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STATE OF VERMONT

DEPARTMENT OF LABOR

Michael Hall v. Safelite Group Opinion No. 10-16WC

1. By: Phyllis Phillips, Esq.

Administrative Law Judge

For: Anne M. Noonan

Commissioner

State File No. FF-58850

OPINION AND ORDER

Hearing held in Montpelier on February 26, 2016

Record closed on March 28, 2016

APPEARANCES:

Charles Powell, Esq., for Claimant

James O’Sullivan, Esq., for Defendant

ISSUES PRESENTED:

1. 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?

2. If yes, does Defendant’s obligation extend to paying for dentures to replace

Claimant’s extracted teeth?

EXHIBITS:

Joint Exhibit I: Medical records

Claimant’s Exhibit 1: Opinion letter of Brittany McKenna, MS, CRC, January 12,

2016

CLAIM:

Medical benefits pursuant to 21 V.S.A. §640(a)

Costs and attorney fees pursuant to 21 V.S.A. §678

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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 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

accordingly.

4. 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.

5. 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.

6. 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

upper extremity.

7. 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

feverish.

8. 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.

9. After two rounds of antibiotics prescribed by his primary care provider failed to

clear the infection, in September 2015 Claimant sought treatment with Dr.

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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

unsalvageable.

10. 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.

11. 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

extractions.

12. 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.

13. 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.

14. The charges for Dr. Weldon’s services, including both his initial evaluation and

his extractions, total $2,710.00.

15. 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.

16. 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

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distress. Salivary flow is also affected, which has been shown as well to cause

intestinal distress.

17. 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

elbow pain.

18. 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.

19. 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

analysis credible.

20. 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

accordingly.

CONCLUSIONS OF LAW:

1. 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.

2. 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

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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.

3. 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[5] (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).

4. 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

the contrary.

5. 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

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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.

6. 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

rehabilitation efforts.

7. 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.

8. 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).

9. 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

claim.

ORDER:

Based on the foregoing findings of fact and conclusions of law, Defendant is hereby

ORDERED to pay:

1. 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).

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2. Costs and attorney fees in amounts to be determined, in accordance with 21 V.SA.

• 678.

DATED at Montpelier, Vermont this 15th day of July 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.