Archive

Tag Archive for: vocational rehabilitation

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

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

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.
2
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.
3
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.
4
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.
5
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).
6
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.
7
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 20, 2007)

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

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

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.

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)
2
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.
3
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.
4
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.
5
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.
6
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.
7
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.
8
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.
9
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.
10
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).
11
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.

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

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

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
2
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.
3
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.
4
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.
5
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.”
6
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.
7
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.
8
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)

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

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
2
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.
3
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.
4
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.
5
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.
6
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.
7
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.
8
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.
9
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.
10
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.
11
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.

G. C. v. The Fonda Group Inc. (January 8, 2008)

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

G. C. v. The Fonda Group Inc. (January 8, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
G. C. Opinion No. 37-07WC
By: George K. Belcher
Hearing Officer
v.
The Fonda Group, Inc. For: Patricia Moulton Powden
Commissioner
State File No. S-13358
OPINION AND ORDER
Hearing held in Montpelier on November 7, 2006. Preservation depositions were conducted on February 21, 2007 (Dr. Johansson), August 13, 2007 (Dr. Dulaney) and April 9, 2007 (Dr. Backus). The record was closed on September 13, 2007.
APPEARANCES:
Christopher J. McVeigh, Esq., for the Claimant
Marion T. Ferguson, Esq., for the Defendant
ISSUES PRESENTED:
1. Did the Claimant reach a medical end result on March 4, 2004 or on August 28, 2006, or at some other date?
2. Were the prolotherapy treatments rendered to the Claimant in this case reasonable and compensable medical treatments?
3. Should the Defendant be ordered to pay for the Claimant’s college expenses as a reasonable vocational rehabilitation plan?
EXHIBITS:
Joint: Medical Exhibit
Deposition of Dr. Johansson, DO, dated 21 February, 2007 and exhibits therein
Deposition of Dr. Backus, MD, dated April 9, 2007 (original unsigned)
Deposition of Dr. Dulaney, MD dated August 13, 2007 (original unsigned)
Claimant’s Exhibit: Statement of Attorney’s Fees, Costs, and Fee Agreement
Defendant’s Exhibit A: College transcript of the Claimant
2
FINDINGS OF FACT:
1. The Claimant was born on November 30, 1959. She has held a number of different types of employment over the years, including EMT work, office work, automobile repair, waitressing, and surveying work. She worked for a time as a substitute teacher until 2001, at which time the Defendant employed her. As a substitute teacher she earned approximately $55.00 per day.
2. The Claimant’s job with the Defendant was as a machine operator in a plant which made paper products. On November 19, 2001, she was operating a large machine when she struck her head on an overhead ladder. She cut her scalp and fell on her buttocks. On the date of the injury, the Claimant was an employee within the definition of the Vermont Workers’ Compensation Act and the Defendant was an Employer within the meaning of the same Act.
3. Following her injury, the Claimant began a long course of medical treatments involving the following medical providers: Dr. Carol Thayer (primary care physician); Dr. Rayden Cody; Dr. Jerry Tarver (pain therapy and nerve blocks); Dr. Robert D. Monsey (orthopedic surgeon at the Spine Institute); Dr. Claude E. Nichols, III (orthopedic surgeon); Dr. Raymond Long (orthopedic surgeon); Dr. Eugene Dulaney (neurologist); Dr. Verne Backus (practitioner of occupational and environmental medicine); Dr. Jonathan Fenton (therapist for neuro-musculoskeletal pain); Mary Guyette, BSN, MSN (nurse case manager); Wayne Sullivan (vocational rehabilitation specialist); Leslie Bell (physical therapist); Janet Carscadden (physical therapist); Kathryn Tau (physical therapist); Julia Wick (behavioral health evaluator); Erica Galipeau (functional capacity assessor); and Dr. Zweber (EMG specialist).
4. Before her injury, the Claimant had a history of migraine headaches, which were generally related to her menstrual cycle.
5. Following her injury, the Claimant presented to Dr. Backus with neck pain and right shoulder pain on January 22, 2002. (Joint Medical Exhibit, Tab 3). She was treated conservatively.1 She was put on significant work restrictions on 22 January 2002. On January 25, 2002 Dr. Backus assessed the patient as having cervical strain with radiculopathy and shoulder rotator cuff signs. In August and September of 2002, the Claimant complained to Dr. Nichols (her orthopedic surgeon who was treating her shoulder) that the increase in physical therapy was bringing on added migraine headaches. (Joint Medical Exhibit, Tab 4, September 16, 2002).
1 In January of 2002 the Claimant went with her husband on a vacation to the Bahamas. They had won the vacation and it was scheduled. During the vacation the Claimant was uncomfortable and could not swim or snorkle. Her activities were limited.
3
6. The Claimant’s right shoulder pain was the focus of most of her treatment in 2002 culminating in shoulder surgery with Dr. Nichols on January 31, 2003. The surgery was a “right shoulder arthroscopy, subacromial decompression, and open reduction internal fixation os acromiale”. About this same time (January of 2003) the Claimant became a full-time student at Johnson State College with 27 previous credits being used toward her Associate’s degree.
7. The Claimant was involved in physical therapy following her surgery. Again, the physical therapy was reported by the Claimant to be bringing on her migraine headaches. (See Joint Medical Exhibit, Dr. Cody note of May 22, 2003.) On June 2, 2003, physical therapist Janet Carscadden noted her opinion that there was a “mechanical component” to the migraine headaches since traction seemed to relieve the headaches. (Joint Medical Exhibit, Tab 8.) Neck pain and migraine headaches were a significant problem for the Claimant during this period. The migraine headaches were different from the previous menstrual headaches. The migraines which were brought on by physical exercise, were not relieved by her usual pain medication. She received biofeedback training from Julia Wick, MS, LCMHC, to try to break the association between pain, tension, and headache. It was recommended that she use a gym and trainer to gain strength. (See Joint Medical Exhibit, note of June 20, 2003.)
8. It was also during June of 2003, that Dr. Dulaney became the Claimant’s neurologist. On June 23, 2003, he related her changed pattern of migraine headaches to the traumatic injury of November 2001. (See Joint Medical Record Exhibit, Tab 4, Note of June 23, 2003.)
9. She was evaluated by an orthopedic surgeon, Dr. Robert D. Monsey, on September 3, 2003. Dr. Monsey gave the Claimant options for medical treatment of her neck pain. His options included interdisciplinary evaluation, medial branch nerve blocks, radiofrequency ablasion, and surgery. The surgery being discussed was a fusion of sections of her cervical spine, performed via access from the front of her neck. The likelihood of success of the surgery was in the range of 50%.
10. Following Dr. Monsey’s statement of options, the Claimant then pursued some of the less invasive options. She participated in the multidisciplinary programs of physical therapy, exercise, and biofeedback.
11. On February 11, 2004 and again on June 11, 2004, the Claimant received injections into her neck by Dr. Tarver of steroids and anesthetics as “medial branch blocks”. These treatments only gave temporary relief and were essentially ineffective to stop the neck pain and migraine headaches.
12. On February 23, 2004 (in between the medial branch blocks of Dr. Tarver) Dr. John Johansson conducted a medical review and examination of the Claimant for the Defendant. He concluded that the Claimant was at medical end result. On March 25, 2004 he augmented his report by letter to express the added opinion that the migraine headaches were not a condition resulting from trauma and were not causally related to her injury. (Joint Medical Exhibit, Tab 7)
4
13. On September 19, 2004, the Claimant underwent a radiofrequency ablasion. This, too, did not give the Claimant lasting relief of her pain.
14. By December of 2004, the Claimant was having daily migraine headaches. (Joint Medical Exhibit, Tab 4, note of December 9, 2004.) The headaches were debilitating and made the Claimant essentially non-functional while she was having a headache. In late 2004, the Claimant returned to the care of Dr. Backus. He questioned whether the Claimant was at maximum medical improvement and whether there might be other treatments for her.
15. On December 9, 2004, Dr. Delaney concluded that the Claimant’s worsening migraine headaches were a chronic condition.
16. In late December, 2004, the Claimant was referred to Physical Therapist Leslie Bell by nurse-casemanager Mary Guyette. While in treatment with Leslie Bell, Ms. Bell noticed what she thought was ligament weakness in Ms. Crowe’s neck on the right side. It appeared to her that there was ligament damage because there was increased muscle tone on the right side of the neck, which could indicate that the muscles were compensating for the injured ligaments. She also felt that the mechanism of injury and the inability of the Claimant to hold her head up for long periods supported this conclusion. Ms. Bell used a form of tape (kinesio tape) to support Ms. Crowe’s head. She noticed improvement in her neck pain and her migraine headaches.
17. Ms. Bell treated the Claimant from December 2004 until May of 2005 at which time the Claimant had reached a plateau of improvement in her physical therapy with Ms. Bell. It was suggested by Ms. Bell that the Claimant investigate “prolotherapy” as a way to increase the ligament strength further.
18. A referral was made to Dr. Jonathan Fenton who first evaluated the Claimant on May 4, 2005. He asked that she do some manipulation therapy before considering prolotherapy. The Claimant completed the manipulations without positive results. The decision was made to do her first prolotherapy treatment on August 22, 2005.
19. Prolotherapy is a method of causing ligaments to ‘proliferate’ by inflammation. Inflammation of the weak ligaments is induced by the injection of solutions containing glycerin and painkillers into the spaces between the cervical joints with a large needle. Because prolotherapy causes ligaments to regenerate, it is not a palliative treatment, but rather, it is a treatment which can provide a cure for weak and damaged ligaments, according to Dr. Fenton. The procedure is not widely used. The procedure can be quite painful and uncomfortable. For this reason, Dr. Fenton warns his patients about the pain. He conducts the procedure under an anesthesia administered through an intravenous line.
20. During the second treatment of the Claimant by Dr. Fenton on September 12, 2005, he acknowledged that he did not give her enough pain medication to avoid very severe pain following the procedure. The Claimant was in extreme pain following the second injection. It was for this reason that she did not return to Dr. Fenton until February 13, 2006. Dr. Fenton understood this delay and was not surprised by it. Rather, he felt it was a natural reaction to her pain and discomfort.
5
21. The Claimant returned for prolotherapy treatments with Dr. Fenton on March 20, 2006, April 10, 2006, June 19, 2006, and July 24, 2006. These treatments improved her neck pain and migraine headaches. After the treatments, she could exercise again for much longer periods without triggering a migraine headache. The prolotherapy was successful. Mary Guyette, who had followed the Claimant through many of the diverse therapies, was very impressed by the Claimant’s improvement after the prolotherapy.
22. In June of 2006 the Claimant returned to Ms. Bell for continuing physical therapy. This course of physical therapy was intended to increase strength since the Claimant could now tolerate more vigorous exercise without triggering migraine headaches. According to Ms. Bell, the difference in the capabilities of the Claimant between December of 2004 and June of 2006 was “huge”. Her ability to lift and to work without triggering a headache were much improved.
23. On September 14, 2006, Dr. Backus opined that the Claimant could work a full day.
24. As of the hearing date (November of 2006), the Claimant was still taping her neck, occasionally, in order to tolerate long trips and other positional challenges. While she still had occasional migraine headaches, she was able to avoid the triggers of her migraine headaches and to work full time. She received her BA degree in History in May of 2006. At the time of the hearing she was working full time as a special education teacher earning $34,000.00 per year. She began this job in August of 2006.
Medical End Result
25. The Department approved a Form 27 ending temporary disability benefits because of Dr. Johansson’s opinion that the Claimant had reached a medical end result as of February 23, 2004. It appears that Dr. Johansson was the only person who had this opinion at this time. His opinion was formed in large part because; (1) he did not include or mention the headaches in his initial evaluation; (2) his first update stated that migraine headaches are not caused by trauma; (3) his second update indicated that there are so many potential triggers for migraine headaches that he could not attribute the triggers to the traumatic injury suffered by the Claimant.
26. His opinion was contradicted by Dr. Backus (chronic cervical pain exacerbated and aggravated the migraines, see note of January 4, 2005), Dr. Dulaney (migraine headaches are related to her trauma, June 23, 2003 note), Physical Therapist Janet Cacadden (there was a mechanical component to Claimant’s migraines as shown by the effect of traction, note of June 2, 2003), and Dr. Fenton (migraine headaches were triggered by muscles working overtime to make up for an unstable neck caused by weakened ligaments in the cervical spine; testimony of Dr. Fenton).
27. Since Dr. Johansson did not believe that the migraine headaches were caused by the Claimant’s injury, he did not consider that the continuing treatments of her neck and migraine headaches were part of her recovery.
6
28. Dr. Backus assessed maximum medical improvement as of July 12, 2005 in his chart note, but at that time, the Claimant was in treatment with Dr. Fenton. Dr. Backus, in his later testimony, revised his opinion about medical end result and put the date of medical end result at August 11, 2006. (see testimony of Dr. Backus, Deposition, Page 27).
Prolotherapy as Reasonable and Necessary Treatment
29. In Dr. Johansson’s deposition testimony, he opined that the prolotherapy administered in this case was not medically indicated for the Claimant. In his opinion, there was no evidence of “ligamentous laxity in her cervical spine.” (See deposition of Dr. Johansson, 21 February 2007, Page 28.) This conclusion is contradicted by Dr. Fenton (who felt that there was cervical instability caused by weak ligaments – Testimony of Dr. Fenton), Dr. Backus who thought there was ligament dysfunction or instability (Deposition of Dr. Backus, page 8), and the examination of Physical Therapist Bell (who noted increased muscle tone and reaction to taping as evidence of lax ligaments – Testimony of Leslie Bell). Dr. Backus expressed the opinion that prolotherapy offered “an excellent chance at improvement and avoid surgery.” (See Joint Medical Exhibit, Tab 3, note dated April 8, 2005 in which his assessment included ligament weakness and/or instability). Likewise, Dr. Backus testified that prolotherapy was a reasonable medical treatment for the Claimant in January of 2005 (Dr. Backus deposition testimony, Page 10.)
30. With the benefit of hindsight, it is clear that the prolotherapy was a significant benefit to the Claimant. She had tried numerous other treatments without improvement.2 The prolotherapy allowed her to control the triggers of her migraine headaches and to have more physical activity and overall function.
31. The Defendant argues that the Claimant intentionally delayed, prolonged, and confused her treatments in order for her to be in treatment until she was gainfully employed as a teacher. (See Defendant’s Proposed Finding, Paragraph 47.) In support of this argument the Defendant pointed to the delays in the prolotherapy treatments from Dr. Fenton, missed appointments by the Claimant with physical therapists, and an early opinion by Mary Guyette that the Claimant might have been trying to draw out the treatments. Mary Guyette has a BSN and Masters of Nursing degree and has worked in the Vermont medical community for many years. She was hired by the Defendant. She monitored the Claimant’s case from April of 2002 forward. Mary Guyette was instrumental in making the referral to Leslie Bell and to Dr. Fenton. It was her opinion at the hearing that the Claimant was sincere in her complaints of pain and her efforts to find a solution. In looking at the whole history of the case, she did not believe that the Claimant had intentionally delayed or prolonged treatment. Her opinion on this point is persuasive.
2 The Defendant challenged prolotherapy as non-traditional medicine, and outside the usual range of medical treatment. Dr. Johansson himself administers prolotherapy in certain cases. The only significant issue in the case was whether the treatment was appropriate in this case.
7
32. Likewise, the Defendant argues that the Claimant’s subjective reporting to doctors and health care providers was so full of discrepancies, that her credibility in reporting symptoms cannot be relied upon, thus, discrediting the medical conclusions of her providers. While there are some inconsistencies in the eight years of medical records, there were few inconsistencies in the Claimant’s reports of persistent pain and disability until the conclusion of her treatments with Dr. Fenton. Likewise, the medical record demonstrates that the Claimant took advantage of all reasonably proposed treatments, despite the risks, in order to return to as much function in her life as she could recover. In this sense, the Claimant’s pain condition and her desire to “get better” were confirmed, not only by her treating medical providers, but by her own behavior.
Vocational Rehabilitation
33. On May 19, 2004, the Claimant participated in a Functional Capacity Examination by Erica Galipeau. This assessment concluded that the Claimant had a functional work capacity of full-time, medium work capacity and some capacity in a heavy range. It was the opinion of the evaluator that the Claimant would be most successful in a return to work in a medium work level position.3 (See Joint Medical Exhibit, Tab 9, page 28.)
34. In April of 2004 Wayne Sullivan was assigned to perform a vocational rehabilitation entitlement assessment of the Claimant. Mr. Sullivan is a vocational rehabilitation counselor with over twenty years experience. He met with the Claimant on April 8, 2004. According to Mr. Sullivan, a worker may be entitled to vocational rehabilitation services if the worker cannot return to suitable employment following an injury. “Suitable” employment is deemed to be a job which would create income of at least 80% of what the employee was earning before the injury. The Claimant had worked as a substitute teacher before working for the Defendant. She earned $55.00 per day for a 6 hour day as a substitute teacher. Her hourly rate as a machine operator for the Defendant was $11.52 per hour.
35. Mr. Sullivan determined that the Claimant was not entitled to vocational rehabilitation services because she had a medium to heavy, full-time work capacity. He determined that she had transferable skills, which would enable her to work as an office manager, substitute teacher, or machine operator at a job paying a minimum of $9.01/ hour.4 (See Joint Medical Exhibit, VR Report of June 24, 2004.)
36. In making this assessment, Mr. Sullivan relied upon the information provided by the Claimant, information from Dr. Monsey, and the Functional Capacity Examination by Erica Galipeau.
3 The Claimant testified that she started to have a migraine headache during the functional capacity examination, but there was no mention of this in the report.
4 The target salary of $9.01 was calculated as 80% of her average weekly wage with the Defendant in 2001 which was $450.74 per week.
8
37. At the hearing, the Claimant argued that the Functional Capacity Examination report was flawed because it did not consider the migraine headaches. The Claimant testified that she had severe migraine headaches after the functional capacity examination and that she tried to communicate this to the evaluator but did not receive a call back. The Claimant presented evidence from Dr. Backus that the Claimant did not have a medium to heavy work capacity in March of 2006.
38. The Claimant also argued that the conclusion of Mr. Sullivan was flawed because the $9.01 target salary which he used as a minimum target should have been adjusted for inflation upwards to $12.65 (100%) or $10.12 per hour (80%). Because the FCE and the Vocational Rehabilitation Eligibility Assessment were flawed, according to the Claimant, her own plan should now be approved by the Department. Her own plan was her completion of a college education, which she pursued during her recovery period.
39. Prior to her employment with the Defendant, the Claimant had worked as a substitute teacher. In January of 2003 she enrolled as a full time student at Johnson State College in Johnson, Vermont. She received her Associate of Arts degree in June of 2004 and her BA degree in May of 2006, graduating magna cum laude. She majored in history because she wanted to be a history teacher. As of November 2006, she was pursuing a Master’s degree in Special Education while she was working as a special education teacher, full time, earning $34,000.00 to 35,000.00 per year.
40. The Claimant asks that the Department now order that the Defendant “reimburse Claimant for the reasonable cost of he[r] tuition, fees, books and mileage, plus interest.” (See page 23, Claimant’s Proposed Findings.) No evidence was offered by the Claimant of the amount of these expenses.
41. The Claimant’s college education plan was never accepted by the Defendant or the Department as a vocational rehabilitation plan.
42. There was no evidence offered at the hearing to show that the Claimant had requested an alternate FCE or alternate vocational rehabilitation assessment, or that an alternate vocational rehabilitation counselor was requested.
43. The Claimant incurred $2,093.11 in costs. (see statement of costs filed with proposed findings and supplemental letter of September 11, 2007.) The Claimant’s attorney expended 106.4 hours in representation of the Claimant in this case. His fee agreement with the Claimant calls for a contingent fee in the amount of one-third of the gross recovery, plus any attorney’s fee awarded by decision at a formal hearing. (See fee agreement dated August 21, 2006 filed with Claimant’s Proposed Findings.)
9
CONCLUSIONS OF LAW:
1. In Worker’s Compensation cases the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963). The claimant must establish by sufficient credible evidence the character and extent of the injury and disability as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984).
2. There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the inference from the facts proven must be the more probable hypothesis. Burton v. Holden and Martin Lumber Co. 112 Vt. 17 (1941).
3. Where the causal connection between the accident and the injury is obscure and a layperson would have no well-grounded opinion as to causation, expert medical opinion is necessary. Lapan v. Burno’s Inc., 137 Vt. 393 (1979).
4. While the claimant has the burden of proof in the first instance, once the claim is accepted and benefits are paid, the burden of proof to terminate the claim is upon the employer. Merrill v. University of Vermont, 133 Vt. 101 (1974). A disabled, injured worker is entitled to temporary disability benefits until he or she has successfully returned to work or has reached medical end result. Coburn v. Frank Dodge and Sons, 165 Vt. 529, 532 (1966). Medical end result is the point at which a person has reached a substantial plateau in the medical recovery process such that significant further improvement is not expected regardless of treatment. WC Rule 2.1200.
5. Under Vermont’s Workers’ Compensation Act, the employer must furnish “reasonable surgical, medical and nursing services to an injured employee.” 21 V.S.A. Sec. 640(a). In determining what is reasonable, competent expert evidence of reasonableness is usually determinative. J.H. v. Therrien Foundations, Opinion No. 53-05 WC (August 19, 2005). When an employer seeks to terminate coverage for medical benefits, it has the burden of proving that the treatment at issue is not reasonable. Ploof v. Heritage Ford, Opinion No. 26-07 WC (September 28, 2007). Thus, upon the issues of terminating temporary disability benefits and the reasonableness of the prolotherapy treatments, expert testimony is necessary and the burden falls upon the Defendant.
10
6. When choosing between conflicting medical opinions, the Department has looked at several factors: (1) the nature of the 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 qualification of the experts. Geiger v. Hawk Mountain Inn, Opinion No. 37-03 WC (Sept. 17, 2003). In the present case, Dr. Johansson’s opinion is less credible than that of Dr. Fenton, Dr. Dulaney, and Dr. Backus. Dr. Johansson was not in a treating relationship with the Claimant as were the other doctors. Moreover, he did not accept or consider that the headaches were caused by the injury. Thus, his opinion appeared to have been formed, in the first instance, without consideration of the headaches. Dr. Johansson believed that, “there’s no evidence that she had ligamentous laxity in her cervical spine.” (Deposition of Dr. Johansson, Page 28.) Since both Leslie Bell and Dr. Fenton found such evidence, Dr. Fenton’s opinion has more objective support than Dr. Johansson’s.
7. The Commissioner is persuaded by the expert testimony in favor of the Claimant concerning the date of medical end result and the reasonableness of the prolotherapy treatment. The testifying experts (except for Dr. Johansson) were in general accord that the prolotherapy treatments caused substantial improvement in the condition of the Claimant and that they were reasonable.
8. Dr. Backus placed the Claimant at medical end result on August 11, 2006. The Commissioner finds that this opinion is more credible than that of Dr. Johansson and that the date of medical end result in this case is August 11, 2006.
9. A claimant is entitled to vocational rehabilitation services when, as a result of a work-related injury, she is unable to perform work for which she has previous training or experience. 21 VSA Sec. 641 (a); Peabody v. Home Ins. Co., 170 Vt. 635 (2000) (mem.).
10. In an accepted workers’ compensation case with a vocational rehabilitation referral, entitlement to vocational rehabilitation services is determined by a rehabilitation counselor and a report is made. WC Rule 32.2000. In this instance, the only evaluation performed by a rehabilitation counselor found the Claimant not entitled to vocational rehabilitation services. The rehabilitation counselor considered her past experience and work capacity and concluded there was work she could perform making close to her pre-injury wage.
11
11. Even assuming that the Claimant had established her entitlement to vocational rehabilitation services, WC Rule 33.200 provides that the counselor develop a plan and a hierarchy of vocational options is followed. An educational/academic program would be recommended only if four other preferred options are not available or feasible. Those include return to work with the original employer in a modified job, return to work for a different employer in a modified job, on-the-job training, or new skill training or retraining. The vocational rehabilitation plan, once formulated, would then be submitted to the parties for signature. If a party fails or refuses to sign the plan, the matter is set for formal hearing. WC Rule 33.600. In the normal course, the Commissioner or her designee would be considering a specific vocational rehabilitation plan which has been prepared by a certified vocational rehabilitation counselor in accordance with the rules of the Department. If the Claimant disagrees with a determination of a particular vocational rehabilitation counselor, she is free to retain the services of her own vocational rehabilitation counselor to prepare a proposed plan. See Martell v. Dowlings, Inc., Opinion No 15-04 WC (March 30, 2004).
12. In this case, however, the Claimant formulated her own, unwritten, educational plan, which was to become a special education teacher. She offered scant evidence that this academic/educational program was the optimal solution to her employment situation or that this plan complied with WC Rule 33.200 (hierarchy of preferred programs). Likewise, any plan must, by rule, consider the costs associated with the plan. WC Rule 33.3400. No evidence of the costs of the Claimant’s program was offered. Finally, it appears that the educational plan of the Claimant (to acquire a Master’s Degree in special education, or subordinate, prerequisite degrees such as a Bachelor of Arts degree in History, at the expense of the employer) may have overshot the mark of returning the Claimant to suitable employment. Without any supporting opinion of a vocational rehabilitation expert, the Commissioner can only speculate as to whether the vocational goal of the claimant is within the definition of “suitable employment.” WC Rule 2.1250. “Although injured workers are entitled to rehabilitation, they are only entitled if the proffered plan will result in suitable employment. Furthermore, it is not incumbent on the Commissioner to establish such entitlement.” Bishop v. Town of Barre, 140 Vt. 564 (1982) (where Claimant’s self-generated plan was rejected by Commissioner). In the past, the Commissioner has not looked favorably upon those plans formulated by the claimant “sua sponte” without sponsorship or prior approval of a vocational rehabilitation counselor. Provost v. Contractor Crane Service, Inc., Opinion No. 26-96 WC (April 29, 1996).
13. Where the Claimant prevails, the Commissioner shall include interest at the statutory rate computed from the date the compensation should have been paid, or, for medical expenses, from the date when the cost was incurred. 21 VSA Sec. 664, Martell v. Dowlings, Inc. (supra.).
14. Under Vermont Workers’ Compensation Rule 10.0000 and 21 VSA Sec. 678(a), the Commissioner may, in her discretion, award reasonable attorney’s fees to the prevailing party. When a claimant has partially prevailed, she is entitled to a fee award in proportion to her success. Martell v. Dowlings, Inc. (supra.)
12
15. The legal bill of Claimant’s counsel only identifies 1.2 hours of work (out of a total of 106.4 hours) specifically related to the vocational rehabilitation. Clearly, more time than this was related to this issue. Considering the evidence, the arguments of counsel, the proposed findings of fact, and the Department file, the Commissioner determines, in her discretion, that 85% of the attorney’s fees of the Claimant should be awarded. The amount of compensable attorneys’ fees is therefore $8,139.60 (106.4 X 85% X $90.00/hr).
ORDER:
Therefore, based upon the foregoing findings of fact and conclusions of law, the Commissioner determines that the Claimant is entitled to the following:
1. Medical benefits regarding the Claimant’s cervogenic induced migraine headaches, including the prolotherapy treatments of Dr. Fenton;
2. Temporary disability benefits for the period of March 13, 2004 until August 11, 2006;
3. Interest at the legal rate on the medical benefits from the date each medical payment was due until the date of payment and interest on the temporary disability benefits from the date they became due until the date of payment;
4. The Claimant’s request for the reimbursement of college expenses is denied;
5. Attorneys’ fees of $8,139.60 and costs of $2,093.11.
Dated at Montpelier, Vermont this 8th day of January 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. Sec. 670, 672.

© Copyright - -