Annemieke Meau v. The Howard Center Inc (January 24, 2014)
STATE OF VERMONT
DEPARTMENT OF LABOR
Annemieke Meau Opinion No. 01-14WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
The Howard Center, Inc.
For: Anne M. Noonan
Commissioner
State File No. BB-59825
OPINION AND ORDER
Hearing held in Montpelier, Vermont on November 15, 2013
Record closed on December 20, 2013
APPEARANCES:
Thomas Nuovo, Esq., for Claimant
Erin Gilmore, Esq., for Defendant
ISSUES PRESENTED:1
1. Is Claimant’s shingles disease causally related to her March 3, 2010 compensable
injury?
2. What amounts, if any, is Claimant entitled to receive for unreimbursed mileage
charges, medical bills, co-payments, pharmacy expenses and/or temporary total
disability benefits (including cost of living adjustments and dependency benefits)
as a consequence of her compensable injuries?
3. To what extent, if any, should interest and/or penalties be assessed on any of the
above amounts?
1 Claimant initially claimed entitlement to benefits causally related to her use of Lumigan eye drops, a medication
prescribed in 2012 for treatment of increased intraocular pressure. She withdrew this claim at the conclusion of the
formal hearing.
2
EXHIBITS:
Joint Exhibits I-III: Medical records
Claimant’s Exhibit 1: Mileage chart
Claimant’s Exhibit 2: Summary of co-payments, with supporting documentation
Claimant’s Exhibit 3: Summary of pharmacy expenses, with supporting documentation
Claimant’s Exhibit 4: Summary of expenses owed
Claimant’s Exhibit 5: Summary of temporary disability benefits, interest and penalties
owed
Claimant’s Exhibit 6: Blue Cross Blue Shield of Vermont, paid claims
Claimant’s Exhibit 7: Photograph of Claimant’s scalp
Defendant’s Exhibit A: Curriculum vitae, Nancy Binter, M.D.
CLAIM:
Medical benefits pursuant to 21 V.S.A. §640(a)
Temporary total disability benefits (including dependency benefits and cost of living
adjustments) pursuant to 21 V.S.A. §§642 and 650
Interest, penalties, costs and attorney fees pursuant to 21 V.S.A. §§650(e), 664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was
her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the
Department’s file relating to this claim.
3. Claimant worked for Defendant as a mental health counselor at the H.O. Wheeler School
in Burlington.2 She holds a bachelor’s degree in social work and master’s degrees in
education and counseling, and is certified in Vermont as a licensed mental health
counselor. Currently she is 58 years old.
2 In addition to her employment for Defendant, at the time of her injury Claimant was concurrently employed by the
Town of Essex as a middle school guidance counselor.
3
Claimant’s March 2010 Work Injury and Subsequent Medical Course
4. On March 3, 2010 Claimant was at work at the H.O. Wheeler School when she was
called to assist in restraining a child who had become uncontrollable. At one point during
the episode, Claimant was holding the child from behind, with her arms underneath him
and his back to her chest, when he head-butted her with such force that she lost her
balance. Claimant fell back against a cement wall and then down on the base of her
spine. Somehow during the scuffle, she suffered two large cuts on her left arm. In
recalling the episode subsequently, she was unsure whether she had lost consciousness or
not. Within an hour, she felt pain in her neck and lower back.
5. Defendant accepted Claimant’s cervical spine and lower back injuries as compensable
and began paying workers’ compensation benefits accordingly.
6. Claimant’s medical course since March 2010 has been long and complicated, particularly
with respect to her cervical injuries. Initially diagnosed with a left-sided cervical strain,
by April 2010 she was complaining as well of severe headaches and dizziness. In the
years since, subsequent specialist evaluations (neurological, orthopedic,
neuropsychological, pain management and physical medicine, among others), have
addressed a wide range of additional symptoms, including chronic left-sided neck pain,
left shoulder pain, short-term memory loss and other cognitive impairments. These
complaints have yielded varying diagnoses, among them occipital neuralgia, possible C7
cervical radiculopathy, torticollis, mild post-concussive syndrome, traumatic brain injury,
mild mood disorder, anxiety and/or depression.
Shingles
7. Of particular importance to the pending claim, on January 18, 2011 Claimant first sought
treatment for an accelerating rash with burning pain and blisters on the back of her head
and neck. This was the approximate location of the cervical pain and posterior headaches
she had been reporting since shortly after her work injury, and for which she had sought
emergency room treatment just one week previously.
8. Claimant’s rash was diagnosed as shingles. Shingles is a painful skin rash caused by the
same virus (varicella zoster) that causes chickenpox. After a childhood infection, the
virus does not disappear, but rather remains dormant in infected sensory nerve cells.
Many years later, the virus can become reactivated, and will migrate to the skin, causing
a rash that typically appears in the same dermatomal distribution as the infected nerve.
9. As for what causes the zoster virus to reactivate as shingles, the medical research is
inconclusive. The risk of contracting shingles increases with age, and immune system
compromise also appears to play a role. According to some studies, stress and physical
trauma also might act as triggers for the disease. However, the mechanism by which any
of these factors causes the virus to erupt remains poorly understood, and there are times
when a patient presents with shingles for which no cause at all can be identified.
4
10. If diagnosed early enough, a shingles outbreak can be treated with antiviral medication,
which reduces the severity of the symptoms and promotes faster healing. For this reason,
treatment providers often make a presumptive diagnosis based on the patient’s clinical
presentation, and then administer antivirals prophylactically.
11. Claimant’s January 2011 shingles outbreak (a diagnosis later confirmed by biopsy) was
treated with antivirals, though it is unclear whether the medication was effective. One
week later, the rash was still present on her head and neck, and had spread to her face and
left ear as well. She continued to suffer from severe, burning pain, “like bees stinging
you,” according to her description. She could not refrain from scratching the lesions on
her scalp, which itched “like poison ivy.” Clumps of hair fell out, and large patches of
skin became ulcerated. At times she scratched so hard that the lesions bled. In the
ensuing months, at various times she was diagnosed with impetigo, an infection
superimposed on top of the underlying shingles lesions.
12. Claimant’s symptoms were indicative of post-herpetic neuralgia, a complication that
afflicts fewer than ten percent of shingles patients. It causes neuropathic-type pain in a
dermatomal distribution, which can be both severe and chronic. Claimant’s complaints
of burning pain, unrelenting itchiness, sensitivity to light touch and facial numbness are
all consistent with the condition.
13. Claimant treated for her initial shingles outbreak with a variety of providers, including
Dr. Huston, an infectious disease specialist, Dr. Huyck, an occupational medicine
specialist, emergency room physicians and a dermatologist. By mid-March 2011 the
virus was no longer replicating. Unfortunately, however, her post-herpetic neuralgia
symptoms have continued in severe fashion to this day.
14. Claimant was treated on two subsequent occasions for possible shingles outbreaks, first
in July 2011 and again in December 2011. The July episode came one day after she had
fallen backwards onto a potted plant; subsequently she developed a rash on her left cheek
and ear and complained of searing, intermittent left eye pain as well. The December
episode came shortly after she was administered a shingles vaccine, and presented as a
rash on her left arm. Unlike the initial January 2011 outbreak, neither of these
subsequent outbreaks was confirmed by biopsy. Rather than shingles, therefore, it is
possible that the rashes were self-induced, a consequence of severe itching and scratching
related to post-herpetic neuralgia and/or impetigo.
5
Expert Medical Opinions as to Causal Relationship between Shingles and Work Injury
15. As noted above, Finding of Fact No. 9 supra, medical research has not yet conclusively
established the mechanism by which the virus that causes chickenpox in a child
reactivates years later as shingles in an adult. The parties presented conflicting expert
medical evidence regarding the most likely trigger for the outbreak Claimant suffered in
January 2011, and whether it was causally related to her March 2010 work injury.
(a) Dr. Backus
16. Dr. Backus, an occupational medicine specialist, originally was retained to conduct an
independent medical evaluation on Defendant’s behalf in July 2010. Following a reevaluation
in April 2011, he concluded that there was a causal relationship between
Claimant’s March 2010 work injury and her January 2011 shingles outbreak. According
to his analysis, Claimant’s immune system likely had been weakened, either by the
steroids she had been prescribed to treat her work injury and/or by the chronic stress she
had experienced since. As noted above, Finding of Fact No. 9 supra, medical research
has identified immune system compromise as a possible risk factor leading to activation
of the shingles virus.
17. Dr. Backus did not testify at formal hearing, and therefore I cannot determine the extent
of his experience and expertise in evaluating and/or treating shingles. Nor was any
evidence introduced to establish the strength of the causal association among steroid
medications (how much, at what dosage and for how long), a suppressed immune system
and reactivation of the zoster virus. For these reasons, and without more specific
information as to the basis for his conclusion, I find his opinion of limited value.
(b) Dr. Huston
18. Dr. Huston, an infectious disease specialist, treated Claimant’s shingles and impetigo
outbreaks between March and November 2011. In his initial office note, dated March 17,
2011, he made the following statement as to etiology:
With respect to the etiology of [Claimant’s shingles, complicated by postherpetic
neuralgia], it most likely stems from the stress of her recent injury
and perhaps the repeated episodes of torticollis.
19. It is unclear whether the “recent injury” to which Dr. Huston referred in this statement
was in fact the March 2010 work injury; I find that common usage of the term “recent”
typically implies an event closer in time than one year previous. It also is unclear why
Dr. Huston implicated Claimant’s “repeated episodes of torticollis” as possibly
contributing to her shingles. No evidence was introduced identifying torticollis, a
condition caused by muscle spasms in the neck, as being causally linked to reactivation
of the zoster virus. Dr. Huston did not testify at formal hearing, and did not otherwise
provide any clarifying information. For that reason, I find his conclusory opinion
unpersuasive.
6
(c) Dr. Huyck
20. Dr. Huyck, a board certified specialist in occupational and environmental medicine,
treated Claimant’s post-herpetic neuralgia from February 2011 until July 2013. In the
course of her clinical practice, Dr. Huyck has both diagnosed and treated patients with
shingles. Dr. Huyck testified on Claimant’s behalf at formal hearing.
21. In Dr. Huyck’s opinion, to a reasonable degree of medical certainty Claimant’s shingles
and post-herpetic neuralgia were causally related to her March 2010 work injury. As
grounds for this conclusion, she cited to a “solid collection” of articles in the medical
literature in which cases of post-traumatic shingles were studied. One such article was a
case study in which an outbreak of shingles was found to be causally related to a
traumatic injury because (a) the patient had no other risk factors, and (b) the timing and
location of the outbreak correlated with the injury. Another study found that 38 of 100
patients had suffered recent trauma as the single precipitating event for the development
of shingles, again with the outbreaks occurring at the injury site. Still other studies have
reported cases of laryngeal shingles following intubation, and ophthalmic shingles after
cataract operations, both examples of so-called “scheduled” trauma.
22. In her formal hearing testimony, Dr. Huyck discussed the two types of “reaction
pathways” by which the shingles virus is believed to be reactivated in adults. One is an
immunosuppressive pathway, whereby the body becomes unable to fight the zoster
infection. The other is a more mechanical or local pathway, whereby physical trauma to
the area in which the infected nerve cells are located somehow disrupts the dormant virus
and reactivates it.
23. In Claimant’s case, Dr. Huyck concluded that both pathways likely contributed to the
reactivation of the shingles virus. The mechanical pathway was implicated because the
location of her outbreak was in the same region associated with her work injury. The
immunosuppressive pathway was implicated not by the most common risk factors, which
Dr. Huyck identified as HIV infection, kidney failure or immunosuppressive drugs,3 but
rather by the physical stress on the body that occurs during the healing process.
3 Notably, Dr. Huyck did not identify Claimant’s use of steroid medications as sufficiently immunosuppressive to
qualify as a risk factor, as Dr. Backus had postulated, see Finding of Fact No. 16 supra.
7
24. In her testimony, Dr. Huyck referenced a second source of physical trauma that could
have supplied the mechanical pathway for Claimant’s January 2011 shingles outbreak – a
cervical epidural steroid injection that Dr. Borello, a pain management specialist,
administered in mid-September 2010. Dr. Borello’s contemporaneous treatment notes
reflect that the procedure was “uneventful,” and that Claimant tolerated it “without
apparent complications.” However, Claimant recalled the procedure differently. At
formal hearing, she testified that during the injection “all of this blood started to come
out,” both on her face and onto the exam table. Four days after the injection, she
presented to the emergency room with increased pain, not only in her neck but also in her
lower back and left leg. Some weeks later, she described being hypersensitive to touch in
the area of her left neck and shoulder, and in early November she reported nerve pain
“like swelling pieces of glass” in her neck. In January, while seeking emergency room
treatment for left-sided neck pain just one week before her shingles rash appeared, she
expressed concern about swelling in her left neck at the injection site. Claimant
attributed all of these symptoms to as-yet undetected shingles, caused in some fashion by
Dr. Borello’s injection.
25. Dr. Huyck’s formal hearing testimony was somewhat unclear regarding whether some
complication from the September 2010 epidural steroid injection may have contributed to
cause Claimant’s January 2011 shingles outbreak. Based on the credible medical
evidence, I find ample reason to question whether Claimant’s recollection of the
procedure was accurate.4 As Dr. Huyck testified, furthermore, the symptoms that
typically precede a shingles outbreak, such as numbness, tingling and nerve pain,
commonly occur within a week of the rash itself. The symptoms Claimant described in
October and November 2010 occurred well before that time frame. For these reasons, I
find any claimed association between Claimant’s September 2010 cervical injection and
her January 2011 shingles outbreak too speculative to credit.
26. As to whether it is reasonable to attribute Claimant’s January 2011 shingles outbreak to
trauma resulting from her work injury some ten months earlier, Dr. Huyck did not
specifically address this in her testimony. The studies she referenced were not admitted
into evidence, and therefore I am unable to determine the time frame upon which their
causal association findings were based. Lacking the objective support these studies
might (or might not) lend, I find Dr. Huyck’s opinion unpersuasive.
(d) Dr. Binter
27. Defendant’s medical expert, Dr. Binter, strongly disputed any claimed association
between Claimant’s work injury and her shingles. Dr. Binter is a board certified
neurosurgeon. Although she has retired from clinical practice, she has in the past
diagnosed patients with shingles. Dr. Binter examined Claimant at Defendant’s request
in May 2012, and testified on Defendant’s behalf at formal hearing.
4 As noted above, the contemporaneous treatment notes do not report any bleeding or other complications, and as
Dr. Borello credibly asserted in his November 2010 office note, it would be “very unlikely” that a cervical steroid
injection would cause increased pain in the lower back or left leg. And while the January 2011 emergency room
records report Claimant’s “concern” regarding swelling in her left neck, no such finding was noted on exam.
8
28. As Dr. Huyck had, Dr. Binter relied on the medical literature to inform her opinion
regarding the most likely cause of shingles in Claimant’s case. Although she did not cite
to specific studies, her research identified first age and then immune system compromise
as the risk factors with the strongest support in the literature. More speculative risk
factors included both psychological stress and physical trauma. As to the latter, Dr.
Binter acknowledged that numerous articles have been published regarding a possible
association, but in her estimation their findings are vague and the relationship has not yet
been scientifically proven.
29. Even were the studies linking physical trauma to shingles to be believed, in Dr. Binter’s
opinion the ten-month delay between Claimant’s March 2010 work injury and her
January 2011 shingles outbreak made any possible causal connection unlikely. Again, as
was the case with Dr. Huyck’s opinion, no studies were introduced either to prove or
disprove this analysis.
30. Dr. Binter also questioned whether in fact Claimant’s March 2010 work injury likely
resulted in any significant head trauma at all, as Dr. Huyck apparently presumed. The
contemporaneous medical records reported that Claimant had not lost consciousness, and
as Dr. Binter observed during her evaluation, even two years later Claimant was able to
recall the incident “in exquisite detail,” which would not ordinarily be expected of a
patient who has suffered a major concussion or traumatic brain injury. For these reasons,
in Dr. Binter’s opinion Claimant likely suffered no more than a mild concussive
syndrome as a result of her work injury. Even assuming a scientifically established
association between head trauma and shingles, Dr. Binter found it implausible that such
an injury would have been severe enough to trigger reactivation of the shingles virus. I
find this aspect of Dr. Binter’s analysis credible.
31. Having rejected physical trauma as a probable cause, Dr. Binter identified psychological
stress as a more likely trigger for Claimant’s shingles. Specifically, Dr. Binter noted the
following reference in a March 14, 2011 medical record as the basis for her conclusion:
Subjective. Really difficult year. Two nephews killed in separate car
accidents, one niece died of anaphylactic shock. Devastating year.
32. Based solely on this notation, which she acknowledged was “a pretty soft finding,” Dr.
Binter concluded as follows:
I do not feel that [Claimant’s shingles] are causally related to her work
injury. I think it’s far more likely related to the stress from the precipitous
death of her relatives, which is a little bit more temporal and far more
stressful than the work injury.
9
33. In addition to the notation upon which Dr. Binter relied, the medical records contain
numerous references to other stressful circumstances in Claimant’s life, such as selling
her home, coping with chronic pain (whether from her work injury or otherwise) and
parenting a teenage son with medical issues of his own. It is unclear why Dr. Binter did
not consider any of these stressors to be possible triggers for Claimant’s shingles
outbreak. On cross examination she admitted that she had “no idea” when the relatives
referred to in the above medical record actually died, whether some months or even years
previously. Without this information, it is entirely speculative to conclude, as Dr. Binter
did, that the deaths were either “more temporal” or “far more stressful” than the work
injury was. For this reason, I find Dr. Binter’s opinion in this regard entirely
unpersuasive.
Mileage, Medical Charges and Co-Payments, Pharmacy Expenses and Temporary Total
Disability Benefit Shortages
34. With no objection from Defendant, at formal hearing Claimant was allowed to introduce
various exhibits detailing the amounts she claims Defendant owes her for unreimbursed
mileage, medical bill co-payments and pharmacy expenses, totaling $1,013.44, and also
the amount she claims her group health insurer is owed for unreimbursed medical
expenses, totaling $2,454.33. Claimant also produced an exhibit detailing her claimed
entitlement to unpaid dependency benefits, cost of living adjustments and other
temporary total disability benefit shortages, which she asserts totaled $21,456.89
(including interest and penalties) as of August 9, 2013.5
35. Some of the amounts Claimant claims are due remain unpaid because they relate to
treatment for shingles, which Defendant consistently has maintained is not causally
related to her work injury and therefore not its responsibility to pay. Other amounts
(particularly those relating to the temporary total disability benefit shortfalls) are not
defensible on those grounds. Defendant failed almost from the beginning to calculate
Claimant’s weekly benefit correctly, and failed to include the dependency benefit due on
account of her minor child. Later it failed to make required annual cost of living
adjustments. As a consequence of these omissions, on May 3, 2013 the Department’s
workers’ compensation specialist issued an interim order that all arrearages be paid, with
interest and penalties in accordance with 21 V.S.A. §650(e) and Workers’ Compensation
Rule 3.1200. I find that penalties and interest were appropriately assessed and therefore
that this order was appropriately issued.
5 It is unclear to what extent this amount remains in arrears, and also whether additional arrearages have
accumulated since the exhibit was prepared.
10
36. As the focus of the formal hearing was solely on whether Claimant’s shingles is causally
related to her work injury, neither party addressed the question whether she has reached
an end medical result, either for that condition or for her accepted injuries.6 As to the
latter, Defendant has not yet filed a Notice of Intention to Discontinue Benefits (Form
27).
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts
essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must
establish by sufficient credible evidence the character and extent of the injury as well as
the causal connection between the injury and the employment. Egbert v. The Book Press,
144 Vt. 367 (1984). There must be created in the mind of the trier of fact something
more than a possibility, suspicion or surmise that the incidents complained of were the
cause of the injury and the resulting disability, and the inference from the facts proved
must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941);
Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The primary disputed issue here is whether a causal relationship exists between
Claimant’s compensable March 2010 work injury and her shingles disease. The parties
introduced conflicting expert medical evidence on this point. In such situations, the
commissioner traditionally uses a five-part test to determine which expert’s opinion is the
most persuasive: (1) the nature of treatment and the length of time there has been a
patient-provider relationship; (2) whether the expert examined all pertinent records; (3)
the clarity, thoroughness and objective support underlying the opinion; (4) the
comprehensiveness of the evaluation; and (5) the qualifications of the experts, including
training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC
(September 17, 2003).
6 Defendant has never filed an Agreement for Temporary Compensation (Form 32), and therefore it is difficult to
determine which of Claimant’s other injuries it has accepted as compensable. There seems little doubt that her
cervical and lower back injuries are causally related to the March 2010 accident, but Defendant’s position as to her
claimed traumatic brain injury is less clear. Certainly more attentive adjusting and closer adherence to Vermont’s
workers’ compensation rules would have provided more clarity.
11
3. Neither of the experts who testified at formal hearing gave particularly compelling
opinions regarding the etiology of Claimant’s shingles. Dr. Huyck’s opinion was
weakened significantly by her failure to account for the ten-month delay between
Claimant’s work injury and her first shingles outbreak. Dr. Binter’s opinion was
rendered incredible by its reliance on a single reference to an unrelated psychological
stressor as determinative, a conclusion even she admitted was “soft” and speculative.
Neither expert addressed whether Claimant’s age might have been a trigger for the
disease. Both doctors asserted that the medical literature supported their respective
positions, but neither did so with sufficient specificity for me to evaluate the strength of
their assertions. For example, while both asserted that the medical research has identified
“stress” as a possible risk factor, each applied a different interpretation of the term – Dr.
Huyck inferred physical stress from the body’s healing process, Dr. Binter inferred
psychological or emotional stress. As a result, I have difficulty attributing the necessary
objective support to either of their opinions.
4. Neither of the experts who testified appeared to possess the level of training, experience
or expertise sufficient to establish superior knowledge on the causation question,
furthermore. Perhaps Dr. Huston, who specializes in treating infectious diseases, could
have filled in the necessary gaps had he testified. As it is, however, his opinion was
expressed in a single sentence in a single office note. Given the current state of medical
research, from which I can conclude only that the mechanism by which trauma might
trigger shingles is both complex and poorly understood, this simply is not enough to carry
the day.
5. Because Claimant bears the burden of proof on the causation issue, in the final analysis it
is her expert’s credibility that matters most. More to the point, merely stating a
conclusion to a reasonable degree of medical certainty does not necessarily make it so,
even if no more credible opinion is offered. See, e.g., Seymour v. Genesis Health Care
Corp., Opinion No. 53-08WC (December 29, 2008). In this case, despite the weaknesses
in Dr. Binter’s analysis, I conclude that Dr. Huyck’s causation opinion is not strong
enough on its own to persuade me.
6. I thus conclude, based on the evidence presented, that Claimant has failed to sustain her
burden of proving the necessary causal relationship between her work injury and her
shingles to establish compensability. That being the case, I conclude that Defendant is
not responsible for whichever unpaid mileage expenses, medical bill co-payments,
prescription charges and/or unreimbursed medical expenses are referable to her treatment
for shingles. As the parties did not offer evidence or address their proposed findings to
specific charges, I cannot make a more specific ruling at this time.
12
7. Notwithstanding my conclusion that Claimant’s shingles is not compensable, I conclude
that Defendant is liable for all of the temporary total disability payment shortages
referred to in Finding of Fact No. 34 supra, as well as any arrearages that have
accumulated since August 9, 2013. Defendant’s liability for these shortages arises not
from its refusal to pay for benefits attributable to shingles, but rather from its failure to
properly calculate the benefits owed on account of injuries it has never properly denied or
disputed.
8. In a similar vein, I conclude that Defendant is liable for ongoing temporary total
disability benefits until such time as it lawfully terminates them in accordance with
Workers’ Compensation Rule 18.1000.
9. Claimant has requested an award of costs totaling $462.25 and attorney fees totaling
$37,743.50. As all of her costs appear to relate to the primary disputed question –
whether her shingles is causally related to her work injury – and as she failed to prevail
on that issue, I conclude that she is not entitled to an award of costs. 21 V.S.A. §678(a);
see Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003).
10. As for attorney fees, I conclude that a considerable amount of the hours billed were to
address problems that arose as a consequence of Defendant’s failure to properly adjust
Claimant’s claim in accordance with Vermont’s workers’ compensation rules and
procedure. With that in mind, I conclude that it is appropriate to award attorney fees of
$12,581.16, or one-third of the total requested.
13
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED
to pay:
1. Whichever unpaid claims for mileage expenses, medical bill co-payments,
prescription charges and/or unreimbursed medical expenses are referable to
injuries other than Claimant’s shingles disease, with interest as calculated
according to 21 V.S.A. §664;
2. Temporary total disability payment shortages totaling $21,456.89 as of August 9,
2013, plus any arrearages that have accumulated since that date, with interest and
penalties on any amounts still outstanding as calculated according to 21 V.S.A.
§§650(e) and 664 and Workers’ Compensation Rule 3.1200;
3. Ongoing temporary total disability benefits in accordance with 21 V.S.A. §642
and continuing until lawfully terminated in accordance with Workers’
Compensation Rule 18.1000; and
4. Attorney fees totaling $12,581.16, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 24th day of January 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.
