant suffered injuries to his left heel, left knee and lower
back.
4. Claimant was disabled for only three or four days following the accident. Upon returning
to work, his treating providers imposed a 75-pound lifting restriction. Thereafter, for the
remainder of his tenure with Defendant, Claimant’s job assignments focused less on
concrete work and more on lighter duty jobs. These included working as a crane rigger
and managing Defendant’s warehouse.
3
5. For some time after August 2002, Claimant treated only sporadically for his accidentrelated
injuries. In the fall of 2003, he underwent a physical therapy evaluation for
ongoing complaints of lower back and left heel pain, but did not attend follow-up visits.
In August 2004 he consulted with a chiropractor, but again did not pursue treatment.
Prior to being rehired following a layoff, in October 2004 Dr. Fitzgerald determined that
he was capable of working as a concrete laborer so long as he was restricted from lifting
more than 50 pounds frequently. There is no evidence that Defendant was unable to
accommodate this restriction.
6. In 2007 Claimant began treating for persistent left knee pain. Ultimately he was
diagnosed with a medial meniscus tear, for which he underwent arthroscopic repair with
Dr. Campbell, an orthopedic surgeon, in February 2009. Later, he suffered a recurrent
tear, which Dr. Campbell surgically repaired in November 2011. Defendant’s workers’
compensation insurance carrier paid the medical and indemnity benefits referable to both
surgeries.
7. Following first a layoff and then the sale of its business, Claimant’s employment for
Defendant terminated in 2008. In the spring of 2009 he began working for Engineers
Construction Inc. (ECI), another local concrete construction company. Claimant has
maintained continuous employment with ECI since that time. On average, he works nine
to ten hours daily. The work is year-round, without seasonal layoffs or other down time.
There is no evidence that Claimant is earning less money for ECI than he was when he
worked for Defendant.
8. After his first knee surgery, Claimant was totally disabled from working between
February and April 2009, at which point Dr. Campbell released him to return to work
without restrictions. After his November 2011 surgery, he was totally disabled until early
January 2012. Having initially released him to return to work in a modified duty capacity
(with limitations against squatting), Dr. Campbell cleared him to resume full-time, fullduty
work in April 2012. Aside from these two periods of disability, since beginning his
employment for ECI no medical provider has ever taken Claimant out of work or
otherwise restricted his activities on account of the injuries he sustained in June 2002.
9. In his deposition testimony, Claimant described his various job responsibilities at ECI.
These include tying rebar, scraping and oiling concrete forms, measuring, sizing and
building wooden forms, transporting materials via forklift, front loader or excavator and
cleaning up around construction sites. While performing these tasks, he occasionally has
to lift and carry pieces of rebar or plywood, rolls of tie wire, small bolts and tools, none
of which weighs more than approximately 40 pounds. Typically the construction site has
been back-filled to create a reasonably flat walking area, and whether working subgrade,
at ground level or on staging he is able to complete all tasks without having to kneel or
bend down.
10. Since returning to work after his second knee surgery, Claimant is no longer required to
lug the larger forms or set the actual rebar. His supervisors at ECI have assigned heavier
tasks to younger employees, leaving the “lighter bit of it” to him.
4
Suitability of Claimant’s Current Employment
11. As to the medical suitability of Claimant’s current job, Dr. Campbell responded “yes,”
without elaboration, to the following question, which Claimant’s attorney put to him in
an August 2013 letter:
[Claimant] is a construction worker and my question is whether it is
preferable for him from a medical standpoint to perform lighter duty work
– in particular working as a truck driver – than it is for him to continue in
his current line of work.
12. Dr. Campbell reiterated his opinion in a December 2013 letter to Claimant’s attorney, as
follows:
Please note it is my medical opinion that [Claimant] would benefit from
pursuit of his CDL (commercial driver’s license) and it would be best to
avoid his current line of work.
13. Dr. Hebert, who has been Claimant’s primary care physician since 2006, stated the
following in a December 2013 “To Whom It May Concern” letter:
[Claimant] has been a patient of my internal medicine practice for the last
8 years. This back pain started after an accident during work in 2001 [sic].
He was lifted by a crane and dropped from a large height. Since that time
he has had back and knee pain and evaluation by several specialists. It is
my medical opinion that [Claimant] would benefit from a job that is less
physically intense.
Erectile Dysfunction
14. Claimant first complained of problems with sexual function during an August 2003 visit
to Dr. Terrien, his primary care provider at the time. Dr. Terrien’s office note states as
follows:
Problem with erection since his injury. Also frequency of relations has ↓
from [approximately once per day] to once or twice a week. Interest also
has ↓.
15. Dr. Terrien’s plan was to “obtain x-ray report.” This reference is unclear. In any event,
from the medical records submitted, it does not appear that Claimant underwent any
follow-up evaluation or treatment with Dr. Terrien for these complaints.
5
16. In the context of a December 2007 independent medical examination with Dr. Backus,
Claimant reported, “Sex is troublesome because of pain.” In assigning an eight percent
whole person impairment rating referable to Claimant’s low back injury, Dr. Backus
specifically noted “significant limitations on normal [activities of daily living] to include
walking, sitting, lifting and even sexual function with pain radiating into his groin
(emphasis added) . . .”.
17. At Dr. Hebert’s referral, in May 2008 Claimant underwent a urology consult with Dr.
Jackson. Regarding the etiology of Claimant’s complaints, Dr. Jackson stated:
I am not sure as to the precise etiology of the patient’s erectile difficulties.
I think a significant neurovascular injury would not cause the partial
erectile dysfunction the patient is experiencing. Instead, I would expect a
more complete absence of significant erectile activity. I suppose he could
have a partial neurologic injury or may have some venous leak which has
been unmasked by some decreased inflow with age and/or adrenergic
overload secondary to his back pain.
18. As treatment, Dr. Jackson provided Claimant with samples of Viagra, Levitra and Cialis.
He also recommended that Claimant undergo testing to check his testosterone levels.
From the medical records submitted, it is unclear whether this occurred. At a follow-up
visit in November 2008, Claimant reported “reasonable results” with Cialis, but difficulty
obtaining insurance coverage for the medication.
19. In the course of a May 2012 office visit for elevated blood pressure, Dr. Hebert reported
as follows:
[Claimant] is also concerned about erectile dysfunction. He says he has
had this since his accident. He had a consult with Dr. Trotter in the past,
and Cialis helped, but it was not covered. He is questioning whether it
could be related to a workman’s comp issue.
20. Dr. Hebert’s stated plan was to refer Claimant for a urology consult, “to see if they feel
this could be a nerve injury from his accident, or whether it is related to his age, weight,
glucose of 103.”
21. At Dr. Hebert’s referral, in August 2012 Claimant underwent a second urology consult
for erectile dysfunction, this time with Dr. Sargent. Dr. Sargent reported that Claimant
had “minimal risk factors for arterial or neurogenic disease,” and that he discussed with
Claimant “the role of psychogenic factors.” At a January 2013 follow-up visit, Claimant
reported that Viagra “helps a little bit,” and also that “when he has [low back pain] during
sexual activity, [it] brings down [his] erection.” Dr. Sargent noted that Claimant was
pursuing treatment of his back pain, “which will most likely help with sexual activity.”
6
22. According to Defendant’s medical expert, Dr. Bove, Claimant’s presentation “seems
consistent with progressive erectile dysfunction based on a more limited arterial inflow in
a man who is in his mid-50’s and mildly obese.” In his opinion, the etiology of
Claimant’s dysfunction is more likely vasculogenic rather than neurogenically based,
meaning that it is not causally related to his 2002 work injury.
Lost Wages Attributable to Attendance at Medical Appointments
23. Claimant seeks to recover from Defendant a total of $189.60 in lost wages attributable to
his attendance at medical appointments necessitated by his work injury. Both
appointments occurred long after his employment for Defendant terminated and he began
working for ECI. Claimant used paid ETO (presumably, earned time off) for these
appointments, but has not otherwise demanded reimbursement from ECI.
DISCUSSION:
1. In order to prevail on a motion for summary judgment, the moving party must show that
there exist no genuine issues of material fact, such that it is entitled to a judgment in its
favor as a matter of law. Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25
(1996). In ruling on such a motion, the non-moving party is entitled to the benefit of all
reasonable doubts and inferences. State v. Delaney, 157 Vt. 247, 252 (1991); Toys, Inc.
v. F.M. Burlington Co., 155 Vt. 44 (1990). Summary judgment is appropriate only when
the facts in question are clear, undisputed or unrefuted. State v. Realty of Vermont, 137
Vt. 425 (1979).
2. A defendant who moves for summary judgment satisfies its legal burden when it presents
at least one legally sufficient defense that would bar the opposing party’s claim. Gore v.
Green Mountain Lakes, Inc., 140 Vt. 262, 266 (1981). Once a properly supported
summary judgment motion has been made, the non-moving party may not rest on mere
allegations in its pleadings. Pierce v. Riggs, 149 Vt. 136, 139-140 (1987). Rather, it
must respond with sufficient evidence to support a prima facie case. If an essential
element of the non-movant’s case cannot be established, summary judgment is
appropriate. State of Vermont v. G.S. Blodgett Company, 163 Vt. 175, 180 (1995).
3. Defendant here seeks summary judgment in its favor on three distinct issues. As to two
of these – whether Claimant is entitled to vocational rehabilitation services as a
consequence of his June 2002 work injury and whether his erectile dysfunction is
causally related to that injury – Defendant claims the evidence is insufficient as a matter
of law to support a ruling in Claimant’s favor. As to the third issue – whether Defendant
is obligated to pay Claimant for lost wages attributable to his attendance at medical
appointments – Defendant asserts that as a matter of law responsibility for those
payments rests not with Claimant’s former employer or its carrier, but rather with his
current employer.
7
Claimant’s Entitlement to Vocational Rehabilitation Services
4. Vermont’s workers’ compensation law makes the following provision for injured workers
whose functional restrictions preclude them from resuming their prior jobs after a workrelated
injury:
When as a result of an injury covered by this chapter, an employee is
unable to perform work for which the employee has previous training or
experience, the employee shall be entitled to vocational rehabilitation
services, including retraining and job placement, as may be reasonably
necessary to restore the employee to suitable employment.
21 V.S.A. §641(a).
5. Workers’ Compensation Rule 51.2600 defines “suitable employment” as follows:
“Suitable employment” means employment for which the employee has
the necessary mental and physical capacities, knowledge, skills and
abilities;
51.2601 Located where the employee customarily worked, or within
reasonable commuting distance of the employee’s
residence;
51.2602 Which pays or would average on a year-round basis a
suitable wage;1 AND
51.2603 Which is regular full-time work.2 Temporary work is
suitable if the employee’s job at injury was temporary and
it can be shown that the temporary job will duplicate
his/her annual income from the job at injury. (Emphasis in
original).
1 “Suitable wage” is defined as one that is as close as is reasonably attainable to 100 percent of the employee’s preinjury
average weekly wage. Workers’ Compensation Rule 51.2700.
2 “Regular full-time” employment is defined as a job that “at the time of hire was, or is currently expected to
continue indefinitely.” Workers’ Compensation Rule 51.2100.
8
6. Of note, neither the statute nor the rules require that an injured worker be returned to
specific employment in order for an employer’s vocational rehabilitation responsibilities
to be fulfilled. The goal of vocational rehabilitation is to restore earning skills, not
necessarily to procure a particular job. Bishop v. Town of Barre, 140 Vt. 564, 578
(1982); Wentworth v. Crawford & Co., 174 Vt. 118 (2002); Workers’ Compensation Rule
50.0000. Nevertheless, the workers’ compensation rules acknowledge that a claimant’s
successful return to suitable employment for at least 60 days is itself sufficient proof of
employability as to justify terminating vocational rehabilitation services. Workers’
Compensation Rule 56.1110; Morrisseau v. Hannaford Brothers, Opinion No. 21SJ-
12WC (January 10, 2013).
7. Considering the evidence in the light most favorable to Claimant, State v. Delaney, supra,
I conclude that, as currently comprised, his job at ECI fulfills the necessary requirements
of suitable employment as delineated in Rule 51.2600. It is within his mental and
physical capabilities, knowledge, skills and abilities. It is located in the same general
vicinity as his prior employment for Defendant. It pays a suitable wage as that term is
defined in Rule 51.2700, and constitutes regular full-time employment as defined in Rule
51.2100. Perhaps most important, it is a job that Claimant has proven himself fully
capable of performing for almost five years. With reference to Rule 56.1110, this in itself
is sufficient proof of suitable employment, and thus employability, to disqualify him from
entitlement to vocational rehabilitation services as a matter of law.
8. Claimant asserts that the opinions he has offered from Drs. Campbell and Hebert, Finding
of Fact Nos. 11-13 supra, constitute sufficient evidence to support at least a prima facie
case in favor of vocational rehabilitation entitlement. I disagree. What is required to
overcome summary judgment is evidence that, if found most credible at hearing, will
establish that Claimant’s current job is unsuitable, as that term is defined in Rule
51.2600. Here, although both doctors have stated that it would be preferable or beneficial
for him to pursue another line of work, neither has ever determined that he lacks the
necessary physical capacities to perform the tasks he is routinely assigned in his current
job.3 Their proffered opinions fall short of what Rule 51.2600 requires to trigger
vocational rehabilitation services, therefore.
3 Notably absent from both Dr. Campbell’s and Dr. Hebert’s opinion letters is any analysis of Claimant’s specific
job tasks at ECI, which Claimant himself acknowledged are less physically demanding than those assigned to his
younger coworkers. Had either expert undertaken such an analysis (preferably supported by a formal assessment of
Claimant’s functional capacities), this might have led them to conclude that his injury-related functional restrictions
render even those lighter duty tasks unsuitable. As it is, notwithstanding my obligation to award Claimant the
benefit of all reasonable doubts and inferences, State v. Delaney, supra, I cannot rely on evidence that does not yet
exist.
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9. With its focus on “suitable” rather than “preferable” employment in the vocational
rehabilitation context, Vermont’s workers’ compensation statute reasonably reflects the
compromise that underlies the general purpose of our law – to provide employees with a
speedy and certain remedy for their work-related injuries, St. Paul Fire & Marine
Insurance Co. v. Surdam, 156 Vt. 585 (1991), while at the same time guaranteeing to
employers a liability that is “limited and determinate,” Morrisseau v. Legac, 123 Vt. 70,
76 (1962). When a work-related injury occurs, the employer assumes responsibility for
restoring the injured worker’s current earning skills, hopefully by reassignment to the
same or modified duties. See Workers’ Compensation Rule 55.2000. Where, as here,
such efforts prove successful, the employer is not obligated to retrain the employee for an
alternative career path as well. Morrisseau, supra.
10. Even considering the evidence in the light most favorable to Claimant, I conclude that he
has failed to establish an essential element of his claim for vocational rehabilitation
services, that is, that his current employment is unsuitable. Summary judgment in
Defendant’s favor is therefore appropriate.
Compensability of Erectile Dysfunction
11. 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).
12. Claimant rests his claim for benefits related to his erectile dysfunction on Dr. Sargent’s
observation, in the context of his January 2013 evaluation, that he was pursuing treatment
of his back pain, “which will most likely help with sexual activity.” Finding of Fact No.
21 supra. Dr. Sargent’s comment followed Claimant’s report that his injury-related low
back pain sometimes affected his ability to maintain an erection during sexual activity.
13. Considering the evidence in the light most favorable to Claimant, Dr. Sargent’s comment
establishes a causal link between Claimant’s low back pain and his reported deficits in
sexual function. If the former is deemed causally related to the June 2002 work injury,4
then the latter reasonably might be considered a natural consequence flowing directly
from it, and therefore causally related as well. See 1 Lex K. Larson, Larson’s Workers’
Compensation §10 (Matthew Bender, Rev. Ed.) at p. 10-1.
4 It does not appear from the Department’s claim file that Defendant has ever formally accepted Claimant’s lower
back complaints as causally related to his June 2002 work injury. It denied responsibility for the condition in 2009,
though later it agreed voluntarily to pay for physical therapy on a without-prejudice basis.
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14. Of note, however, Dr. Sargent’s comment only serves to establish that Claimant’s sexual
dysfunction derives from his low back pain, not from any injury-related nerve damage
per se. It thus lends support to Dr. Backus’ impairment rating, Finding of Fact No. 16
supra, which included consideration of pain during sexual activity as an element of the
limitations attributable to Claimant’s low back injury. Neither Dr. Sargent nor any other
expert proffered an opinion that, if believed, would establish the compensability of a
neurogenically-based erectile dysfunction, however. On this question, therefore,
Claimant has failed to establish a prima facie case.
15. I conclude that there is no genuine issue of material fact as to whether Claimant’s erectile
dysfunction is causally related to nerve damage or other injury referable to his June 2002
accident at work. Therefore, Defendant is entitled to summary judgment on this issue.
However, I conclude that a genuine issue of material fact does exist as to whether
Claimant’s pain during sexual activity is causally related to his low back pain. Summary
judgment on this issue is inappropriate.
Wage Reimbursement under 21 V.S.A. §640(c)
16. The final issue raised by Defendant’s motion is purely a legal one – whether Defendant’s
workers’ compensation insurance carrier is obligated under 21 V.S.A. §640(c) to
reimburse Claimant for wages withheld by his current employer.5
17. In pertinent part, §640(c) states as follows:
An employer shall not withhold any wages from an employee for the
employee’s absence from work for treatment of a work injury or to attend
a medical examination related to a work injury.
18. When the injured worker has remained continuously employed by the same employer
from the time of the injury, throughout his or her treatment period and during any
subsequent examinations as well, the statute’s mandate is clear – the employer cannot
dock the employee’s pay for time missed while attending causally related medical
appointments. But where, as here, the employee has changed jobs in the interim, which
employer is responsible for ensuring that wages are not withheld – the one for whom the
employee worked at the time of the original injury, or the one for whom he or she is
currently working?
19. Claimant contends that the employer at the time of the injury should bear responsibility in
the first instance, and if, as here, it no longer exists, then responsibility should fall on its
workers’ compensation insurance carrier. As support, he cites to 21 V.S.A. §601(3),
which defines the term “employer” to include its workers’ compensation insurance
carrier “so far as applicable.”
5 As a preliminary matter, Defendant asserts that Claimant lacks standing to defend his current employer against a
claim for wage reimbursement under §640(c). While this may be true, he clearly has standing to assert a claim for
wage reimbursement against his prior employer and/or its workers’ compensation insurance carrier, which is how I
construe his position on the issue.
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20. Defendant points to the language of the statute as support for its assertion that the current
employer bears responsibility. A prior employer no longer pays wages, it argues, and
therefore cannot logically be barred from withholding them. As for extending the
statute’s mandate to the prior employer’s carrier, it asserts that a carrier is empowered
only to pay benefits, not wages. Again, therefore, the statutory prohibition against
withholding wages cannot logically apply.
21. The Legislature is presumed to use statutory language advisedly, “and with intent that it
should be given meaning and force.” Vermont State Colleges Faculty Federation v.
Vermont State Colleges, 138 Vt. 451, 455 (1980) (internal citations omitted). Individual
provisions must be construed in light of the entire statutory framework, Estate of Dunn v.
Windham Northeast Supervisory Union, 2012 VT 93, ¶8, citing Trickett v. Ochs, 2003
VT 91, ¶22, but a court “is not at liberty to read into the statute provisions which the
legislature did not see fit to incorporate.” Archer v. Department of Employment Security,
133 Vt. 279, 281 (1975), quoted with approval in Longe v. Boise Cascade Corp., 171 Vt.
214, 223 (2000).
22. Applying these rules of construction here, I find it significant that, in drafting the
language of §640(c), the Legislature chose to create a prohibition against “withhold[ing]
wages.” I agree with Defendant that a workers’ compensation insurance carrier has no
role to play with respect to paying wages to, or withholding wages from, an injured
employee. The carrier’s obligation is to pay “compensation,” or “benefits,” terms that in
the context of the Workers’ Compensation Act are not synonymous with wages.6 See,
e.g., 21 V.S.A. §§632 (death benefits), 642 (temporary total disability compensation),
645 (permanent total disability compensation), 646 (temporary partial disability
compensation) and 648 (permanent partial disability compensation). For that reason, this
is an instance where the statutory definition of “employer” under §601(3) logically
cannot be read to include its insurance carrier as well.
23. As for whether the prohibition against withholding wages applies to a current or former
employer, again the specific language of the statute is instructive. Section 640(c)
imposes its obligation on “an employer” not to withhold wages from an employee” on
account of “a work injury.” In contrast, in the sections noted above, the statute imposes
the obligation on “the employer” to pay indemnity benefits to “the injured employee” on
account of “the work injury.” Presumably the Legislature understood the difference
between the indefinite article “a,” which connotes a more generalized reference, and the
definite article “the,” which is meant to be more specific. See, e.g., State Farm Fire &
Casualty Co. v. Old Republic Insurance Co., 644 N.W.2d 715, 718 n.5 (Mich. 2002). In
this way, it signaled its intent to broaden the prohibition against withholding wages to
encompass an injured employee’s current employer.
6 As defined in the Act, the term “wages” signifies payments “which the employee receives from the employer as
part of his or her remuneration.” 21 V.S.A. §601(13). Considered in the context most applicable to their usage in
the statute, Merriam-Webster defines “compensation” as “payment to unemployed or injured workers or their
dependents,” and “benefit” as “a payment or service provided for under an annuity, pension plan or insurance
policy.” Merriam-Webster.com/dictionary.
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24. Claimant argues that it is unfair to impose the mandate of §640(c) on an employer who
bears no responsibility for the underlying injury. The Legislature’s authority to do so
derives specifically from the Vermont Constitution:
The General Assembly may pass laws compelling compensation for
injuries received by employees in the course of their employment resulting
in death or bodily hurt, for the benefit of such employees, their widows,
widowers or next of kin. It may designate the class or classes of
employers and employees to which such laws shall apply.
Vermont Constitution, Chapter II, §70 (emphasis added).
25. By using the language that it did in §640(c), the Legislature thus designated a class of
employer upon which to impose the obligation not to withhold wages. Viewed in the
context of a single case, the result may seem unfair. Viewed in the context of the system
as a whole, it is an effective means of spreading the risk across all employers. Today,
ECI must pay wages for time lost on account of an injury for which it was not
responsible. Tomorrow, a worker injured while in ECI’s employ will move on to another
job, and ECI will be absolved of responsibility under §640(c).
26. Vermont’s Workers’ Compensation Act is to be liberally construed to accomplish the
humane purpose for which it was passed; thus “no injured employee should be excluded
unless the law clearly intends such an exclusion . . . .” Herbert v. Layman, 125 Vt. 481,
485-86 (1966), quoted with approval in Montgomery v. Brinver Corp., 142 Vt. 461, 463
(1983). As the facts of this case show, were the prohibition against withholding wages
under §640(c) not imposed upon the current employer, Claimant would have no recourse
at all. Given the plain language of the statute, I cannot presume the Legislature intended
this result.
27. I conclude as a matter of law that Defendant’s workers’ compensation insurance carrier
cannot be held liable for reimbursing wages withheld from Claimant under §640(c), and
that Claimant’s claim for reimbursement lies, if at all, against his current employer.
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ORDER:
Defendant’s Motion for Summary Judgment is hereby GRANTED IN PART and DENIED IN
PART, as follows:
1. Summary judgment in Defendant’s favor is hereby GRANTED as to Claimant’s claim
for vocational rehabilitation services causally related to his June 2002 work injury;
2. Summary judgment in Defendant’s favor is hereby GRANTED as to Claimant’s claim
for workers’ compensation benefits causally related to his erectile dysfunction, but
DENIED as to Claimant’s claim for workers’ compensation benefits causally related to
pain during sexual activity; and
3. Summary judgment in Defendant’s favor is hereby GRANTED as to Claimant’s claim
for reimbursement under 21 V.S.A. §640(c).
DATED at Montpelier, Vermont this 17th day of March 2014.
___________________________
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.

Joanne Hurley v. NSK Corporation (March 4, 2009)

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

Joanne Hurley v. NSK Corporation (March 4, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Joanne Hurley Opinion No. 07-09WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
NSK Corporation
For: Patricia Moulton Powden
Commissioner
State File No. W-03503
OPINION AND ORDER
Hearing held in Montpelier on June 30, 2008 and October 20, 2008
Record closed on December 10, 2008
APPEARANCES:
Jonathan Cohen, Esq., for Claimant
Kaveh Shahi, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant permanently and totally disabled as a result of her October 2004 work-related injury?
2. If Claimant is not permanently and totally disabled, what is the extent of her permanent partial disability?
3. If Claimant is not permanently and totally disabled, is she entitled to vocational rehabilitation services?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Vocational rehabilitation records
Claimant’s Exhibit 1: Report of Accident, 10/27/04 (2 pages)
Claimant’s Exhibit 2: Job search record
Defendant’s Exhibit A: Surveillance video (CD)
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CLAIM:
Permanent total disability benefits pursuant to 21 V.S.A. §644; or
Permanent partial disability benefits pursuant to 21 V.S.A. §648; and
Vocational rehabilitation benefits pursuant to 21 V.S.A. §641;
Attorney’s fees and costs pursuant to 21 V.S.A. §678(a)
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was an employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
3. Claimant is high-school educated. Prior to working for Defendant, she was a licensed nursing assistant for more than fourteen years. Claimant has no other relevant training or work experience.
4. Claimant began working for Defendant, an automobile steering component manufacturer, in 1993. During her tenure there, Claimant worked in various positions on different assembly lines.
Claimant’s Injury and Initial Medical Treatment
5. In October 2004 Claimant was working on the “Mazda” line. As part of the assembly process she often had to hammer the steering columns either to the right or to the left in order to position them appropriately. As a result of this activity, Claimant began to experience pain and numbness in her hands. Claimant reported her symptoms to Defendant. Defendant accepted Claimant’s injury as compensable.
6. Claimant was diagnosed with bilateral carpal tunnel syndrome. In December 2004 Dr. Wheeler performed surgical releases bilaterally. Following the surgeries, Claimant returned to work full time, modified-duty in January 2005. By May 2005 she had been released to full duty work without restrictions.
Claimant’s Post-Surgical Course
7. Some of Claimant’s symptoms resolved with surgery, but over time she began to experience pain and pressure in her palms and shooting pains into her fingers. In January 2006 Defendant referred her to Dr. Lefkoe, a physiatrist, for evaluation and treatment. Claimant reported that her hands felt like “hoofs” and that her palms hurt all the time, particularly with direct pressure or percussion. Dr. Lefkoe noted that despite these symptoms Claimant was able to continue working full time and full duty.
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8. As treatment for Claimant’s ongoing symptoms Dr. Lefkoe prescribed Lyrica, a medication used to address neuropathic pain. Neuropathic pain is a burning pain caused by trauma to a peripheral nerve. It is different from the “typical” pain associated with carpal tunnel syndrome.
9. By June 2006 Dr. Lefkoe reported that while Claimant’s palms continued to ache most of the time, she had had no further episodes of sharp pain and was tolerating work on her regular assembly line well. Dr. Lefkoe advised Claimant to continue with Lyrica and to follow up with him as needed.
10. In July 2006 Dr. Wheeler determined that Claimant had reached an end medical result with 0% permanency. He reported that Claimant wished to build strength in her hands, but otherwise had full range of motion bilaterally and appeared “very alert and healthy and has good spirit.”
11. Unfortunately, by September 2006 Claimant again was reporting ongoing hand pain, a constant dull ache even at rest, and sharp shooting pains into her fingers with job tasks involving pushing, torquing and heavy lifting. At the referral of Defendant’s company physician, Dr. Timura, Claimant underwent a course of physical therapy to decrease her hand pain and increase her strength, but to no avail. The physical therapist reported that Claimant’s hands were so hypersensitive that she could not tolerate ice, massage or other desensitization therapies.
12. In October 2006 Claimant stopped working, as Defendant was unable to provide work within the modified-duty restrictions that Dr. Timura had imposed. In January 2007 Defendant terminated Claimant’s employment. Claimant has not worked since.
13. After physical therapy failed to alleviate Claimant’s symptoms, Dr. Timura next referred her to Dr. Mann, a psychologist, for evaluation. Dr. Mann is the director of the Occupational Disability Management Center (ODMC), a multidisciplinary rehabilitation program. In his initial evaluation, Dr. Mann observed that Claimant was “extremely focused on her hands” and maintained them in an unusual claw-like position throughout her interview, a sign that he interpreted as evidence of both physical and emotional decompensation. Dr. Mann attributed this behavior to Claimant’s ongoing hand pain and what she perceived to be a poor response to her prior carpal tunnel release surgeries. As he described it,
It is more than likely that Ms. Hurley feels intensely anxious, disappointed, angry and fearful towards her postoperative experiences. These feelings are not acceptable and remain suppressed. As a result physical symptoms increase and present dramatically. This is not a conscious amplification or symptom magnification mechanism. Ms. Hurley is a hardworking, loyal and conscientious employee. This clinician can find no evidence of overt secondary gain.
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14. Dr. Mann recommended Claimant’s entry into the four-week ODMC multidisciplinary program, to include both occupational therapy and behavioral medicine. At the conclusion of the program, in February 2007, Claimant’s occupational therapist reported that she had made significant functional progress. She did not maintain her hands in the protective cupped position as frequently as she had previously, she made significant progress in desensitization protocols and she exhibited a marked increase in her ability to use her hands for independent functioning. Despite these objectively observed gains, however, subjectively Claimant reported that she had made little progress. Dr. Mann attributed this discrepancy to Claimant’s “intense pain-oriented somatic focus.”
15. Also in February 2007, at her attorney’s referral Claimant was evaluated by Dr. Whittum, an orthopedist. Dr. Whittum observed various signs of complex regional pain syndrome (CRPS), including redness in the fingers and an abnormal sweating response. He noted that Claimant maintained her hands in a claw-like position and was exquisitely tender to any light touch in her palms, to the point where she held a Kleenex between her two wrists rather than with her fingers. Dr. Whittum diagnosed CRPS and concluded that Claimant was permanently and totally disabled.
16. Dr. Lefkoe reevaluated Claimant in April 2007. In contrast to his observations in June 2006, when he noted that Claimant was in no apparent distress and generally tolerating her residual symptoms well, this time Dr. Lefkoe reported marked dysfunction. Claimant held her hands in a guarded, cupped fashion and avoided even the lightest touch to her palms. In keeping with Dr. Whittum’s observations, Dr. Lefkoe noted that she used the backs of her hands to hold things, as she reported that any pressure to her palms resulted in shooting pains. Contrary to Dr. Whittum’s diagnosis, however, Dr. Lefkoe specifically noted the absence of various objective signs of CRPS. He observed no edema, no changes in color or temperature, no trophic changes in either hair or nails and no focal atrophy.
Activities of Daily Living
17. Claimant, her husband and her mother all testified as to the impact Claimant’s injury has had on her ability to perform activities of daily living. According to this testimony, Claimant’s hand function is severely restricted. She cannot manipulate small objects. She requires assistance washing her hair and bathing, and cannot manipulate buttons, tie her shoes or fasten her bra. She can use a fork, albeit with an altered grip, but not a knife. Family members leave bottle caps undone and jar lids unscrewed, because Claimant cannot twist or untwist them herself. She cannot lift anything heavier than a gallon of milk and she cannot close her hands to a full grip. She can drive, but only short distances. When she does so, she steers with her small fingers and the outsides of her wrists so as to avoid any pressure whatsoever on her palms. Any such touch causes her to experience shooting pains and pressure in her hands.
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18. Claimant presented at the formal hearing with her hands in a claw-like position, presumably to avoid touching anything with her palms. She used the outer surfaces of her wrists to hold a Kleenex and wrote with a large pen gripped between her thumb and small finger. Her appearance was in all respects consistent with both her own testimony and that of her family.
Permanent Partial Impairment
19. In his April 2007 reevaluation Dr. Lefkoe concluded that Claimant had reached an end medical result with a 6% whole person permanent impairment. In reaching this determination, Dr. Lefkoe testified that he rated only for the anatomical impairment attributable to residual carpal tunnel syndrome, not for any functional impairment attributable to Claimant’s other symptoms. As to those, in Dr. Lefkoe’s opinion Claimant’s inappropriate illness behavior and behavioral overlay obscured any objective findings.
20. Dr. Lefkoe also did not rate for CRPS. Referencing the specific diagnostic criteria required by Section 16.5(e) of the AMA Guides, he concluded that such a rating was not justified in Claimant’s case because she did not exhibit the requisite number of clinical and/or radiographic signs to support the diagnosis.
21. At her attorney’s referral, in May 2007 Claimant presented to Dr. Bucksbaum for a permanent impairment evaluation. Dr. Bucksbaum is board-certified in physical medicine, rehabilitation and pain management.
22. Dr. Bucksbaum diagnosed Claimant with a sympathetic mediated pain syndrome, essentially a type of CRPS, and rated her whole person permanent impairment at 57%. In rendering this impairment rating, Dr. Bucksbaum referenced Section 13.8 of the AMA Guides, the criteria for rating impairments related to chronic pain, rather than Section 16.5(e), the section specific to CRPS. The rating mechanism provided by Section 13.8 allows for consideration of a claimant’s functional impairment, for example, the extent to which he or she can use the involved extremity for self-care activities. In contrast, Section 16.5(e) focuses on loss of joint motion, sensory deficits and pain to determine the appropriate impairment value. Dr. Bucksbaum did not explain why the former criteria were more appropriate in Claimant’s case than the latter. Clearly in this regard his approach differed significantly from that taken by Dr. Lefkoe.
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Vocational Rehabilitation
23. Claimant was found entitled to vocational rehabilitation services in May 2007. Thereafter, she worked with Paul Langevin, a certified vocational rehabilitation counselor. Mr. Langevin developed a Return to Work Plan with a stated goal of Medical Social Worker, a sedentary work capacity job. As a step towards achieving that goal, Mr. Langevin recommended investigating adaptive technology equipment, such as voice-activated computer systems. He also recommended that Claimant undergo a thorough vocational assessment with a Certified Vocational Evaluator. Both Claimant and Defendant agreed to this plan.
24. In August 2007 Claimant underwent a vocational assessment with Iris Banks, a Certified Vocational Evaluator. Ms. Banks identified numerous vocational strengths that Claimant had demonstrated, including significant aptitude on measures of supervision, inspection, reasoning ability and customer service. Ms. Banks suggested that Claimant consider exploring vocational opportunities in such fields as health technology, quality control, retail supervision and medical records. In that context, Ms. Banks recommended that Claimant continue to explore assistive technologies such as voice-activated computer software and modified keyboards, as well as adaptive equipment to enhance her ability to drive.
25. In keeping with Ms. Banks’ recommendations, in November 2007 Mr. Langevin proposed an Amended Return to Work Plan, with added vocational goals of Medical Billing and Coding Specialist and Human Resources Assistant. To achieve these goals, Mr. Langevin proposed an assessment with a licensed speech therapist to evaluate whether Claimant would benefit from a voice-activated computer system, job shadow placements to determine if the stated vocational goals were viable and an occupational therapy evaluation to identify appropriate adaptive equipment for driving.
26. Defendant objected to Mr. Langevin’s proposed amended plan. It argued that the proposed plan amounted to nothing more than “a request for funding another round of assessments.” In Defendant’s view, the plan addressed only generic concerns, such as the ability to operate a vehicle or use a computer, without addressing any of the specific training Claimant likely would need to be able to work in the jobs identified for her.
27. In March 2008 Claimant changed vocational rehabilitation counselors, replacing Mr. Langevin with George Fotinopoulos. Shortly thereafter, in April 2008 Claimant underwent a Functional Capacities Evaluation with Charles Alexander, an occupational therapist. Mr. Alexander determined that Claimant had a sedentary work capacity, but that in terms of both quantity and quality of production she could not sustain the pace necessary for competitive employment. As to Claimant’s ability to participate in job retraining or education, furthermore, Mr. Alexander noted that Claimant’s ability to use her hands was so limited that she could not take notes, work on a keyboard or even carry books. In Mr. Alexander’s opinion Claimant would require significant accommodations to participate in any of these activities.
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28. In May 2008 Mr. Fotinopoulos discontinued vocational rehabilitation services to Claimant and closed her file. In his opinion, Claimant’s disability was too severe and her prognosis for successful return to work was highly unlikely. He believed her to be permanently and totally disabled.
29. That Mr. Langevin and Mr. Fotinopoulos approached Claimant’s vocational rehabilitation differently was evident from their testimony at formal hearing. Mr. Langevin testified that although his plan never progressed to the point of identifying specific employment offers, he anticipated that investigating assistive technologies and adaptive equipment would give Claimant a level of “hope, motivation and inspiration,” from which she could identify realistic job opportunities. He noted that Claimant had many vocational strengths – she was intellectually capable, a seasoned employee with a strong work ethic and supervisory experience – and that therefore such opportunities certainly might exist. Mr. Langevin felt that Claimant was “shortchanged” as a result of Defendant’s refusal to fund his proposed amended plan, and that in the end he had “no real opportunity” to work with her.
30. In contrast, Mr. Fotinopoulos testified that providing Claimant with “a carload of assistive devices” without identifying a particular job in which to use them was not likely to lead to successful vocational rehabilitation. The better course, according to Mr. Fotinopoulos, would have been to identify a particular job or employer first, and then determine if assistive technologies or adaptive equipment might work to fill in the gaps between Claimant’s functional abilities and the requirements of the job. Notably, however, Mr. Fotinopoulos testified that he conducted no such search for particular jobs prior to closing Claimant’s vocational rehabilitation file and concluding that she was permanently and totally disabled.
31. Dr. Bucksbaum also weighed in on the issue of vocational rehabilitation at the formal hearing. He testified that he was unwilling yet to conclude that Claimant was permanently and totally disabled, but characterized the possibility of her returning to work as “remote.” Doing so would require both vocational retraining and the appropriate job match.
Surveillance Video
32. Defendant presented a videotape at the formal hearing depicting surveillance taken of Claimant in February 2007. In the video, Claimant is observed at a local gas station pumping fuel into a 5-gallon container. She carries the container with what appears to be a normal grip, she manipulates the nozzle and then screws the cap back on when she is done. Next she is clearly observed to push the container into the truck bed using the palmar surface of her right hand. Perhaps most significantly, she then uses both hands to lift the tailgate and push it closed, palms visibly flat against it. There is no evidence of any claw-like position, no obvious pain behavior and no apparent avoidance of direct touch or pressure. In short, Claimant’s actions appear in every respect to be those of a person with normal hand function.
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33. Occupational therapist Alexander, Dr. Lefkoe and Dr. Mann all commented on the surveillance video; Dr. Bucksbaum was not asked to do so. Mr. Alexander acknowledged that Claimant appeared to have normal hand function in the video, but stated that nothing he viewed there affected the findings stated in his functional capacities evaluation in any way. Dr. Lefkoe testified that Claimant’s apparent ability to use her hands in the surveillance video was “significantly different” from her presentation in his office and inconsistent with a diagnosis of CRPS. Similarly, Dr. Mann testified that the video was “totally discordant” with his observations of Claimant over the course of her 4-week ODMC program. In his opinion, the video “clouded the picture” and caused him to rethink the possibility of symptom magnification and secondary gain.
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. Claimant asserts that as a result of her work injury she is now permanently totally disabled under the “odd lot” provision of 21 V.S.A. §644(b). Alternatively, she asserts that she is entitled to permanent partial disability benefits in accordance with Dr. Bucksbaum’s 57% impairment rating and further vocational rehabilitation services as well. As to the last, Defendant does not dispute Claimant’s entitlement to further vocational rehabilitation services, but claims that the last plan submitted did not comply with the applicable rules and therefore was unacceptable.
Permanent Total Disability
3. 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.
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4. 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 Capacity 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.
A claimant shall not be permanently totally disabled if he or she is able to successfully perform regular, gainful work. Regular, gainful work shall refer to regular employment in any well-known branch of the labor market. Regular, gainful work shall not apply to work that is so limited in quality, dependability or quantity that a reasonably stable market for such work does not exist.
5. A finding of odd lot permanent total disability is not to be made lightly. In a system that embraces successful return to work as the ultimate goal, and vocational rehabilitation as a critical tool for achieving it, to conclude that an injured worker’s employment barriers realistically cannot be overcome means admitting defeat, acknowledging that he or she probably will never work again. Gaudette v. Norton Brothers, Inc., Opinion No. 49-08WC (December 3, 2009). As Rule 11.3100 makes clear, such a finding should not be made until first, the injured worker’s physical capabilities are accurately assessed and second, all corresponding vocational options are comprehensively considered and reasonably rejected.
6. I find that Claimant has not met that standard here, for two reasons. First, in light of Claimant’s ability to use her hands as documented on the surveillance video I cannot help but question whether the true extent of her physical capabilities have been assessed accurately. Granted, the video represents only a brief snapshot in time. It depicts only actions, not symptoms such as pain or soreness, and therefore it very well may not tell the whole story. But there can be no doubt that Claimant’s presentation on that day was wholly different from what she subjectively reported, what her treatment providers noted and even what the hearing officer observed. As Dr. Mann remarked, the video “clouds the picture,” to the point where Claimant’s actual functional capacities and tolerance for activity is now ambiguous. This ambiguity precludes a finding of permanent total disability.
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7. Second, I am not convinced that Claimant has yet had the benefit of the full range of vocational rehabilitation services that, if provided, reasonably might lead to her successful return to work. Claimant has valuable job skills to offer, and with the appropriate adaptive equipment still might be able to translate those skills into regular, gainful work. It would be wrong to conclude that she is permanently and totally disabled until this avenue has been pursued more thoroughly. Gaudette, supra; R.C. v. Mack Molding, Inc., Opinion No. 16-07WC (July 3, 2007).
8. I conclude, therefore, that Claimant has not sustained her burden of proving permanent total disability.
Vocational Rehabilitation
9. Having determined that Claimant is not permanently and totally disabled, I must agree with Mr. Langevin’s assessment that she has been “shortchanged” in the vocational rehabilitation process to date. Defendant is correct, however, that under our system vocational rehabilitation planning must delineate the specific assistance required to meet a specific vocational objective. Workers’ Compensation Rule 33.1000. To the extent that Mr. Langevin’s plan fell short of this standard, it should be reworked accordingly.
10. As for Mr. Fotinopoulos, he proposed no vocational rehabilitation plan at all, instead concluding summarily that the barriers to Claimant’s re-employment were too significant to overcome. Yet overcoming employment barriers is at the very heart of a vocational rehabilitation counselor’s responsibilities. Gaudette, supra. Both Claimant and Defendant deserve a vocational rehabilitation counselor who is committed strongly to this ideal. Given the position he already has taken in this claim, it is questionable whether Mr. Fotinopoulos can provide that level of commitment.
Permanent Partial Impairment
11. As to the extent of Claimant’s permanent partial impairment, Drs. Lefkoe and Bucksbaum approached the issue from widely divergent perspectives. Dr. Lefkoe’s 6% whole person rating included only the impairment referable to Claimant’s residual carpal tunnel syndrome, with no accommodation for any other reduced hand function. In contrast, Dr. Bucksbaum’s 57% rating was based primarily on Claimant’s chronic pain and resulting functional inability to use her hands.
12. 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).
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13. Although Dr. Bucksbaum diagnosed CRPS, he did not rate in accordance with the section of the AMA Guides specific to that diagnosis, instead referring to the section on chronic pain. There is nothing in the record to explain why he did so. For that reason his rating lacks clarity. This is especially true given that the medical record fails to document sufficient clinical signs to meet the diagnostic criteria for CRPS. Beyond that, Claimant’s presentation on the surveillance video further compounds the problem. As noted above, in the video Claimant demonstrates an apparent ability to use her hands that is far beyond what Dr. Bucksbaum assumed in rendering his rating. I am left with a rating that may not fit either the facts or the Guides.
14. I find Dr. Lefkoe’s rating to be more credible. It is based solely on objective criteria and therefore is not affected by any uncertainty raised by Claimant’s presentation on the surveillance video.
Costs and Attorney’s Fees
15. As Claimant has not substantially prevailed, she is not entitled to an award of costs or attorney’s fees.
ORDER:
Based on the foregoing findings of fact and conclusions of law, it is hereby ORDERED:
1. Claimant’s claim for permanent total disability benefits is DENIED;
2. Claimant’s entitlement to vocational rehabilitation services having been established, the parties shall resume efforts to develop a suitable Return to Work Plan in accordance with Workers’ Compensation Rule 33.0000;
3. Defendant shall pay permanent partial impairment benefits in accordance with Dr. Lefkoe’s 6% whole person impairment rating, with interest from April 2, 2007.
DATED at Montpelier, Vermont this 4th day of March 2009.
______________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

D. P. v. McDermott’s, Inc. (September 5, 2008)

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D. P. v. McDermott’s, Inc. (September 5, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
D. P. Opinion No. 31C-08WC
By: Jane Gomez-Dimotsis
v. Hearing Officer
McDermott’s Inc. For: Patricia Moulton Powden
Commissioner
State File No. X-00980
DECISION REGARDING CLARIFICATION OF OPINION The Claimant has filed a Motion for Clarification of the previous decision in this case regarding the Vocational Rehabilitation Plan and the attorney’s fees awarded.
Mr. Langevin’s plan for a return to work for the Claimant was not approved. If he can continue to work with the Claimant in collaboration with the insurer regarding a new plan, he should do so. What might affect any plan is whether or not the spinal cord stimulator allows the Claimant to regain function so that his increased function would allow him to pursue employment opportunities which were available to him before his injury. In other words, less vocational rehabilitation might be needed depending on the Claimant’s abilities after the spinal cord stimulator is implanted. The Department is not aware at this time where the Claimant is in the process of having the spinal cord stimulator implanted and whether or not it was successful.
The Claimant’s benefits as of the date of the opinion are to be classified as TTD since he has not reached medical end result until the results of the stimulator are evaluated. The carrier should be notified if benefits do not accurately reflect dependents. You can do this through the attorney for the insurance carrier.
As for attorney’s fees, the Claimant did not prevail on the current return to work plan. The attorney’s fees granted in the amount of 2/3 of those requested remain the ruling in this case.
Dated at Montpelier, Vermont this 5th day of September 2008.
__________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

M. D. v. F. R. Lafayette (May 21, 2008)

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M. D. v. F. R. Lafayette (May 21, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
M. D. Opinion No. 21-08WC
By: Phyllis Phillips, Esq.
v. Contract Hearing Officer
For: Patricia Moulton Powden
F. R. Lafayette, Inc. Commissioner
State File No. Y-04643
OPINION AND ORDER
Hearing held in Montpelier on February 28th and March 13th, 2008.
APPEARANCES:
Frank Talbott, Esq. for Claimant
James O’Sullivan, Esq. for Defendant
ISSUE PRESENTED:
Whether Claimant’s June 29, 2007 injury arose out of and in the course of his employment, and if so, to what workers’ compensation benefits is he entitled.
EXHIBITS:
Joint Exhibits:
Joint Exhibit I: Medical Records
Joint Exhibit II: Nextel Phone Log
Joint Exhibit III: Daily Time Sheet
Joint Exhibit IV: Mike Wagner Statement
Joint Exhibit V: Doug Ford Memo
Claimant’s Exhibits:
Claimant’s Exhibit 2: Mapquest Map
Defendant’s Exhibits:
Defendant’s Exhibit A: Dr. Glassman Report, February 25, 2008
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CLAIM:
Temporary total disability benefits under 21 V.S.A. §642
Medical benefits under 21 V.S.A. §640(a)
Additional workers’ compensation benefits as proven
Attorney’s fees, costs and interest under 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings Claimant was an employee of Defendant and Defendant was an employer as those terms are defined by Vermont’s Workers’ Compensation Act.
2. Claimant has worked as a laborer for Defendant off and on for six years, his most recent stint beginning in 2006. Defendant is in the business of installing roadside guardrails, fencing, curbing and highway signage.
3. In June 2007 Claimant became the working foreman of a small work crew. In accordance with Defendant’s company policy, as foreman Claimant was assigned a company pickup truck to be used to carry tools, equipment and other crew members to and from the various job sites. Defendant performs roadwork throughout the state, and it often has its work crews assemble directly at a work site rather than report in to its Essex Junction home office, or “yard” first. Thus, it is not uncommon for a foreman to come to the yard at the end of one day, load up the pickup truck with materials for the following day’s job, then travel directly to the job site on the next day, picking up his crew members along the way.
4. The truck Claimant was assigned was a Ford F-150 crew cab pickup. As was the case with all of the foremen’s trucks, Claimant understood that it was a company vehicle and was not to be used for personal business. The truck was owned, serviced and maintained by Defendant.
5. Claimant testified that at some point after being assigned the pickup truck he began to smell exhaust fumes. He testified that Defendant’s mechanic had diagnosed a cracked manifold and had ordered a new one. In the meantime, Claimant continued to drive the vehicle.
6. On the morning of Friday, June 27, 2007 Claimant drove the pickup truck from his home in Highgate to the yard, where he loaded it with material for a job. Tony Daniels, a member of Claimant’s crew, then drove the truck to a job site to deliver the materials. Both men were back at the yard by 2:30 PM. Mr. Daniels left for the weekend at that point.
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7. At 2:30 PM Claimant began loading his pickup with materials for a small job he had been assigned in Richford by Doug Ford, Defendant’s president and co-owner. Claimant testified that he intended to go by himself to Richford that afternoon, work until dusk, and then return to finish the job on Saturday, when another employee, Mike Wagner, would be available to assist him. Mr. Ford contradicted this testimony, however. According to him, there would be no reason for Claimant to go to the Richford work site by himself on Friday evening, as it was a two-person job that would only take two hours to complete. Mr. Ford testified that it would have been “foolish” for him to pay for Claimant to drive to and from the Richford site on Friday evening, and then pay him again to return there on Saturday morning with Mr. Wagner. Rather, Mr. Ford intended for Claimant to load his truck with the Richford materials on Friday evening, drive home with them to Highgate and then travel directly to the job site on Saturday so that he and Mr. Wagner could take care of the job together.
8. In either event, on Friday afternoon Claimant and Mr. Wagner set about loading his pickup with the necessary materials for the Richford job. Claimant testified that after they had done so, he heard that Defendant’s mechanic needed the truck as he was planning to replace its cracked manifold on Saturday. Claimant and Mr. Wagner unloaded the Richford materials and reloaded them onto another, smaller company truck, a Silverado. Having done so, however, Defendant’s mechanic approached Claimant and advised that he would not be working on Claimant’s truck on Saturday after all. Claimant needed his truck for a job he was starting in Morrisville on Monday, one to which he would be driving directly from home and picking up crew along the way and therefore one for which the smaller Silverado would not do. Claimant had no choice, therefore, but to unload the Silverado and reload the Richford materials back onto his pickup.
9. Claimant testified that he turned in his time card for the week at around 3:30 PM, after he and Mr. Wagner had unloaded the Richford materials from his pickup truck and loaded them into the Silverado, but before he decided to reload them back onto his pickup. According to Claimant, it was sometime after 3:30 PM, therefore, when he finally finished working for the day.
10. Mr. Wagner testified that while he and Claimant were loading, unloading and then reloading Claimant’s pickup, Claimant received numerous cell phone calls. Claimant’s cell phone records document that he received a number of brief telephone calls, many from the same number, between 2:59 PM and 5:05 PM. Mr. Wagner testified that during some of these calls Claimant was yelling at whomever he was talking to and kept hanging up on the caller. To Mr. Wagner’s eye Claimant appeared to be arguing. Claimant had a more benign explanation, however. The caller was his civil union partner, Danny Wilson. Mr. Wilson was trying to keep Claimant abreast of arrangements he was making to pick up his aunt’s car in Burlington, but the cell phone signal was poor and the calls kept getting cut off.
11. Mr. Wagner testified that he and Claimant had finished loading, unloading and reloading Claimant’s pickup truck by about 3:30 PM. After that, Mr. Wagner recalled that Claimant left the yard and returned two or three times, the last time at about 4:45 PM.
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12. Claimant testified that he left the yard and returned once after he and Mr. Wagner finished reloading his pickup. After leaving initially, his partner Danny called to say he had run out of gas. Claimant returned to the yard to get a gas can. When Danny called back to advise he had found a jug for gas himself, Claimant left the yard again.
13. Claimant testified that after leaving the yard he proceeded to Route 7, where he traveled north towards Chimney Corners in Milton, a distance of about ten miles. By the time he reached Chimney Corners, he was feeling dizzy and nauseous. He pulled into a parking lot and vomited. Feeling somewhat better, he got back into his truck and proceeded onto Interstate 89, heading north towards Exit 20. This would have been the appropriate exit either to Richford, where Claimant testified he intended to work for a couple of hours in preparation for Saturday’s job, or to Highgate, where he lived.
14. Approximately three or four miles after entering the interstate from the Milton on-ramp, as he approached the bridge over the Lamoille River, Claimant drove his truck off the road, down a 100-foot embankment and into the river. Passing drivers immediately stopped and called for emergency assistance. By the time bystanders made their way down the embankment Claimant had extricated himself from the truck and was in the water.
15. Claimant testified that he has no recollection whatsoever of driving off the bridge. The last thing he recalls is driving on the interstate and approaching the knoll preceding the bridge, and then waking up in the water.
16. Claimant was transported by ambulance to Fletcher Allen Health Care, where he remained hospitalized for five days, until July 4, 2007. He sustained multiple left-sided rib fractures and a ligamentous cervical spine injury. As a result of these injuries Claimant was totally disabled from working at least until December 26, 2007. Claimant underwent a functional capacities evaluation on that date and was found to be capable of full-time work in the light to medium classification. This determination would not have allowed Claimant to return to work in his pre-injury job for Defendant, as that job is classified as involving heavy work.
17. As for current medical treatment, Claimant testified that he continues to attend physical therapy. He has been advised by his treating physician that he can return to work so long as he complies with the light- to medium-work restrictions recommended in the December 26, 2007 functional capacities evaluation. Claimant testified that he has been conducting a good faith search for suitable work since December 2007. He has submitted more than twenty job applications but has yet to be hired.
18. In August 2007 Danny Wilson began working at the McAllister goat farm in Highgate. Claimant admitted that he often accompanies Mr. Wilson to the farm, and either sits or walks around for exercise. More recently, Claimant has been assisting Mr. Wilson with feeding the baby goats. Claimant denied receiving any payment for helping Mr. Wilson with this chore and Defendant did not submit any evidence to establish that he did.
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19. The circumstances surrounding Claimant’s plunge off the interstate and into the Lamoille River remain unclear, and the parties each have posited a different explanation. Claimant’s theory is that he suffered carbon monoxide poisoning as a result of the truck’s cracked manifold and passed out from breathing exhaust fumes. This theory is undermined somewhat by the following facts:
• Both Claimant and Tony Daniels had driven Claimant’s pickup truck for as much as an hour and a half earlier in the day with no ill effects;
• Carbon monoxide poisoning was never diagnosed during Claimant’s hospitalization, nor did Claimant receive any treatment for it during his hospital course; and
• According to Defendant’s medical expert, Dr. Glassman, blood tests taken little more than an hour after Claimant’s accident showed his carboxyhemoglobin level to be within normal limits and well below the level required in order for carbon monoxide poisoning to be diagnosed.
20. Of note, Dr. Glassman’s report does not address how quickly a person might be overcome by carbon monoxide poisoning after being exposed to exhaust fumes and how long it might take for the level of carboxyhemoglobin in the blood to return to acceptable limits thereafter.
21. Defendant’s theory as to the cause of Claimant’s accident looks to emotional rather than physical factors. Defendant believes that Claimant was attempting suicide when he drove off the interstate bridge.
22. Defendant’s theory finds its primary support in two entries from Claimant’s hospitalization records. First is a note from a hospital resident, E. Blackburn, dated July 4, 2007, Claimant’s discharge date:
“Spoke with patient. He feels that he is safe to go home this pm. Ride is arranged. He denies any suicidal thought or intent to hurt himself or others. I have discussed this with social worker on call and charge nurse on floor. We will proceed with [discharge] home.”
23. Immediately following this note is an entry from another clinician, labeled “psychiatric consult contact note,” dated July 5, 2007:
“Called earlier (last eve) to eval patient for statements of a passive death wish nature. ‘I wish they didn’t rescue me from the water,’ and patient admitted to driving car off bridge with unclear circumstances. Told on-call resident Blackburn that psychiatric eval would not be done quickly given extremely busy psychiatric service and to delay discharge. Patient did not receive psychiatric eval and psychiatric resident not informed of patient’s discharge.”
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24. Defendant cites to a third record, a physical therapy database note stating that Claimant “lived with partner – now recently separated,” as providing the presumed basis for Claimant’s despondency – a breakup with Danny Wilson, his civil union partner. In that same context, Defendant points to Mr. Wagner’s observations of Claimant in the hour before he left the yard on the day of his accident, during which he witnessed Claimant yelling into the phone and repeatedly hanging up on Mr. Wilson. Defendant contends that the most reasonable inference from all of these facts is that Claimant became depressed and suicidal after fighting with Mr. Wilson and intentionally drove himself off the interstate bridge.
25. Claimant denied both that he was depressed or suicidal at the time of the accident and that he and Mr. Wilson had fought or were in the process of separating. He testified that his “I wish they didn’t rescue me from the water” comment was prompted by financial concerns. Claimant testified that a nurse had told him he would be laid up for six to twelve months. Pam Lafayette, one of Defendant’s principals, already had advised him that his accident would not be covered by workers’ compensation, and he did not understand that his group health insurance coverage would continue. Mr. Wilson was unemployed at the time, and Claimant was the sole source of income for the household. Claimant testified that he despaired at the prospect of a lengthy hospitalization with no insurance to cover his medical expenses and no income with which to pay the bills and support his family. He believed he was facing “financial ruin.”
26. As for the physical therapy database reference to Claimant having recently separated from his partner, both Claimant and Mr. Wilson testified credibly that this was not the case, that they had not fought on the day of the accident and that neither was contemplating separation. Other hospital records corroborate this testimony, stating that Claimant lives “with his partner, Danny.” Notably, as of the date of the formal hearing, nearly a year later Claimant and Mr. Wilson remain together.
CONCLUSIONS OF LAW:
1. Defendant alleges two barriers to compensability in this claim. First, Defendant argues that Claimant’s injury did not occur in the course of his employment, either because it occurred during his regular commute home or because it included a personal deviation. Alternatively, Defendant argues that Claimant’s accident resulted from his deliberate attempt to injure himself and therefore his claim is barred by 21 V.S.A. §649. Both of these arguments fail, the first one because it is not supported legally, the second because it is not supported factually.
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2. As a general rule, an employee is not entitled to workers’ compensation benefits if he or she is injured off the employer’s premises while “coming and going” to work. Brown v. S.D. Ireland Concrete Construction Corp., Opinion No. 02-04WC (January 21, 2004), citing 1 Larson’s Workers’ Compensation Law §13.01. There is an exception to this rule, however, if the employee performs some service for the employer while en route to or from work, thus providing a “dual purpose” for the journey. 1 Larson’s Workers’ Compensation Law §16.09. One instance in which such a dual purpose can arise is where the employee transports materials for the employer, thus saving the employer from having to make a special trip to do so. If the service thus provided by the employee is significant enough to benefit the employer, by facilitating the progress of the employer’s work, then an injury suffered during the commute is compensable. Id. at §16.09[4][b]. If the practice is a repeated and regular one, such that the employer comes to rely on it routinely, the rationale for applying the exception is even further bolstered. Id. at §16.09[4][d].
3. There is no dispute here that Claimant was transporting materials for the Richford job at the time of his accident, that he was doing so at Defendant’s direction and in accordance with its routine expectations and that Defendant directly benefited as a result. This is true whether Claimant was on his way directly to Richford to begin the job Friday evening, as he testified, or whether he was to go to Richford directly from his home in Highgate on Saturday morning, as Mr. Ford testified. In either event, Claimant furthered Defendant’s business purpose by carrying the Richford materials with him on Friday evening. Had he not done so, Defendant would have had to make less efficient arrangements to get the materials to the job site, either by having another employee deliver them or by having Claimant make a special trip to Essex Junction to get them on Saturday morning. Defendant would be hard pressed to deny the benefit that inured to it by having Claimant transport the Richford materials directly from home to the job site. The dual purpose nature of Claimant’s trip is thus clearly established. See Brailsford v. Time Capsules, Opinion No. 12-00WC (May 17, 2000) (citing the exception with approval but finding insufficient facts upon which to apply it).
4. Nor does it matter that Claimant may have not have started his commute home immediately after finishing work on Friday afternoon, but rather might have been delayed by personal phone calls or deviated to retrieve the gas can for his partner first. By the time the accident occurred, any personal deviation had ended and he had returned to the dual purpose nature of his commute. Id. at §14.07[4] and cases cited therein. The injuries he suffered as a result of that dual purpose trip occurred in the course of his employment.
5. As for Defendant’s argument that Claimant’s claim is barred under 21 V.S.A. §649 because he deliberately acted to injure himself, I find this defense factually unconvincing. It would be sheer conjecture to infer that Claimant was despondent and suicidal over a break-up with his partner on the basis of the meager evidence presented. Defendant had the burden of proof on this issue, and it failed to sustain it.
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6. Having established the compensability of Claimant’s injuries, it remains to determine the benefits to which he is entitled. The medical evidence as to Claimant’s disability from working until at least December 26, 2007 was uncontradicted. Defendant has produced no evidence of end medical result and no evidence to contradict Claimant’s assertion that he has been conducting a good faith search for suitable work since being released to do so by his doctor. Under 21 V.S.A. §642 Claimant is entitled to temporary total disability benefits from June 30, 2007 forward.
7. Claimant has submitted evidence of costs totaling $153.60 and attorney’s fees totaling $7,901.50. An award of costs to a prevailing claimant is mandatory under 21 V.S.A. §678, and therefore these costs are awarded. As for attorney’s fees, these lie within the Commissioner’s discretion. I find that they are appropriate here and therefore these are awarded as well.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is ORDERED to pay:
1. Temporary total disability benefits from June 30, 2007 forward, such benefits to continue until Defendant produces sufficient evidence to justify their discontinuance or until Claimant returns to work;
2. Interest on the above in accordance with 21 V.S.A. §664;
3. Medical benefits in accordance with 21 V.S.A. §640(a) covering all reasonably necessary medical services and supplies causally related to treatment of Claimant’s June 29, 2007 injury;
4. Permanent partial disability benefits as proven in accordance with 21 V.S.A. §648;
5. Vocational rehabilitation benefits as proven in accordance with 21 V.S.A. §641; and
6. Costs of $153.60 and attorney’s fees of $7,901.50.
DATED at Montpelier, Vermont this 21st day of May 2008.
_____________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670,672.

J. L. v. Prison Health Services (May 19, 2008)

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J. L. v. Prison Health Services (May 19, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
J. L. Opinion No. 19-08WC
By: Phyllis Phillips, Esq.,
v. Hearing Officer
Prison Health Services For: Patricia Moulton Powden
Commissioner
State File No. X-61277
OPINION AND ORDER
Hearing held in Bellows Falls on February 12th and 13th, 2008.
APPEARANCES:
Jennifer Moore, Esq. for Claimant
Richard Hennesey, Esq. for Defendant
ISSUE PRESENTED:
Whether Claimant suffered a compensable psychological injury as a result of extraordinary work-related stress, and if so, to what benefits is she entitled.
EXHIBITS:
Joint Exhibits:
Joint Exhibit I: Medical Records
Joint Exhibit II: Supplemental Medical Records
Claimant’s Exhibits:
Claimant’s Exhibit A: Excerpt from Prison Health Services contract
Claimant’s Exhibit B: Social Security Administration Explanation of Determination
Claimant’s Exhibit C: Social Security Administration Function Report
CLAIM:
Temporary total disability benefits under 21 V.S.A. §642
Medical benefits under 21 V.S.A. §640(a)
Vocational rehabilitation benefits under 21 V.S.A. §641
Attorney’s fees and costs under 21 V.S.A. §678
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FINDINGS OF FACT:
Claimant’s Personal and Medical History
1. Claimant obtained her GED in 1974 and has taken multiple college courses in the years since, most relating to accounting and bookkeeping. She has held a variety of jobs in her professional life, mostly administrative. With only minor gaps, she has been gainfully employed since her teenage years.
2. Claimant has a prior medical history of depression and anxiety. She was prescribed anti-depressants as a teenager, but took them for only a few days. She was not prescribed anti-depressants again until 1995, a year in which she divorced her husband, her mother died and she was injured in a motor vehicle accident that left her unable to work for a time. Claimant took anti-depressants for approximately 6 months to address her symptoms of anxiety and depression stemming from these events, and then stopped because she felt better.
3. Claimant has experienced intermittent episodes of depression and anxiety since 1995, all of which she has managed successfully with anti-depressant medications. At no time did these episodes cause panic attacks, keep her from leaving the house or render her unable to work.
4. Claimant also suffers from chronic low back pain stemming from a work-related injury in 1985. She controls her pain currently with non-narcotic analgesics. Previously she used narcotic pain medications, but weaned herself off these for fear of becoming overly dependent upon them. The medical records reflect that at times Claimant’s low back pain interferes with her sleep.
Claimant’s Work at Southern State Correctional Facility
5. Claimant began working at the Southern State Correctional Facility (SSCF), located in Springfield, Vermont, in November 2003, one month after the facility opened. At the time, Correctional Medical Services (CMS) held the contract with the State of Vermont Department of Corrections to provide medical services to the inmates at each of the state’s nine correctional facilities. CMS hired Claimant to be a medical records clerk/secretary at SSCF.
6. In January 2004 CMS promoted Claimant to the position of Regional Administrative Assistant. This position involved both supervisory and administrative support responsibilities. Claimant supervised CMS’ administrative assistants at all nine correctional facilities. Her job required her to collect and organize data from each site to be submitted to the state for auditing, and also to provide direct administrative support to her supervisors, Nancy Lawrence and Nancy Ellner. Claimant found the job challenging and stressful, but felt that she succeeded well in it.
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7. As she had at times in the past, during her tenure as Regional Administrative Assistant Claimant experienced episodes of stress, anxiety and depressed mood, which her primary care providers, first Dr. Biboso and then Dr. Leppman, treated with anti-depressant medications. The medical records relating to these episodes do not cite any particular inciting event or trigger for Claimant’s depressive symptoms, and they appear to have been relatively minor in both scope and degree. Notably, Dr. Leppman’s November 15, 2004 note states that Claimant’s depression was satisfactorily controlled with Zoloft, and reported that Claimant “is not having serious depression problems at this time, and is reliably and quite busily occupied, among other things, with her job . . . at SSCF.”
8. In February 2005 Defendant became the new medical services contractor for the state’s correctional facilities, the CMS contract having expired. As part of the transition, all CMS employees were required to reapply for employment with Defendant. In Claimant’s case, there was no equivalent job for which to apply, as Defendant’s organizational model did not include a Regional Administrative Assistant position. Instead, Claimant applied for and was hired as Program Manager to serve both the SSCF and Marble Valley (Rutland) correctional facilities.
9. Under Defendant’s organizational model, the responsibility for providing medical services at each correctional facility in accordance with the state contract was split along clinical versus administrative lines between the Nurse Manager and the Program Manager. The Nurse Manager’s responsibilities were primarily clinical and included training and supervising the nursing staff, ensuring that inmate “sick call” requests were addressed in a timely manner and that medications were safeguarded and dispensed appropriately, managing chronic care issues, and filling in when necessary for nurses who called in sick. The Program Manager’s responsibilities were primarily administrative, and included ordering supplies and paying bills, completing payroll, coordinating medical staff scheduling, recruiting and interviewing potential hires, addressing personnel issues and generally managing the day-to-day activities of the facility’s medical services program.
10. Significantly, in addition to managing the program’s daily affairs, the Program Manager also was held accountable for ensuring compliance with various aspects of Defendant’s contract with the state. For example, it was the Program Manager’s duty to make sure that contractually required staffing levels were maintained and that inmate sick calls were addressed within the contractually required time frame. The state contract provided for costly penalties to be assessed on a daily basis in the event of non-compliance and with that in mind Defendant strenuously emphasized this aspect of the Program Manager’s job.
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11. The Springfield facility is different in many important respects from the other correctional facilities in the state and as a consequence Claimant’s job as Program Manager at SSCF involved challenges not faced by her counterparts in other locations. For example:
• SSCF is the only designated correctional facility in the state for inmates with special medical needs. It houses the largest concentration of inmates with chronic illnesses, such as diabetes, and maintains the largest infirmary for acutely ill inmates as well. It also is the only designated psychiatric unit in the state. There is an on-site dental clinic and an on-site x-ray. SSCF also is the medical records depository for all nine state correctional facilities.
• Given its emphasis on serving inmates with special medical needs, SSCF’s medical staffing requirements are significantly more extensive than they are at Vermont’s other correctional facilities. In addition, providing appropriate medical care to the inmate population at SSCF requires that more outside medical consultants be retained and available.
• Unlike other correctional facilities in the state, SSCF was built with a campus-type housing layout rather than a single, self-contained prison housing unit, which poses unique security issues for all staff, including medical services staff.
• SSCF is the newest correctional facility in the state, having opened only one month before Claimant began working there. As such, its staffing needs were not yet fully understood and its own identifiable culture had not yet developed during Claimant’s tenure there. With its emphasis on serving that portion of Vermont’s inmate population with special medical needs, SSCF is also a high-profile facility, with much at stake for its effective and efficient operation.
12. Claimant testified that in her view the SSCF Program Manager position represented the culmination of years of training and experience. She was proud of her increased managerial responsibilities and pleased with the opportunity to be more than just support staff. She loved her job and took her responsibilities very seriously.
13. Although Defendant initially contemplated that Claimant would serve as Program Manager at both SSCF and at Marble Valley Correctional Center, it soon became apparent that Claimant’s responsibilities at SSCF were so extensive as to preclude her from splitting her time with Marble Valley. Ultimately Defendant hired a full-time Program Manager for that facility.
14. Unlike the Program Managers at other facilities with similarly sized inmate populations, Claimant had no administrative support staff to assist her in fulfilling her Program Manager duties. Defendant initially had assigned a part-time administrative assistant to Claimant, but reallocated this position to another facility after only two weeks.
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15. As noted above, Defendant’s organizational model contemplated that in each facility the Program Manager and the Nurse Manager would work together to ensure that all inmates’ medical needs were met appropriately and in accordance with the state contract. Unfortunately, Katie Aiken, the Nurse Manager at SSCF during Claimant’s tenure, was inexperienced and lacked the necessary skills to be an effective member of the management team. Claimant’s ability to meet her own job expectations suffered markedly as a result.
16. For example, Ms. Aiken often failed to provide Claimant with the clinical data Claimant needed to prepare the daily audit reports required by the state contract in a timely manner. When the reports were not filed on time, it was Claimant who was held accountable under the state contract, not Ms. Aiken.
17. Ms. Aiken’s supervisory style, which was confrontational and unprofessional, also directly impacted Claimant’s job performance. Clinical staff morale suffered under Ms. Aiken’s management, and it became increasingly difficult to attract and retain nurses. Staffing shortages resulted, for which Claimant, as Program Manager, was held accountable according to the state contract. Claimant testified that on at least one occasion her supervisors “fudged” a staffing report so as to avoid incurring a contract penalty. This made Claimant most uncomfortable.
18. Ms. Aiken also was explosive towards Claimant. On one occasion she screamed so loudly at Claimant during a confrontation that a prison security guard came to investigate.
19. Claimant testified that Ms. Aiken did not train her nursing staff adequately and did not uniformly enforce important security regulations. She was aware of, but did not discipline, nurses who had improper contacts with inmates. She tolerated nurses who did not comply with the rules as to storing and dispensing narcotic medications, and then lied about the fact to a state Nursing Board investigator. This too made Claimant very uncomfortable.
20. Claimant received little support from management in her efforts to deal with Ms. Aiken’s deficiencies. She had no authority herself to discipline Ms. Aiken and Ms. Aiken’s supervisor, Nancy Lawrence, was reluctant to take any action.
21. Claimant’s testimony as to the problems posed by Ms. Aiken’s ineffectiveness as Nurse Manager was corroborated by that of Richard Frank, R.N. Mr. Frank worked in the state’s correctional facilities system from 2002 until January 2006, first for CMS and then for Defendant. From 2002 until 2005, Mr. Frank was the out-of-state coordinator, responsible for ensuring timely medical clearances for inmates being sent from Vermont correctional facilities to out-of-state prisons. In that role, he had occasion to interface directly with the Nurse Managers at all of the state’s facilities and therefore was well-qualified to compare and contrast Ms. Aiken’s abilities with those of her peers elsewhere in the state. After the CMS contract expired, in 2005 Defendant hired Mr. Frank to be the Nurse Manager at the Marble Valley facility.
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22. Mr. Frank was involved in the interview process leading up to Ms. Aiken’s employment at SSCF. Because she had neither management nor corrections experience, Mr. Frank had recommended that she be hired as a charge nurse. When she was hired to be the Nurse Manager instead, Mr. Frank was asked to stay in close contact and mentor her.
23. Mr. Frank testified that SSCF was the only correctional facility in the state with an inexperienced Nurse Manager and that Claimant’s job was made more difficult as a result. Mr. Frank testified that Ms. Aiken had poor time management skills, and therefore relied on Claimant to complete reports that were Ms. Aiken’s responsibility to prepare. She was ineffective at training her nursing staff on such important issues as medical security and inmate interactions, to the point where Mr. Frank was asked at times to assume responsibility for this important function. On at least one occasion Mr. Frank personally observed Ms. Aiken to be unprofessional in her dealings with the nursing staff, and on a few occasions he witnessed her arguing with Claimant. Mr. Frank credibly testified that Ms. Aiken’s explosive style and managerial inexperience contributed to the low staff morale and high staff turnover at SSCF as compared with the state’s other correctional facilities.
24. Mr. Frank testified that both as a result of Ms. Aiken’s disruptive presence and because of the unique characteristics of SSCF as the state’s largest medical facility, Claimant’s job as Program Manager was significantly more burdensome than that of Program Managers at the state’s other correctional facilities. He stated that the stress level at SSCF was “palpable” whenever he entered the facility.
25. Claimant’s testimony as to the stresses she encountered as Program Manager at SSCF also was corroborated by Dr. Leppman’s testimony. In addition to being Claimant’s primary care provider, Dr. Leppman is the medical director at SSCF. He is on-site at the facility one and a half days per week, and maintains frequent telephone contact with the staff there on other days. Dr. Leppman generally concurred with Mr. Frank’s depiction of the stress level at SSCF, both as a result of the facility’s unique role in the state’s correctional system and as a result of Ms. Aiken’s disruptive presence. He testified that although his own interactions with Ms. Aiken were not particularly difficult, he was aware that Ms. Aiken had personality conflicts with other medical staff employees, including Claimant.
26. Claimant testified that by June 2005 she was under so much stress that she was having heart palpitations, crying bouts and panic attacks. She had difficulty sleeping, and would lay awake thinking about all the tasks that she needed to complete at work. Claimant had been taking anti-depressant medications since May 2004, but testified that they were no longer working. Her symptoms were more extreme and intense than any she had experienced previously.
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27. Matters came to a head on June 17, 2005, a Friday. Claimant had another argument with Ms. Aiken, during which Ms. Aiken stated that she was giving her notice and leaving. When Claimant relayed this information to Nancy Lawrence, their supervisor, Ms. Lawrence ordered Claimant to persuade Ms. Aiken to return to work. Claimant testified that she was shaking, crying and panicked, and felt that she could not take any more. She decided to resign and wrote a notice to that effect. The following Monday, June 20, 2005 Claimant was summoned to a meeting with Ms. Aiken and both of their supervisors, Ms. Lawrence and Ms. Ellner. When she entered the facility, she encountered Ms. Aiken, who was visibly angry. Claimant became frightened and left without attending the meeting. She has not been back since.
Claimant’s Medical Course and Current Status
28. Claimant presented to Dr. Leppman, her primary care provider, on June 20, 2005, the day of the aborted meeting with Ms. Aiken and the supervisors. The tenor of Dr. Leppman’s record of this office visit contrasted starkly with his November 2004 office note, in which he had stated that Claimant’s depression was not serious and was adequately controlled with anti-depressant medications. This time Dr. Leppman reported that Claimant was feeling extremely stressed as a result of her job and noted that she was visibly anxious. As treatment Dr. Leppman prescribed increased dosages of anti-depressant medications.
28. As Claimant’s primary care provider, Dr. Leppman has continued to observe and treat her psychological symptoms along with other general health issues that have arisen, including her chronic low back pain. Dr. Leppman testified that Claimant’s mental health was markedly worse after June 2005 as compared with what he had observed on prior visits. Dr. Leppman described Claimant’s psychological state as having been stable as of November 2004, her depression well controlled with anti-depressant medications. In his opinion, the circumstances of Claimant’s job, and the attendant stresses it engendered, aggravated her pre-existing depression to the point where she was unable to work.
29. In March 2006 Claimant began treating with Dr. Salam, a psychiatrist. Dr. Salam’s treatment notes reflect various possible diagnoses, including bipolar disorder, adjustment disorder with mixed depression and anxiety, and mood disorder. Claimant treated with Dr. Salam until January 2007. During this period Dr. Salam reported a variety of stressors in Claimant’s life, including not only those related to the work environment at SSCF and its psychological aftermath but also financial pressures, worries about her children, and ongoing problems with chronic low back pain.
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30. In June 2007 Claimant began treating with Dr. Edelstein, another psychiatrist, as Dr. Salam had moved away. Dr. Edelstein diagnosed recurrent depression, causally related to the work stress Claimant had encountered at SSCF. He acknowledged that Claimant was predisposed to recurrent bouts of depression by virtue of her traumatic childhood, her history of depressive episodes in the past and ongoing psychological stressors in her life, including family issues and chronic back pain. The episode of depression she experienced beginning in June 2005, however, was more intense, more severe and, for the first time in her life, disabling. In Dr. Edelstein’s opinion Claimant’s job was the most extraordinarily stressful issue facing her at the time of this major depressive episode. To his mind, therefore, work-related stress was what caused the episode to occur with such severity.
31. Dr. Edelstein testified that Claimant has responded well to changes in her anti-depressant medication regimen and that as of the last time he saw her, January 8, 2008, she no longer was temporarily totally disabled.
32. At Defendant’s request, in January 2008 Claimant underwent an independent medical evaluation with Dr. Willmuth, a forensic psychiatrist. Dr. Willmuth disagreed with Dr. Edelstein’s assessment that extraordinary work-related stress caused Claimant to suffer an episode of recurrent depression in June 2005. In her opinion Claimant suffered from bipolar disorder and experienced a manic episode in June 2005. According to Dr. Willmuth, Claimant’s pre-existing susceptibility to depression and anxiety combined with certain aspects of her personality to render her unable to succeed in the demanding job she had taken on. Her inability to do so in turn fed her anxiety to the point where it became disabling. Simply put, in Dr. Willmuth’s opinion Claimant found herself in a job that was not right for her and became overwhelmed by it.
33. Dr. Willmuth acknowledged in her testimony that work stresses likely contributed to the heightened state of anxiety and depression Claimant experienced in June 2005. She noted that a person’s mental state represents a cumulative package of personality makeup, psychological history and concurrent life stressors. It is impossible to pinpoint one stressor as the cause of a depressive episode, therefore, because multiple stressors are always present. Thus, when asked if Claimant’s work environment was the trigger for the episode of recurrent depression that began in June 2005, Dr. Willmuth had no answer.
34. Both Dr. Willmuth and Dr. Edelstein agreed that Claimant was unable to work as a result of her psychological condition from June 17, 2005 until January 8, 2008.
35. Claimant testified that although she feels capable of returning to work now, she does not intend to seek a managerial position, as she does not want to risk endangering her psychological health again. No evidence was submitted as to whether given her educational background and employment history Claimant is entitled to vocational rehabilitation benefits.
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CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. In the current claim Claimant alleges that the stress to which she was subjected at work caused a psychological injury that disabled her from working, a so-called “mental-mental” claim. For such a claim to be compensable, Claimant first must show that the workplace stress she faced was significant and objectively real. Bluto v. Compass Group/Canteen Vending, Opinion No. 11-02WC (February 25, 2002). In addition, she must establish that the stress was unusual or extraordinary, that it amounted to something “of significantly greater dimension” than that encountered by other similarly situated employees in the same general field performing the same or similar work. Crosby v. City of Burlington, 176 Vt. 107 (2003); Bedini v. Frost, 165 Vt. 167 (1996).
3. The Vermont Supreme Court has explained in some detail the basis for applying a stricter compensability standard to mental-mental claims than the one used for claims involving a physical injury. Crosby, supra; Bedini, supra. Suffice it to say, the Court has concluded that it is reasonable to place the burden on an employee “to deal with the normal strains of his or her occupation through training, temperament and experience.” Crosby, supra at ¶23. It is only when those strains become extraordinary as compared with the control group of other similarly situated employees that a compensable claim results. See Eggum v. County of Orange, Opinion No. 9-05WC (January 20, 2005) (deputy court clerk subjected to greater stress than that experienced by similarly situated court clerks).
4. I find that Claimant has sustained her burden of proof here. She has established that the workplace stress she faced in her job at SSCF was both objectively real and extraordinary as compared with the stress encountered by the Program Managers at other correctional facilities. This was due not only to SSCF’s unique position as the state’s primary medical facility, but also to Ms. Aiken’s inadequacies as Nurse Manager. The confluence of these two factors resulted in a perfect storm of extraordinary stress. Claimant faced a significantly greater workload than her counterparts at other facilities – more inmates with serious medical needs and therefore more staff to recruit, hire, retain and coordinate – at the same time that she had to cope with a co-manager who was inexperienced, ineffective and disruptive. Were those conditions not stressful enough, Claimant was forced to manage without either administrative support from below (as most other Program Managers had) or responsive supervisory backing from above.
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5. I further find that the extraordinary work-related stress to which Claimant was subjected triggered her disability and precluded her from working from June 17, 2005 until January 8, 2008. The fact that this work stress occurred in the context of Claimant’s pre-existing personality makeup, prior psychological history and consequent susceptibility to depression and anxiety does not shield Defendant from liability, any more than it would were this a physical injury claim rather than a psychological one. As the Supreme Court noted in Bedini, claimants with pre-existing psychological conditions can still receive compensation, so long as they show that their disability was triggered by extraordinary work-related stress. Id. at 170 and footnote 2.
6. I find that there is insufficient evidence from which to determine whether Claimant is entitled to vocational rehabilitation benefits. At a minimum, however, Defendant is obligated to conduct the appropriate screening and/or entitlement assessment in accordance with 21 V.S.A. §641 and Workers’ Compensation Rules 30.0000 and 32.0000.
7. Claimant has submitted evidence of costs totaling $1,128.70 and attorney’s fees in accordance with her contingency fee agreement. An award of costs to a prevailing claimant is mandatory under 21 V.S.A. §678, and therefore these costs are awarded. As for attorney’s fees, these lie within the Commissioner’s discretion. I find that they are appropriate here, subject to the limitations of Workers’ Compensation Rule 10.1220 – 20% of the compensation awarded or $9,000.00, whichever is less.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is ORDERED to pay:
1. Temporary total disability benefits from June 17, 2005 through January 8, 2008;
2. Medical benefits in accordance with 21 V.S.A. §640(a) covering all reasonably necessary medical services and supplies causally related to treatment of Claimant’s June 17, 2005 injury;
3. Vocational rehabilitation benefits in accordance with 21 V.S.A. §641, subject to determination of entitlement under Workers’ Compensation Rules 30.0000 and 32.0000; and
4. Costs of $1,128.70 and attorney’s fees in accordance with Workers’ Compensation Rule 10.1220.
DATED at Montpelier, Vermont this 19th day of May 2008.
_____________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670,672.

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