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Dennis LaFarr v. Trapp Family Lodge (November 15, 2010)

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Dennis LaFarr v. Trapp Family Lodge (November 15, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Dennis LaFarr Opinion No. 34-10WC
v. By: Sal Spinosa, Esq.
Hearing Officer
Trapp Family Lodge
For: Valerie Rickert
Acting Commissioner
State File No. BB-52069
OPINION AND ORDER
Hearing held in Montpelier on July 14, 2010
Record closed on August 31, 2010
APPEARANCES:
Stephen Cusick, Esq., for Claimant
Jeffrey Spencer, Esq., for Defendant
ISSUES PRESENTED:
1. Did Claimant suffer a compensable work-related injury on August 11, 2009?
2. If yes, to what workers’ compensation benefits is he entitled?
EXHIBITS:
Joint Exhibit A: Social Security records
Joint Exhibit B: Medical records
Joint Exhibit C: Additional records from Dr. Sullivan
Defendant’s Exhibit 1: Dr. Adamo report and curriculum vitae
Defendant’s Exhibit 2: Transcribed telephone interview with Claimant, August 27, 2009
Defendant’s Exhibit 3: Letter to Julie Charonko and Stephen Cusick, November
9, 2009 (first page only)
Defendant’s Exhibit 4: Approved Form 22 (with supporting documents) relating to
Claim #U-16938
Defendant’s Exhibit 5: Dr. Backus report, February 3, 2005
CLAIM:
Temporary disability benefits pursuant to 21 V.S.A. §§642 and/or 646
Medical benefits pursuant to 21 V.S.A. §640
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Vocational rehabilitation benefits pursuant to 21 V.S.A. §641
Interest, costs and attorney’s fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant began working as a housekeeper for Defendant in 2004. In 2007 he was promoted to a position as the leader of a housecleaning crew.
Claimant’s Prior Medical History
4. Claimant has an extensive prior medical history. He has suffered from chronic neck pain since a motor vehicle accident in 1974. In 1986 he was diagnosed with bipolar disorder, which is currently under good control with medication. Claimant also has a history of recurrent symptoms related to a painful, chronic condition in his left foot. He had contemplated surgery to remedy the condition in 2007, but decided against it due to the amount of time he would have had to take off work in order to recover.
5. Claimant also has a prior history of back pain. In 2004 he injured his mid- and lower back while working for a previous employer. As a result of this injury he missed some weeks from work and ultimately was paid permanency benefits in accordance with a 6% whole person impairment.
6. Following his 2004 injury Claimant continued to experience occasional back pain, sometimes attributable to specific activities such as lifting, sometimes not. Claimant treated for these episodes with Dr. Crowley, his primary care provider. For the most part, Dr. Crowley prescribed pain medications, both narcotic and non-narcotic. At times Dr. Crowley questioned the veracity of Claimant’s pain complaints, as they seemed excessive given the minimal findings documented on diagnostic imaging studies. Dr. Crowley also expressed uncertainty about whether Claimant’s bipolar disorder rendered him an unreliable historian. In the end, however, Dr. Crowley determined that Claimant’s requests for pain medications, though regular, were spaced sufficiently far apart that misuse was unlikely.
7. In 2001 Claimant was approved for Social Security Disability benefits on account of his bipolar disorder. To remain entitled to these benefits, Claimant was limited in the amount of wages he could earn. Defendant was aware of this limitation and accommodated Claimant accordingly.
8. In 2007 Claimant exceeded the allowable limit and his Social Security benefits were terminated. Claimant subsequently reapplied, listing not only his bipolar disorder but also his chronic neck, back and foot pain as limiting his ability to work. His claim for
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reinstatement was denied on the grounds that none of the conditions from which he suffered prevented him from working to the extent necessary to qualify for benefits.
Claimant’s August 11, 2009 Injury and Related Medical Treatment
9. On the afternoon of August 11, 2009 Claimant was leaning into an outdoor bathtub to clean it when he felt the acute onset of low back pain.1 His pain rapidly worsened, such that by the time he got home that evening he was barely able to walk. Claimant’s wife credibly confirmed that Claimant was slow to exit his vehicle when he arrived home and walked in a stooped posture.
10. Medical records verify that Claimant called Dr. Crowley’s office the next day, August 12, 2009, to report that he had hurt his back at work and could “hardly walk.” The office prescribed a muscle relaxant by telephone. On August 13, 2009 Claimant called back and reported that his symptoms had not abated and that he was unable to go to work. He was advised to increase his medications, and an office visit was scheduled for August 15, 2009.
11. Dr. Crowley was not available at the time of Claimant’s scheduled visit, so his associate, Dr. Sullivan, evaluated him instead. As a family practitioner, Dr. Sullivan is well versed in the evaluation and treatment of work-related low back injuries.
12. Dr. Sullivan reported that Claimant had hurt his back while cleaning an outdoor tub, an activity that involved “a lot of extending and scrubbing as well as his usual lifting of supplies and machines.” Dr. Sullivan observed that Claimant walked with an antalgic gait, exhibited significant spasm and experienced pain with both lateral rotation and straight leg raise. These are all objective physical findings indicative of a lower back injury.
13. Dr. Sullivan’s diagnosis was lumbo-sacral strain with significant spasm “caused by the lifting and extended position of cleaning at work.” In making this diagnosis, Dr. Sullivan specifically noted that Claimant’s current condition was “not necessarily related to his chronic back pain at all.” Dr. Sullivan did not review all of Claimant’s prior medical records, but found him to be a credible and consistent historian, particularly in distinguishing the acute nature of his current pain from his longstanding chronic back pain. Dr. Sullivan also testified that Claimant’s injury was consistent with his use of poor body mechanics when performing his work. I find this testimony credible in all respects.
14. As treatment for Claimant’s symptoms, Dr. Sullivan prescribed muscle relaxers, pain medications and rest. He determined that Claimant was disabled from working at least until the following week.
1 Defendant challenges the veracity of this account, citing to a prior recorded statement Claimant had given in which he asserted that he was bending and reaching from inside the tub, not outside, when his back pain arose. Notwithstanding this minor discrepancy, I find Claimant’s testimony to be credible and accept his version of the incident as both truthful and accurate.
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15. Claimant next treated with his regular physician, Dr. Crowley, on August 21, 2009. Claimant reported continuing pain, for which Dr. Crowley recommended physical therapy. Claimant diligently applied himself to this treatment, and overall experienced significant improvement in his low back pain, albeit with various activity-related fluctuations.
16. In October 2009 Claimant underwent surgery to remedy the chronic, painful condition in his left foot. Claimant had considered this surgery in 2007, see Finding of Fact No. 4 supra, but had not felt able to afford the necessary time out of work.
17. Claimant was totally disabled from working on account of his low back injury from August 12, 2009 through November 20, 2009. On that date Dr. Sullivan released him to return to work three days a week. Shortly thereafter Claimant notified Robyn Hark, Defendant’s human resources specialist, that he was available for part-time work. Ms. Hark advised that she would need a written release from Claimant’s doctor, which Claimant agreed to provide. He did not do so, however. Instead, Claimant secured a job elsewhere, though for reasons unrelated to his injury his employment was terminated on his first day. As of the formal hearing, Claimant remained unemployed.
18. Claimant last treated with Dr. Sullivan in April 2010. He had undergone a course of aquatic physical therapy, which offered temporary relief of his symptoms, but he continued to experience low back pain, particularly with prolonged standing, walking or lifting. Diagnostic imaging results were essentially normal, indicating that these ongoing symptoms most likely are mechanical or muscular. As treatment, Dr. Sullivan adjusted Claimant’s pain medications. He also anticipated referring Claimant to a work hardening program, though there is no evidence that that has yet occurred.
Defendant’s Denial
19. Defendant has denied Claimant’s claim for workers’ compensation benefits from the outset. Initially, it asserted that Claimant’s condition was related to his pre-existing chronic low back pain rather than to a work injury. Later it asserted that Claimant’s credibility was suspect.
20. Dr. Adamo, an occupational medicine specialist, testified in support of Defendant’s position. Dr. Adamo reviewed Claimant’s medical records but did not examine him.
21. Dr. Adamo diagnosed Claimant with degenerative joint disease and chronic low back pain, neither caused nor aggravated by any work-related injury. Dr. Adamo initially cited two factors in support of this opinion: first, the absence of objective physical findings in Dr. Sullivan’s August 15, 2009 examination, and second, questions concerning Claimant’s credibility. As to the latter, Dr. Adamo expressed his understanding that Claimant had not reported the August 11, 2009 injury to Defendant until more than two weeks later.
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22. In fact, however, Dr. Sullivan did note the presence of objective physical findings in his initial examination, see Finding of Fact No. 11 supra. And while Claimant did not file a claim for workers’ compensation benefits until some time after the injury, he did telephone his supervisor the next day to report that he had hurt himself at work.2
23. Defendant pointed to other evidence that in its view indicated that Claimant had ulterior motives for claiming a work-related injury and therefore was not credible. There was evidence that Claimant did not like his new supervisor because she was “mean” and worked him “too hard.” There was a notation in Dr. Crowley’s medical records that Claimant regretted ever having returned to work after being granted Social Security Disability benefits, that he was dissatisfied with his job even before his alleged work injury and that he later told Dr. Crowley that he did not intend to work again. There was the fact that during his period of temporary total disability Claimant underwent the foot surgery he previously had delayed because he could not afford the time off from work. As much as Defendant would like to make of this evidence, I find that it is insufficient to undermine Claimant’s account of the events of August 11, 2009 as he reported them to both his supervisor and to his medical providers and as he testified to them at hearing.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Where, as here, there are conflicting medical opinions the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
2 Rather than filing a claim for workers’ compensation benefits, initially Claimant sought, and was granted, vacation time. He hoped that his back pain would abate during his time off. When Ms. Hark learned that he had done so, she took the necessary steps to begin the workers’ compensation process.
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3. Applying this test to the facts of this claim, I conclude that Dr. Sullivan’s opinion is the most persuasive. Dr. Sullivan established a treating relationship with Claimant. Although he did not review all of Claimant’s prior medical records, he determined from his own personal observation that Claimant was a credible and consistent historian. He examined Claimant only days after the injury, and noted objective physical findings that supported the mechanism of injury as Claimant had described it.
4. In contrast, Dr. Adamo’s opinion was based largely on assumptions he made as to Claimant’s credibility. Dr. Adamo never personally examined Claimant and his opinion lacked objective support.
5. I conclude that Claimant has sustained his burden of proving that he injured his lower back while engaged in the course and scope of his employment for Defendant on August 11, 2009.
6. I further conclude that Claimant has established his entitlement to temporary total disability benefits from August 12, 2009 through November 20, 2009. He is entitled as well to coverage for all reasonable and necessary medical treatment causally related to his compensable injury. Claimant has not established his entitlement to any other workers’ compensation benefits, though upon further proof he may yet do so.
7. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $453.82 and attorney fees totaling $11,443.50. An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded.
8. As for attorney fees, these lie within the Commissioner’s discretion. I find an award of fees to be appropriate here. However, Claimant’s claim for fees fails to account for the fact that the amendment to Workers’ Compensation Rule 10.0000, which raised the hourly rate at which attorney fees can be assessed, applies only to fees incurred after its effective date, June 15, 2010. With that in mind, and in accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit his revised claim. Defendant shall have 15 days thereafter within which to respond.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary disability benefits from August 12, 2009 through November 20, 2009 pursuant to 21 V.S.A. §642, with interest calculated pursuant to 21 V.S.A. §664;
2. Medical costs associated with reasonable and necessary medical treatment of Claimant’s August 11, 2009 work injury, pursuant to 21 V.S.A. §640;
3. Such other workers’ compensation benefits causally related to his August 11, 2009 work injury as Claimant proves his entitlement; and
4. Costs of $453.82 and attorney fees to be determined in accordance with Conclusion of Law No. 8 above.
DATED at Montpelier, Vermont this 15th day of November 2010.
______________________
Valerie Rickert
Acting 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.

Cathy Chartier v. Central Vermont Medical Center (June 26, 2009)

Categories: Workers' Compensation Hearing DecisionTags: , Author:

Cathy Chartier v. Central Vermont Medical Center (June 26, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Cathy Chartier Opinion No. 22-09WC
By: Jane Dimotsis, Esq.
v. Hearing Officer
Central Vermont Medical Center For: Patricia Moulton Powden
Commissioner
State File No. X-05232
OPINION AND ORDER
Hearing held in Montpelier on December 12, 2008
Record closed on January 21, 2009
APPEARANCES:
William Skiff, Esq. for Claimant
John Valente, Esq. for Defendant
ISSUE:
Did Claimant suffer a work-related injury on November 28, 2005 and if so, to what benefits is she entitled?
EXHIBITS:
Joint Exhibit I: Joint Medical Exhibit
Claimant’s Exhibit 1: Green’s Operative Hand Surgery (4th ed. 1999-2000), CRPS
chapter
Claimant’s Exhibit 2: Curriculum Vitae, Stephanie Landvater, M.D.
Claimant’s Exhibit 3: Claimant’s fee agreement
Claimant’s Exhibit 4: Deposition of Stephanie Landvater, M.D.
Defendant’s Exhibit A: Dr. Ensalada Independent Medical Evaluation report
Defendant’s Exhibit B: Curriculum Vitae, Leon Ensalada, M.D.
Defendant’s Exhibit C: Photographs of Claimant’s hands
CLAIM:
Temporary disability benefits pursuant to 21 V.S.A. §§642 and 646
Medical benefits pursuant to 21 V.S.A. §640
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Interest pursuant to 21 V.S.A. §664
Attorney fees and costs pursuant to 21 V.S.A. §678
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. Judicial notice also is taken of relevant portions of the AMA Guides to the Evaluation of Permanent Impairment (5th ed.) (the “AMA Guides”).
3. Claimant is now 43 years old. She has worked as a registered nurse for Defendant for approximately nineteen years. Her regular work schedule has always been 32 hours per week plus “on-call” emergency work.
4. On November 28, 2005 Claimant was working in the post-operative unit when she had an emergency situation with a young patient. In order to keep the child’s airway open and clear, she had to hold his jaw open, thrust it forward and keep his tongue out of his breathing path. Usually this procedure lasts only three or four minutes, but in this case Claimant had to maintain her position, using both hands with some strain, for fifteen to twenty minutes. Claimant alleges that her left arm and hand were strained and that the injury later developed into reflex sympathetic dystrophy (RSD).1
Claimant’s 1997 Work Injury
5. Claimant suffered a work-related left arm strain while employed by Defendant in July 1997. When the pain from this injury increased, she treated primarily with Dr. Landvater, an orthopedic surgeon, but also saw Drs. Abajian and Rathmell, both pain specialists. During the course of their treatment Claimant’s doctors all agreed that her condition had developed from a musculotendonous injury or ulnar neuropathy to RSD in her left upper extremity. All observed objective symptoms indicative of that condition, including temperature changes in her left arm, red and mottled skin, sensitivity to palpation and loss of grip strength.
6. Over the following months, Claimant’s symptoms waxed and waned. Dr. Abajian administered stellate ganglion blocks, an injection of local anesthetic into the sympathetic nerve tissue, which afforded her some pain relief. At various times Claimant also was prescribed medications such as Flexeril, Ultram, Nortriptyline and Vicodin to address her left upper extremity pain issues. She found these medications to be helpful, but her pain still persisted. Ultimately, Dr. Rathmell performed a cervical catheter treatment, following which her pain symptoms dramatically decreased. Claimant reached an end medical result shortly after concluding this treatment. She returned to work successfully in 1998.
1 The AMA Guides now refer to RSD as complex regional pain syndrome (CRPS), Type I.
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7. Defendant accepted Claimant’s July 1997 injury as compensable and paid workers’ compensation benefits accordingly. Claimant did not treat for her left arm area again until the incident that gave rise to the current claim, some seven years later.
Diagnosis and Treatment of Claimant’s November 2005 Injury
8. As noted above, Claimant claims to have suffered a new work-related injury on November 28, 2005 when she had to maintain her arms and hands in a strained position for an extended period of time in order to keep a young patient’s airway open.
9. Claimant testified that after the November 2005 incident her left arm was red and swollen, and she was experiencing burning pain. She believed her symptoms were the same as those she had experienced in the aftermath of her 1997 work injury.
10. As she had in 1997, Claimant treated again primarily with Dr. Landvater. Dr. Landvater is a board certified practicing orthopedic surgeon. Over the course of her career, she has diagnosed and treated many patients with RSD. Dr. Landvater has been Claimant’s treating physician for approximately nine years.
11. Dr. Landvater confirmed that Claimant’s symptoms were in fact the same as the ones she had experienced in 1997. She observed objective signs of RSD, including temperature changes in Claimant’s left upper extremity, left hand discoloration, significant loss of grip strength, extreme skin sensitivity and complaints of burning pain.
12. In Dr. Landvater’s opinion, Claimant suffered a left upper extremity strain as a result of the November 2005 work incident, which resulted in ulnar neuritis that in turn triggered a recurrence of RSD. In making this diagnosis Dr. Landvater relied in part on the chapter relating to CRPS in Green’s Operative Hand Surgery (4th ed. 1999-2000). According to that treatise, it is proper to diagnose CRPS clinically. To do so, the practitioner should evaluate the patient’s pain, trophic changes, autonomic dysfunction and functional deficits. Dr. Landvater testified that according to the signs and symptoms she observed Claimant met the text’s criteria for a diagnosis of CRPS.
13. Dr. Landvater’s treatment plan mirrored what had proven successful when Claimant had suffered from RSD in 1997 – stellate ganglion blocks, acupuncture, physical therapy and other modalities as needed for pain.
14. As she had done in 1997, Claimant underwent a series of stellate ganglion blocks with Dr. Abajian beginning in November 2005. These provided only temporary relief, however. Dr. Abajian concurred with the diagnosis of RSD.
15. From January through March 2006 Claimant treated with Dr. Tarver, a pain specialist. Dr. Tarver noted that Claimant’s left upper extremity was very red and swollen from her fingertips to her mid-forearm. He initially agreed that Claimant possibly was suffering from RSD or CRPS triggered by underlying ulnar neuropathy, as Dr. Landvater had concluded. Later, however, Dr. Tarver discounted the RSD diagnosis and concluded that the only appropriate diagnosis was ulnar neuropathy.
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16. Claimant also underwent a neurological evaluation with Dr. Krantz, in February 2006. Dr. Krantz agreed with Dr. Landvater’s diagnosis of both ulnar neuropathy and RSD. Among the objective findings she observed were mottling, redness and mild swelling in the left upper extremity and diminished sensation in the left ulnar distribution.
17. Last, Claimant’s primary care provider, Dr. Atkinson, also evaluated Claimant in early 2006 and concurred with Dr. Landvater’s RSD diagnosis. Dr. Atkinson observed objective symptoms in Claimant’s left arm, noting that her skin was mottled and that she was unable to wear rings on her left hand because it was swollen. Dr. Atkinson agreed that Claimant’s RSD had resulted from the November 2005 work incident.
18. In summary, then, all of Claimant’s treating physicians – Drs. Landvater, Abajian, Tarver, Krantz and Atkinson – observed objective signs of RSD in the months following the November 2005 work incident. Except for Dr. Tarver, all concurred in the diagnosis of RSD stemming from ulnar neuropathy caused by that event.
Independent Medical Evaluation
19. At Defendant’s request, Claimant underwent an independent medical evaluation with Dr. Ensalada in May 2007. Dr. Ensalada has extensive academic training and experience treating pain syndromes, and is a specialist in RSD and CRPS. He authored the section on CRPS and co-authored the chart used to rate permanency for that condition in the AMA Guides.
20. According to Dr. Ensalada, the mechanism that allegedly caused Claimant’s November 2005 injury – holding a young patient’s jaw open for fifteen to twenty minutes – was a simple procedure that should not have caused left arm neuropathy or ulnar neuritis. In his opinion, that activity may have resulted in a soft tissue injury, which should have resolved quickly thereafter.
21. Dr. Ensalada believes that Claimant now suffers from left ulnar neuropathy due to entrapment of the ulnar nerve around the elbow, but that that condition was neither caused nor aggravated by her work activities. With reference to the current medical literature, Dr. Ensalada stated that Claimant did not engage in the type of repetitive movements or high-force use of her arm at work that would cause ulnar nerve entrapment.
22. Dr. Ensalada believes that Claimant is engaging in somatization, consciously or unconsciously displaying symptoms for psychological purposes or secondary gain. In his opinion, she has no current impairment or disability causally related to her work for Defendant.
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23. Dr. Ensalada does not believe that the November 2005 incident caused either RSD or CRPS. Under the AMA Guides, in order to make a proper diagnosis of CRPS a patient must exhibit at least eight of eleven listed criteria, including changes in skin color, temperature or texture, swelling, joint stiffness and hair or nail changes. Dr. Ensalada stated that at the time of his examination Claimant did not exhibit any of the listed criteria. On those grounds he determined that it would be inappropriate to diagnose her with RSD or CRPS.
24. Dr. Ensalada admitted that the manifestation of RSD is quite variable and that its symptoms can wax and wane over time.
25. The stated purpose of the AMA Guides is to rate work-related permanent impairments. The fifth edition updated the diagnostic criteria and evaluation process used in impairment assessment, incorporating both available scientific evidence and prevailing medical opinion. The authors were encouraged to use the latest scientific evidence.
26. The AMA Guides are statutorily designated as the standard to use for rating the extent of an injured worker’s permanent impairment. Treating doctors do not necessarily refer to the AMA Guides to diagnose patients, however. None of Claimant’s treating physicians did so in making their diagnoses.
Claimant’s Periods of Temporary Disability
27. Neither Claimant nor Defendant addressed specifically the dates that Claimant was taken out of work following the November 28, 2005 incident. From the available evidence, it appears that Claimant was disabled from working during the following periods:
• Totally disabled from November 29, 2005 until April 3, 2006;
• Returned to work half-days from April 4, 2006 until April 17, 2006;
• Returned to work full-time from April 17, 2006 until March 8, 2007;
• Totally disabled from March 9, 2007 until July 31, 2007;
• Returned to work half-days from August 1, 2007 until August 14, 2007.
28. Claimant returned to her regular 32-hours-per-week work schedule on August 15, 2007 and added her normal on-call duties in September 2007. She has not missed any additional time since then.
29. Claimant continues to treat for her left upper extremity pain and symptoms with medication and acupuncture.
30. Citing Dr. Ensalada’s independent medical evaluation as support, Defendant discontinued both indemnity and medical benefits on July 6, 2007.
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CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
3. Claimant relies primarily on Dr. Landvater’s diagnosis of ulnar neuropathy, triggered by the November 2005 work incident and later developing into RSD, as support for her claim. Defendant relies on Dr. Ensalada’s opinion to establish first, that Claimant’s ulnar neuropathy was not caused by work and second, that she does not meet the diagnostic criteria for CRPS.
4. Dr. Landvater has enjoyed a lengthy treating relationship with Claimant, one that includes a previous diagnosis and successful treatment of RSD in 1997. Dr. Abajian as well had the opportunity to treat Claimant both in 1997 and again in 2005. These providers’ familiarity with Claimant’s presentation over time gives them an advantage in terms of being able to observe symptoms that wax and wane. In contrast, Dr. Ensalada’s evaluation was limited to a single visit.
5. Although Dr. Ensalada’s credentials are impressive, in this case I find Dr. Landvater’s conclusions to be more credible. I conclude, therefore, that Claimant has sustained her burden of proving that the November 2005 work incident caused left ulnar neuropathy and RSD, as a result of which she is entitled to both indemnity and medical benefits.
6. As Claimant has prevailed, she is entitled to an award of costs and attorney fees.
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ORDER:
Based on the foregoing findings of facts and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary disability benefits in accordance with Findings of Fact Numbers 27 and 28 above, with interest from the date such benefits became due and payable in accordance with 21 V.S.A. §664;
2. Medical benefits covering all reasonably necessary medical services and supplies causally related to Claimant’s compensable injury;
3. Costs and attorney fees in an amount to be determined based on Claimant’s timely submission.
DATED at Montpelier, Vermont this 26th day of June 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.

G. D. v. Censor Security (May 29, 2009)

Categories: Workers' Compensation Hearing DecisionTags: , Author:

G. D. v. Censor Security (May 29, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
G. D. Opinion No. 16-09WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Censor Security, Inc.
For: Patricia Moulton Powden
Commissioner
State File No. AA-51771
OPINION AND ORDER
Hearing held in Montpelier on February 18, 2009
Record closed on March 12, 2009
APPEARANCES:
Heidi Groff, Esq., for Claimant
David Berman, Esq., for Defendant
ISSUES PRESENTED:
1. Did Claimant suffer a work-related injury on or about July 19, 2008?
2. If yes, to what workers’ compensation benefits is he entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Dr. Ayer progress note, 1/23/2009
Claimant’s Exhibit 1: Deposition of Nathan Ayer, M.D., M.P.H., January 23, 2009
Claimant’s Exhibit 2: Deposition of Anthony Rock, January 29, 2009
Claimant’s Exhibit 3: Incident report, 8/3/08
Defendant’s Exhibit A: Security Officer exam, 11/15/07
Defendant’s Exhibit B: Incident report, 6/17/08
Defendant’s Exhibit C: Statement of David Cahee, August 5, 2008
Defendant’s Exhibit D: Curriculum vitae, George White, Jr., M.D.
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CLAIM:
Medical benefits pursuant to 21 V.S.A. §640
Temporary total disability benefits pursuant to 21 V.S.A. §642
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Interest pursuant to 21 V.S.A. §664
Costs and attorney’s fees pursuant to 21 V.S.A. §678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
3. Claimant began working for Defendant, a private security services firm, in October 2007. He was assigned to work as a security guard at the Sheraton Hotel in South Burlington. Claimant’s shift ran from 10:00 PM to 6:00 AM. His duties included making periodic tours of both the interior and the exterior of the hotel, which encompassed six buildings of four floors each. Nightly beginning at about 3:00 AM, Claimant also was responsible for placing each guest’s bill, or folio, completely under his or her door. This task required a significant amount of repetitive bending and squatting.
4. On Saturday, July 19, 2008 Claimant was working his scheduled shift. The hotel was full that night, many guests had attended a local beer festival and he had been very busy. Midway through his shift, Claimant was delivering guest folios. As he bent down to place a folio under a guestroom door, he felt a pop in his low back and pain down his left leg.
5. Because the pain in his back and leg was so severe, Claimant had to return to the office and rest before delivering the rest of his folios. Anthony Rock, the night auditor, recalled that Claimant could barely sit down, and was hunched over and limping when he left. Mr. Rock testified that he had never seen Claimant in so much pain before.
6. Claimant had experienced a similar episode of back pain in December 2007, again while delivering folios during a very busy shift at the hotel. Claimant did not seek medical treatment and did not lose any time from work as a consequence of that incident. He worked in pain for about one week afterwards, and then his symptoms resolved. Claimant never reported this episode of work-related back pain to his employer.
7. As he had following the December 2007 episode, Claimant did not initially seek medical treatment after July 19th, as he hoped his pain would resolve on its own. He continued to work for two weeks, though in pain and with difficulty.
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8. There is some dispute as to when Claimant first informed his employer of the July 19th episode and whether he requested time off due to his back and leg pain. Claimant recalled that he telephoned his supervisor, David Cahee, on July 21st and requested that another employee be assigned to work his shift. When Mr. Cahee advised him that no one else was available locally to work, Claimant agreed to report as scheduled, but asked that he not be assigned to work weekends, as those shifts tended to be busier.
9. Claimant testified that he could not recall whether he had specified to Mr. Cahee during the July 21st telephone conversation that the reason he was seeking time off and altered shift assignments was because of his back and leg pain. For his part, Mr. Cahee testified that Claimant made no mention of any back injury during that conversation. To the contrary, Mr. Cahee recalled that the discussion centered on Claimant’s need to reduce his stress so as to better manage an unrelated health condition from which he had suffered previously. In fact, earlier in the summer Claimant had asked not to be scheduled for weekend shifts for just that reason, and Mr. Cahee had been doing his best to accommodate him.
10. Claimant’s symptoms failed to resolve on their own, so on August 3, 2008 he sought medical treatment, first at the hospital emergency room and then with his primary care provider, Dr. Ayer. Dr. Ayer diagnosed severe low back pain with left-sided radiculopathy, and MRI findings confirmed a severe left-sided lateral recess and disc herniation at L4-5. Dr. Ayer determined that Claimant was temporarily totally disabled, and that his condition had been caused by his work activities on July 19, 2008. Ultimately, after a brief course of physical therapy failed to alleviate Claimant’s symptoms completely, Dr. Ayer recommended a surgical consult.
11. With the exception of a single brief notation in one of the emergency room records referencing that Claimant’s July 19, 2008 episode of back pain was related to a fall, all of the medical records consistently report the history of Claimant’s current symptoms as having occurred while delivering guest folios at work on that night. Claimant testified credibly that the reference to a fall was erroneous.
12. At Defendant’s request, Claimant underwent an independent medical evaluation with Dr. White on December 12, 2008. Dr. White did not give an opinion as to whether Claimant’s work activities on July 19, 2008 caused his injury, but acknowledged that his physical findings and MRI results were consistent with the history as Claimant had reported it.
13. As to further treatment, Dr. White acknowledged that it would be reasonable for Claimant to undergo a surgical consult, though he voiced some concern as to whether surgery would completely alleviate Claimant’s symptoms. Depending on the type of surgery undertaken, Claimant’s leg pain might be relieved but his back pain might continue. As an alternative, Dr. White suggested that Claimant consider a course of spinal injections and/or a multidisciplinary rehabilitation program before embarking on a surgical treatment plan.
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14. Dr. White also encouraged Claimant to remain as active as possible, and in that context suggested that he could return to modified-duty work activities. He recommended that Claimant walk as much as possible, that he change positions as needed and that he avoid repetitive bending, twisting, reaching or lifting.
15. In accordance with Dr. White’s suggestion, in January 2008 Defendant, through its attorney, offered Claimant a modified-duty job as a security officer at a local mall. Claimant testified that he drove to the mall one day with an eye towards speaking with Defendant’s on-site staff about the position, but was unable even to walk the short distance from his car to the mall security office without experiencing excruciating pain. On those grounds, Claimant determined that he would be unable to manage the proposed job and through his attorney indicated that he would not return to work in that position.
16. Claimant acknowledged that he never spoke personally with Mr. Cahee about the proposed modified-duty job at University Mall, either before or after he attempted to visit the site. He admitted that he never inquired as to what his specific job duties would be or whether additional accommodations might be available to allow him to perform them.
17. Dr. Ayer testified that he agreed with Dr. White’s proposed modified-duty work restrictions and that it would be reasonable for Claimant to attempt to work in that capacity. He also agreed with Dr. White’s suggestion that Claimant might benefit from the increased mobility involved with working light-duty, but noted that it was equally possible that such activities would worsen Claimant’s pain. Dr. Ayer concluded that if Claimant had experienced excruciating pain just in walking from the parking lot to the mall entrance then it was unlikely that he would be able to tolerate the light-duty job that Defendant had proffered. Dr. Ayer did not offer any opinion as to whether Claimant’s pain, though severe at first, gradually might abate with continued activity.
18. Although it had denied Claimant’s claim from the beginning, Defendant filed a “precautionary” Notice of Intention to Discontinue Benefits (Form 27), effective January 19, 2009, on the grounds that Claimant had refused an offer of suitable modified-duty work.
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).
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2. Defendant here questions the compensability of Claimant’s injury because it was both unwitnessed and late reported. It is true that a claimant may have difficulty sustaining his or her burden of proof when he or she delays filing a workers’ compensation claim for a significant period of time after an alleged injury. In such instances, the trier of fact must evaluate the factual evidence carefully so as to explore any inconsistencies, investigate possible intervening causes and evaluate “hidden or not-so-hidden motivations.” Jurden v. Northern Power Systems, Inc., Opinion No. 39-08WC (October 6, 2008); Russell v. Omega Electric, Opinion No. 42-03WC (November 10, 2003), citing Fanger v. Village Inn, Opinion No. 5-95WC (April 20, 1995).
3. The Commissioner has enumerated four questions to assist in this process. First, are there medical records contemporaneous with the claimed injury and/or a credible history of continuing complaints? Second, does the claimant lack knowledge of the workers’ compensation reporting process? Third, is the work performed consistent with the claimant’s complaints? And fourth, is there persuasive medical evidence supporting causation? Jurden, supra; Larrabee v. Heavensent Farm, Opinion No. 13-05WC (February 4, 2005), citing Seguin v. Ethan Allen, Opinion No. 28S-02WC (July 25, 2002).
4. I see nothing so suspicious about the circumstances of the current claim to justify disqualifying it. True, Claimant’s injury was unwitnessed at the exact moment that it happened, but Mr. Rock, the night auditor, credibly testified as to the symptoms Claimant exhibited shortly thereafter. Given an employee whose job requires that he be working alone in the wee hours of the morning, certainly that is corroboration enough of Claimant’s version of events.
5. Equally true, Claimant failed either to report the injury or to seek medical treatment until two weeks later. This was in keeping, however, with his experience after suffering similar symptoms at work, under almost exactly the same circumstances, in December 2007. On that earlier occasion, Claimant’s symptoms resolved quickly and with no medical attention. It is reasonable to assume that he expected the same uneventful recovery to occur following the July 2008 incident. In that context, his decision not to file an injury report until he realized he would need to seek treatment is understandable.
6. As to medical causation, both Dr. Ayer and Dr. White testified that the mechanism of injury Claimant reported was consistent with the injury with which he presented. And while Dr. White did not comment directly on causation, Dr. Ayer testified with certainty that Claimant’s current condition was caused by his work activities on July 19, 2008.
7. I conclude, therefore, that Claimant has sustained his burden of proving that he suffered a compensable work-related injury while delivering guest folios on July 19, 2008. What remains to be decided are the workers’ compensation benefits to which he is entitled.
8. According to Dr. Ayer, Claimant was totally disabled from working as of the date he first examined him, August 5, 2008. Claimant is entitled to temporary total disability benefits beginning on that date.
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9. I find that Claimant’s entitlement to temporary disability benefits ended as of the effective date of Defendant’s precautionary Form 27, January 19, 2009. I cannot accept as valid Claimant’s conclusion that he was incapable of returning to work in the modified-duty position Defendant had offered when he took no steps to investigate either the parameters of the job or what additional accommodations might be available in order for him to perform it.
10. As for further medical treatment, both Dr. White and Dr. Ayer agree that a surgical consult is a reasonable next step. Having found Claimant’s injury to be compensable, it follows that Defendant is obligated to pay for such a consult. Whether Defendant also will bear responsibility for any surgical treatment plan will depend on medical evidence that is yet to be developed, and therefore remains to be seen. Similarly, it also remains to be seen whether Claimant will be entitled either to additional temporary disability benefits and/or to permanency benefits. These determinations as well will depend on the course of his future medical treatment and recovery.
11. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $1,171.67 and contingent attorney’s fees in accordance with Workers’ Compensation Rule 10.1220. An award of costs to a prevailing claimant is mandatory under the statute. I find that Claimant has substantially prevailed here and therefore his costs are awarded.
12. As for attorney’s fees, these lie within the Commissioner’s discretion. Again, I find that Claimant has substantially prevailed, and therefore award him the contingent attorney’s fees he has requested.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary disability benefits from August 5, 2008 through January 19, 2009;
2. Interest on the above amounts pursuant to 21 V.S.A. §664;
3. Medical benefits covering all reasonably necessary medical services and supplies causally related to the July 19, 2008 injury, including but not limited to the cost of a surgical consult as referenced in Conclusion of Law 10 above;
4. Costs and attorney’s fees in accordance with Conclusion of Law 11 above.
DATED at Montpelier, Vermont this 29th day of May 2009.
___________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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