STATE OF VERMONT
DEPARTMENT OF LABOR
Michael Hall v. Safelite Group Opinion No. 10-16WC
- By: Phyllis Phillips, Esq.
Administrative Law Judge
For: Anne M. Noonan
State File No. FF-58850
OPINION AND ORDER
Hearing held in Montpelier on February 26, 2016
Record closed on March 28, 2016
Charles Powell, Esq., for Claimant
James O’Sullivan, Esq., for Defendant
- Is Defendant obligated to pay for treatment of Claimant’s dental infection by
virtue of its responsibility under 21 V.S.A. §640(a) to provide reasonable medical
services necessary for treatment of his January 8, 2014 compensable work injury?
- If yes, does Defendant’s obligation extend to paying for dentures to replace
Claimant’s extracted teeth?
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Opinion letter of Brittany McKenna, MS, CRC, January 12,
Medical benefits pursuant to 21 V.S.A. §640(a)
Costs and attorney fees pursuant to 21 V.S.A. §678
FINDINGS OF FACT:
- 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’
- Judicial notice is taken of all relevant forms and correspondence contained in the
Department’s file relating to this claim.
- Claimant worked for Defendant as a windshield installer. On January 8, 2014 he
injured his left elbow while removing a windshield from a glass rack. Defendant
accepted the injury as compensable and paid workers’ compensation benefits
- Claimant treated conservatively for his injury, initially diagnosed as a left elbow
strain, with rest, ice, anti-inflammatories and physical and occupational therapy.
Unfortunately, his symptoms, which included both constant aching and occasional
sharp pains, persisted.
- Following consults with both an orthopedist and a physiatrist, in December 2014
Claimant was referred to Dr. Horton, a pain specialist, for further evaluation. Dr.
Horton diagnosed complex regional pain syndrome (CRPS). As treatment, he
recommended a stellate ganglion nerve block.
- Although initially hesitant, ultimately Claimant accepted Dr. Horton’s proposed
treatment plan. In July 2015 he underwent his first nerve block. Almost
immediately thereafter, he reported significant pain relief throughout his left
- Given the first block’s success, in August 2015 Claimant presented for a second
nerve block. At some point in the intervening weeks, however, he had developed
a dental infection, with pain and swelling on the right side of his face. He had not
seen a dentist, but rather was self-medicating with some antibiotics he had left
over from a prior infection. These had apparently been somewhat, but not wholly,
effective. Dr. Horton observed that the right side of his face was still tender, his
right upper incisor was severely decayed, his gums were red and he was slightly
- Dr. Horton could not administer a nerve block while Claimant was suffering from
an incompletely controlled infection. Doing so could put him at risk for serious
infectious complications from the procedure itself. To be safe, Claimant needed
to be off antibiotics and free from all symptoms of infection for at least two weeks
before nerve block treatment for his work-related left elbow injury could resume.
- After two rounds of antibiotics prescribed by his primary care provider failed to
clear the infection, in September 2015 Claimant sought treatment with Dr.
McBeth, a dentist. Upon examination, Dr. McBeth noted significant dental
issues, with several areas of abscess and infection, multiple areas of decay and
bone loss into the jaw, and both periodontal infection (in and under the gums) and
endodontic breakdown (into the nerves and structure of the teeth themselves).
Virtually every tooth had some level of infection, and most were anatomically
- Dr. McBeth acknowledged in his formal hearing testimony that Claimant likely
had been suffering from significant dental issues for quite some time. He was
already missing a number of teeth, though the record does not indicate the
circumstances of their loss, whether due to decay or trauma. Claimant had
reported to him that he was extremely fearful of dentists, and while Dr. McBeth
did not take a complete dental history, he understood that Claimant had not
undergone any dental treatment for some time.
- After conducting a tooth-by-tooth assessment, Dr. McBeth concluded that the
treatment of choice was to extract all of Claimant’s upper teeth, and all but two of
his lower teeth. Because of the degree of infection and the complicated nature of
the procedure, he referred Claimant to Dr. Weldon, an oral surgeon, for the
- Dr. McBeth credibly testified that while antibiotics might have succeeded in
temporarily calming the acute infection in Claimant’s tooth, they were incapable
of resolving its source, which was under his gums and in the bone itself. Like
removing a splinter from an infected finger, the only way to clear the infection in
Claimant’s mouth was to extract his teeth.
- On December 14, 2015 Dr. Weldon extracted 14 teeth, leaving Claimant with
only his two bottom canines, as Dr. McBeth had recommended. Lower dentures
are more apt than upper dentures to become unseated; thus, having the two
canines to anchor the lower prosthesis allows for better fit and function.
- The charges for Dr. Weldon’s services, including both his initial evaluation and
his extractions, total $2,710.00.
- With his teeth extracted, Claimant’s infection cleared. Thereafter, in January and
February 2016 he underwent two additional nerve blocks. Unfortunately, these
were less effective than his first one, with only minimal and temporary pain relief.
- Pending resolution of the current dispute, since December 2015 Claimant has had
neither teeth nor dentures. Dr. McBeth credibly testified as to his need for
dentures from a medical perspective. Without teeth, his ability to chew and digest
food is severely compromised. The act of chewing breaks food down to particle
size so that it can get through the intestinal system and be digested properly.
Larger chunks of food are more difficult to digest, which can lead to intestinal
distress. Salivary flow is also affected, which has been shown as well to cause
- Beyond just the medical issues, Claimant credibly described the practical
difficulties he has encountered since his teeth were extracted. His mouth is
constantly dry. He speaks with a lisp. His diet consists solely of soft foods with
limited nutritional value. Prior to his extractions he had no such difficulties.
Even in September 2014, when his front tooth was actively infected, he could eat
what he wanted, so long as he was careful about where he chewed. Overall, he
felt that his teeth functioned fairly well, and had no plan to undergo dental
treatment until it became necessary in order to continue treatment for his left
- Most troubling, Claimant credibly testified that since his extractions he is
embarrassed by his appearance, with what he described as “two fangs” sticking
out when he tries to speak. He considers it a sign of disrespect not to look at
somebody while talking to them, but he avoids doing so now.
- Claimant’s vocational rehabilitation counselor, Brittany McKenna, reinforced the
negative consequences of his appearance from a vocational perspective. She
acknowledged that this is just one of many considerations that an employer will
weigh in evaluating a job applicant’s eligibility and qualifications. Nevertheless,
first impressions and dental hygiene certainly have an impact on employment
opportunities. In her opinion, obtaining dentures “would be an asset” to
Claimant’s efforts to network and achieve his vocational goals. I find this
- Dr. McBeth estimates that the dentures Claimant now requires will cost
$3,902.00. The charge for his initial evaluation was $222.00. He has not charged
Claimant for any intervening examinations, so as not to trigger collections action.
Should his treatment be deemed compensable, he will charge Defendant
CONCLUSIONS OF LAW:
- The disputed issue in this claim concerns the extent of an employer’s
responsibility to pay for treatment of a non-work-related condition so as to enable
necessary treatment for a work injury thereafter. Specifically in this case, the
question is whether and to what extent Defendant should be obligated to pay for
the dental treatment Claimant underwent prior to resuming injection therapy for
his compensable work injury.
- Vermont’s workers’ compensation statute obligates an employer to furnish
“reasonable . . . medical services” necessitated by an injured worker’s
compensable injury. 21 V.S.A. §640(a). It is generally accepted, in Vermont and
elsewhere, that when treatment for a work injury aggravates a preexisting
condition or causes further complications, the entire result is compensable. See,
e.g., Jackson v True Temper Corp., 151 Vt. 592, 594-595 (1989); Allstate
Insurance Co. v. The Industrial Commission of Arizona, 616 P.2d 100, 102
(Ariz.App. 1980) and cases cited therein. The question then becomes whether the
same reasoning should apply here, where treatment for the non-work-related
condition, though not aggravated in any way by the work injury, nevertheless is
required as a condition precedent to effectively treating the work injury. Id.
- The Vermont Supreme Court has not yet had occasion to consider the so-called
“ancillary treatment” issue. Courts in other states have accepted the principle that
if effective treatment of a compensable injury requires ancillary treatment for an
otherwise non-work-related condition, in appropriate circumstances the injured
worker may be entitled to benefits covering the entire course of treatment. See,
e.g., Palmer v. State ex rel. Wyoming Workers’ Safety & Compensation Division,
192 P.3d 125 (Wyo. 2008) (lumbar fusion surgery encompassing levels above and
below level of work-related injury deemed ancillary); Public Service Co. of
Colorado v. Industrial Claim Appeals Office, 979 P.2d 584 (Colo.App. 1999)
(treatment for bipolar disorder ancillary to compensable neck surgery);
Arrowhead Press, Inc. v. Industrial Commission of Arizona, 653 P.2d 371
(Ariz.App. 1982) (bronchitis treatment ancillary to compensable knee surgery);
see also, 5 Lex K. Larson, Larson’s Workers’ Compensation §94.03 (Matthew
Bender Rev. Ed.) and cases cited therein; but see Rank v. Lindblom, 459 N.W.2d
247 (S.D. 1990) (treatment of preexisting pulmonary condition not compensable
where disease was significant and should have been treated regardless of
impending knee surgery).
- Defendant here conceded at formal hearing that it was medically necessary to
clear Claimant’s dental infection prior to resuming treatment for his compensable
injury. And while it refused to concede the question whether clearing the
infection required extracting his teeth, it proffered no expert evidence to refute Dr.
McBeth’s testimony that this was in fact the case. Nor did it proffer any evidence
to establish that Claimant’s teeth were in such poor condition that he likely would
have had to undergo dental treatment in September 2015 even had Dr. Horton not
suspended treatment for his work injury. Claimant himself credibly testified to
- I conclude from the facts in this case that in order to adequately treat Claimant’s
work injury, it became medically necessary to clear his dental infection by
extracting his teeth. That treatment is therefore compensable, and Defendant is
obligated to pay the reasonable charges associated with it. I stress the factspecific
nature of my determination, however. Here, the evidence in support is
both clear and undisputed. In another case, the nature of the ancillary treatment at
issue, the extent to which it is medically necessary as a condition precedent to
treating the work injury, and/or the injured worker’s previously established plan
to undergo it might dictate a different result.1 See State ex rel. Wyoming Workers’
Compensation Division v. Girardot, 807 P.2d 926, 930 (Wyo. 1991) (applying a
“rule of reason” to deny treatment for unrelated heart surgery), cited with
approval in Palmer, supra.
- Having concluded that Defendant is obligated to pay for the extractions, it
remains for me to determine whether it also must pay for the dentures Claimant
now needs. Again, Defendant failed to proffer any expert evidence to rebut Dr.
McBeth’s credible opinion that without teeth, Claimant’s ability to chew and
digest food is severely compromised. Nor did it proffer evidence to dispute Ms.
McKenna’s opinion that having dentures would assist in his vocational
- Vermont’s workers’ compensation statute defines the term “injury” to include the
“cost of acquiring . . . prosthetic devices. . . .” 21 V.S.A. §601(7). Dentures are
“prosthetic devices constructed to replace missing teeth,”
https://en.wikipedia.org/wiki/Dentures. The undisputed evidence clearly
established that replacement teeth are both medically necessary and vocationally
advantageous. That being the case, I can no more imagine absolving Defendant
of responsibility for furnishing Claimant with prosthetics than I can imagine
doing so if he had lost an arm or a leg instead.
- I thus conclude that Defendant is responsible for paying the reasonable charges
associated not only with Dr. McBeth’s and Dr. Weldon’s treatment of Claimant’s
dental infection to date, but also with Dr. McBeth’s plan to fit Claimant with
dentures, as required under 21 V.S.A. §§601(7) and 640(a).
- As Claimant has prevailed on his claim for benefits, he is entitled to an award of
costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall
have 30 days from the date of this opinion within which to submit his itemized
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby
ORDERED to pay:
- Medical benefits covering reasonable treatment of Claimant’s dental infection,
including the costs associated with evaluating and extracting his existing teeth and
fitting and furnishing replacement dentures, in accordance with 21 V.S.A.
- 640(a); and
1 For example, weight management procedures such as gastric bypass surgery often offer therapeutic
benefits, but the evidence may be too speculative to establish that they will lead directly to a more
favorable medical outcome for the work injury so as to justify a compensability determination. See, e.g.,
Verizon Business Network Services, Inc. v. McKensie, 823 N.W.2d 418 (Iowa App. 2012); Rodriguez v.
Hirschbach Motor Lines, 707 N.W.2d 232 (Neb. 2005).
- Costs and attorney fees in amounts to be determined, in accordance with 21 V.SA.
DATED at Montpelier, Vermont this 15th day of July 2016.
Anne M. Noonan
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.