STATE OF VERMONT
DEPARTMENT OF LABOR
Beth Farr v. Rite Aid Corporation Opinion No. 24-16WC
- By: Phyllis Phillips, Esq.
Administrative Law Judge
For: Anne M. Noonan
Commissioner
State File No. X-63385
OPINION AND ORDER
Hearing held in Montpelier on December 11, 2015
Record closed on March 23, 2016
APPEARANCES:
William Skiff, Esq., for Claimant
David Berman, Esq., for Defendant
ISSUE PRESENTED:
Did Claimant’s November 2014 surgery constitute reasonable medical treatment for her
June 2006 compensable work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Curriculum vitae, Joseph Phillips, M.D., Ph.D.
Defendant’s Exhibit A: Curriculum vitae, Leonard Rudolf, M.D.
CLAIM:
All workers’ compensation benefits to which Claimant proves her entitlement as causally related
to her November 2014 spine surgery
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
- 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.
Claimant’s 2006 Work Injury and Initial Treatment
- Claimant worked for Defendant as a retail clerk. On June 19, 2006 she was reorganizing
some boxes of liquor that had been delivered earlier in the day and placed in a cramped
closet. While so engaged, she caught her foot between two boxes, twisted, fell and hit
her back on a metal doorjamb. She heard and felt a pop in the area of her left hip, with
pain radiating down her left leg.
- Following a July 2006 MRI study, Claimant was diagnosed with a large left lateral disc
herniation at L4-5 impinging on the L4 nerve root. Defendant accepted the injury as
compensable, and began paying workers’ compensation indemnity and medical benefits
accordingly.
- Initially Claimant treated conservatively for her injury, with physical therapy, pain
medications and a course of epidural steroid injections. She continued to report
symptoms consistent with the MRI findings, most notably constant low back and left hip
pain, with pain, numbness and tingling radiating into her left leg, calf and foot. These
were exacerbated by most activities, including prolonged standing, sitting and walking.
Her sleep was impaired, and she reported falling occasionally due to her leg giving out.
- Conservative treatment having failed to alleviate her symptoms, in October 2006
Claimant underwent surgery with Dr. Phillips, a neurosurgeon. This was a minimally
invasive microsurgical procedure, the goal of which was to decompress the L4 nerve root
by removing herniated disc material and widening the opening (in medical terms, the
neural foramen) through which the nerve root traveled.
- In the months following her 2006 surgery, Claimant experienced some symptom relief.
Most notably, she reported that the radiating pains down her left leg had resolved.
However, the numbness and tingling persisted, and ultimately came to include her right
leg as well. By March 2007 she was reporting worsening pain radiating from her lower
back into her hips and legs bilaterally. An MRI study documented findings consistent
with ongoing L4 nerve root compression.
- To treat her recurrent symptoms, Claimant underwent additional courses of physical
therapy, epidural steroid injections and home exercise. In addition, her treating pain
management specialist, Dr. Rauwerdink, discussed weight control, smoking cessation and
increased physical activity as a means of addressing her discomfort on a long-term basis.
From the evidence, it is unclear whether, to what extent and for how long she attempted
these lifestyle changes. In any event, while her right-sided radicular symptoms abated,
her low back pain persisted and her left leg symptoms steadily worsened. Her activities
continued to be limited by discomfort.
3
- In June 2007 Claimant underwent electrodiagnostic evaluation with Dr. Ayers, a
neurologist. The results documented normal nerve conductions throughout her lower
extremities, but also findings consistent with ongoing sensory nerve recovery, which
would account for her continued paresthesias. Unfortunately, the process by which
nerves heal is very slow, and with that in mind Dr. Ayers predicted that Claimant’s
radicular symptoms would improve only gradually.
- Over the ensuing months, Claimant continued to report low back and left leg pain. She
rejected proposed interventional options (medial branch blocks, radiofrequency lesioning
and/or additional epidural steroid injections) and also suggestions that she consider a
psychological approach to managing her pain. She demonstrated fair to good endurance
for activity during a work hardening program, but reported increased pain both before
and after each session, to such an extent that she did not feel the program benefitted her.
Instead, she continued her exercises at home.
Claimant’s 2009 Surgery
- In January 2008 Claimant returned to Dr. Phillips, again complaining of low back and left
leg pain. An MRI study did not document any large disc herniations, but revealed some
substantial narrowing of the spinal canal in the same location (L4-5 level on the left) as
her 2006 surgery. It also showed degenerative changes at both L2-3 and L3-4, to a
degree considered advanced for a patient of her age (29 at the time).
- Dr. Phillips’ office note reflects that he discussed these findings with Claimant in depth.
He explained that there likely was no reasonable surgical treatment option for her low
back pain – simply decompressing nerves is rarely beneficial, and fusions directed at
controlling back pain per se are as likely to fail as they are to succeed. However, as to
the radicular pain and weakness in her left leg, Dr. Phillips posited that surgically
opening the spinal canal at the L3-4 and L4-5 levels on the left would create more room
for the L4 and L5 nerve roots, which potentially would alleviate those symptoms. I find
this analysis credible.
- Dr. Phillips also engaged in a discussion of sorts with Dr. Chard, the orthopedic surgeon
who examined Claimant at Defendant’s request in June 2008. Dr. Chard raised several
concerns as to whether the surgery Dr. Phillips had proposed was medically indicated, all
of which led him to conclude that Claimant was “less likely than the average patient to
have a satisfactory outcome.” Nevertheless, he acknowledged that for Dr. Phillips to reexplore
the L5 nerve root and remove residual disc fragments might be of some benefit. I
concur, and find that Dr. Phillips adequately justified his decision to perform a second
surgery.
- Claimant underwent the second surgery, during which Dr. Phillips decompressed the left
L4 nerve root by widening the spinal canal from L3 to L5, in January 2009. Defendant
accepted the procedure as causally related to her work injury, and paid workers’
compensation benefits accordingly.
4
- As before, Claimant experienced some symptom relief following surgery, but it was
incomplete. She continued to complain of numbness and pain radiating down her left leg,
and localized low back pain as well. A September 2009 MRI did not reveal any dramatic
interval change from her pre-surgical condition – there was an appropriate degree of
scarring, but no evidence of a fresh disc herniation. Dr. Phillips characterized these
findings as “very assuring,” adding that despite her residual complaints, the MRI showed
“no reason for additional intervention.” He anticipated that she was approaching an end
medical result.
- In December 2009 Defendant’s independent medical examiner, Dr. Chard, determined
that Claimant had reached an end medical result, with a 12 percent whole person
permanent impairment attributable to her work injury. At her attorney’s referral, in
August 2010 Claimant underwent a second permanency evaluation with Dr. Banerjee,
who concurred that she had reached an end medical result. In October 2010 the
Department approved the parties’ Agreement for Permanent Partial Disability
Compensation (Form 22), which established December 24, 2009 as the end medical result
date and compromised the permanency at the midpoint between the two ratings.
- The medical records corroborate that although Claimant had reached an end medical
result by December 2009, functionally she remained significantly restricted. A February
2010 functional capacity evaluation documented limited tolerance for sitting, standing,
lifting, carrying and bending. Later, in the context of his August 2010 permanency
evaluation, Dr. Banerjee remarked that she remained “severely disabled with pain, unable
to perform routine activities at home.”
- With the exception of a visit to her primary care provider in April 2012, between
November 2009 and March 2014 Claimant did not seek any treatment for low back or left
leg complaints. Nevertheless, she credibly testified that her symptoms steadily worsened
during this time. The numbness down her left leg occurred with greater frequency, and
the shooting pains became increasingly severe, to the point where by 2012 she felt she
could hardly walk. She managed her symptoms as best she could with home exercise.
She often cried in the bathroom so that her children would not see her.
- Claimant credibly testified that she delayed seeking further treatment from Dr. Phillips
while her children were younger, because she feared he would recommend fusion surgery
and she did not want to burden them with what she anticipated would be an extended
recovery. However, by 2014 her symptoms had become unbearable, so she sought an
appointment.
5
Claimant’s 2014 Surgery
- Dr. Phillips examined Claimant in June 2014. In preparation for that visit, in March 2014
she had undergone another MRI. Upon review, Dr. Phillips reported that the findings
depicted a new, “frankly recurrent” L4-5 disc herniation, which he described as “quite
substantial, [it] clogs up both the foramen and the origin of the L5 nerve.” Dr. Phillips
believed the resulting nerve root compression was the cause of Claimant’s intensified
symptoms. As treatment, he recommended another minimally invasive surgery, much
like the one she had undergone in 2006. As with both prior surgeries, Dr. Phillips’ intent
was once again to decompress the L4 and L5 nerve roots by removing the encroaching
material from the disc space.
- Dr. Phillips did not testify at hearing, but his office notes were clear and thorough. In
them, he credibly described an “extensive discussion” with Claimant regarding the
relative merits of another minimally invasive decompression surgery versus spinal fusion.
Noting specifically that she felt the radicular symptoms in her buttock and left leg took
precedence over her low back pain, he concluded that it was appropriate to proceed with
decompression, notwithstanding the risk of yet another recurrence thereafter. Even with
decompression, he anticipated that a future fusion surgery might still become reasonable
in the event that her symptoms later gravitated more towards low back pain.
- Claimant underwent the third surgery on November 12, 2014. Notably, although Dr.
Phillips’ surgical findings did not document any free disc fragments in the area of the L4
and L5 nerve roots, there was significant bony overgrowth and scar tissue. Dr. Phillips
described these as “potentially” compressive, and therefore carefully removed them.
- As with her prior surgeries, Claimant realized some improvement following her
November 2014 surgery, but it was short-lived, and not nearly as substantial as she had
hoped. It has allowed her to remain off opioid pain medications, but functionally she
remains severely restricted. She was in obvious physical distress at formal hearing.
When asked to differentiate between low back and leg pain, her frustration was palpable
– “I don’t differentiate, it’s all just pain to me, . . . it all links together.” She was equally
frustrated when asked if the surgery had made her symptoms more “tolerable.” “Overall,
I’m living with it,” she responded, but then credibly described feeling nauseous because
“I hurt so much.”
Expert Medical Opinions regarding 2014 Surgery
- Defendant’s medical expert, Dr. Rudolf, reviewed Claimant’s medical records and
deposition testimony for the purpose of rendering an opinion whether her November
2014 surgery constituted medically necessary treatment causally related to her 2006 work
injury. Dr. Rudolf is a board certified orthopedic surgeon with an active clinical practice.
He issued a written report and also testified at formal hearing.
6
- In Dr. Rudolf’s opinion, Dr. Phillips’ 2006 surgery had properly addressed the specific
injury Claimant had suffered at work – he removed the herniated disc material that likely
had been compressing her L4 nerve root at the L4-5 level. In the years following, MRI
studies documented spinal stenosis, a degenerative process that caused narrowing
throughout her spinal canal. Noting that neither of her subsequent surgeries revealed any
loose, soft disc material, Dr. Rudolf concluded that the likelihood of a recurrent disc
herniation attributable to Claimant’s 2006 work injury was questionable, not only at the
time of her 2014 surgery but dating back to her 2009 procedure as well. According to his
analysis, a more probable cause for the worsening symptoms that precipitated both
surgeries was ongoing deterioration related to spinal stenosis.
- Dr. Rudolf acknowledged on cross examination that Claimant’s first (2006) and second
(2009) surgeries both entailed removing some portion of the bone comprising her L4-5
facet joint. Scar tissue formed in the area as a result. The prior surgeries thus changed
the normal anatomy of her spine at that level, further weakening a joint that likely was
already undergoing degenerative changes. I find this aspect of his analysis credible.
- As for whether Claimant’s 2014 surgery was medically necessary, given that two prior
surgeries had failed to provide sustained symptom relief Dr. Rudolf believed the
probability that she would improve with a third surgery was “extremely low.” He placed
her in the category of patients suffering from “failed back surgery syndrome,” meaning
those for whom surgical treatments proved unsuccessful despite evidence-based
indications on both clinical examination and imaging studies. The unfortunate result for
such patients is a chronic pain condition that is unlikely to improve with either medical or
surgical management.
- Dr. Rudolf noted that as with Claimant’s prior surgeries, the stated intent of Dr. Phillips’
third surgery was to address the persistent complaints of radicular pain and numbness
down her left leg by decompressing the involved nerves. Yet the electrodiagnostic
testing she had undergone in 2007, Finding of Fact No. 9 supra, had documented
essentially normal nerve conductions throughout her lower extremities. In Dr. Rudolf’s
analysis, without evidence to confirm that Claimant’s symptoms derived from significant
nerve dysfunction, it was unlikely that any of Dr. Phillips’ surgeries would provide
effective relief. I find this analysis credible.
- Nevertheless, Dr. Rudolf stopped short of concluding that Dr. Phillips’ third surgery
failed to meet the standard of care for a patient in Claimant’s position. Had his intent
been to alleviate her chronic low back pain, nerve decompression surgery would have
been inappropriate. But the decision to treat her radicular symptoms surgically was a
matter between her and her doctor.
7
- Although he did not testify at formal hearing, Dr. Phillips responded to the opinions
expressed in Dr. Rudolf’s report by letter to Claimant’s attorney. He confirmed that
although her symptoms included some element of low back pain, “the ones that brought
her to me [in 2014] were more in my mind related to the L4 nerve root.” Moreover, in
his opinion the pathology he treated, that is, the L4 nerve root in its foramen at the L4-5
level, resulted directly from her 2006 work injury, which had caused changes at that same
location. I find this analysis credible.
CONCLUSIONS OF LAW:
- 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, see, e.g.,
Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941), 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, supra at 19; Morse v. John E. Russell Corp., Opinion
No. 40-92WC (May 7, 1993).
- The disputed issue in this claim is whether Claimant’s November 2014 surgery
constituted reasonable treatment for her 2006 work injury, such that Defendant is
obligated to pay the associated workers’ compensation benefits under 21 V.S.A. §640(a).
- Vermont’s workers’ compensation statute requires an employer to provide “reasonable”
medical services and supplies to an injured employee. 21 V.S.A. §640(a). Treatment can
be unreasonable either because it is not medically necessary or because it is not related to
the compensable injury. Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January
20, 2010). The Commissioner has discretion to determine whether a particular medical
treatment is reasonable based on the circumstances of each case. MacAskill v. Kelly
Services, Opinion No. 04-09WC (January 30, 2009).
- The parties presented conflicting expert medical testimony regarding both aspects of the
reasonableness determination. In such cases, the Commissioner traditionally uses a fivepart
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).
8
- Considering the causal relationship question first, I conclude from the credible evidence
that the required link between Claimant’s 2006 work injury and her treatment in
November 2014 has been established. True, Defendant’s expert, Dr. Rudolf, sought to
attribute her worsening symptoms to the degenerative processes at work throughout her
spine. At the same time, however, he acknowledged that her prior surgeries had caused
scar tissue to form and otherwise weakened the area in and around the L4-5 facet joint,
and thus were contributing factors as well. Dr. Rudolf conceded that the 2006 surgery
was directly related to Claimant’s work injury. Defendant having long ago accepted the
2009 surgery as causally related as well, Dr. Rudolf’s assertion to the contrary comes far
too late in the game to be legally relevant. See, e.g., Smith v. Fletcher Allen Health Care,
Opinion No. 51-08WC (December 15, 2008). The chain of causation thus runs directly
from Claimant’s 2006 work injury through her first and second surgeries. It ends with
the increasingly intolerable symptoms that prompted her to seek treatment again in the
months prior to November 2014.
- The question whether Dr. Phillips’ November 2014 surgery was medically necessary
requires me to carefully weigh the conflicting expert medical evidence.1 To prevail,
Claimant must establish that as of the time the treatment was undertaken, it was likely to
improve her condition, either by relieving symptoms and/or by maintaining or increasing
functional abilities. Shaffer v First Choice Communications, Opinion No. 15-14WC
(October 21, 2014).
- Fairness dictates that the determination whether a treatment is or is not reasonably
calculated to lead to further improvement must be made prospectively, at the time it is
undertaken, not retrospectively and with the benefit of hindsight. Luff v. Rent Way,
Opinion No. 07-10WC (February 16, 2010); Lukic v. Rhino Foods, Opinion No. 49-
09WC (December 15, 2009). The practice of medicine is often inexact, and whether a
particular treatment will prove efficacious cannot be known with certainty until it is
attempted. A doctor need not guarantee success, but neither can he or she merely
speculate that it might result in improvement. The standard is probability, not possibility.
- Here, Dr. Rudolf conceded that for Dr. Phillips to treat Claimant’s radicular symptoms
surgically was within the standard of care. He further acknowledged that the decision to
do so was properly a matter between her and her doctor. As the treating physician, Dr.
Phillips’ opinion is entitled to some deference. See, e.g., Galbicsek v. Experian
Information Solutions, Opinion No. 51-09WC (December 22, 2009).
1 Noting that Claimant did not offer Dr. Phillips’ testimony, either by deposition or at formal hearing, Defendant
asserts that she has failed to provide the evidence necessary to sustain her burden of proof. See, e.g., Lapan v.
Berno’s, Inc., 137 Vt. 393 (1979) (stating necessity for expert medical testimony to establish causal link between
employment, injury and benefits sought). Such a rigid interpretation of the case law undermines both the spirit and
intent of the workers’ compensation formal hearing process, which is designed to be speedy, inexpensive and
relatively informal, Workers’ Compensation Rule 17.1100. Medical opinions routinely find expression in medical
records and written reports. If cogently stated, they are entitled to be considered to the same extent as any other
evidence.
9
- Yet although Dr. Phillips clearly explained his rationale for undertaking a third surgery,
his perspective seems to have been simply that it was worth trying. He has failed to
convince me that it was likely to improve Claimant’s condition to any appreciable extent,
which is the reasonableness standard I must impose.
- In contrast, Dr. Rudolf’s opinion on the medical necessity issue was clear, thorough and
objectively supported. Drawing both on the lack of objective findings on
electrodiagnostic testing and on Claimant’s failure to realize sustained improvement from
her prior surgeries, he concluded that the likelihood of success from a third surgery was
“extremely low.” I concur.
- I acknowledge that Claimant realized some benefit from her third surgery, however shortlived
it proved to be. I must believe that Dr. Phillips was anticipating more sustained
improvement; yet according to Dr. Rudolf’s credible analysis, he had no reasonable basis
for doing so.
- I conclude that Claimant has failed to sustain her burden of proving that Dr. Phillips’
November 2014 surgery was medically necessary. She therefore has failed to establish
that the treatment was reasonable under §640(a). For that reason, I conclude that
Defendant is not obligated to pay the associated workers’ compensation benefits.
- As Claimant has failed to prevail on her claim for benefits, she is not entitled to an award
of costs and attorney fees.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for workers’
compensation benefits causally related to her November 2014 surgery is hereby DENIED.
DATED at Montpelier, Vermont this 12th day of December 2016.
_______________________
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.