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N. B. v Verizon (June 12, 2008)

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N. B. v Verizon (June 12, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
N. B. Opinion No. 24-08WC
By: George K. Belcher
v. Hearing Officer
Verizon For: Patricia Moulton Powden
Commissioner
State File No. J-13315
OPINION AND ORDER
Hearing held on May 2, 2008 in Montpelier, Vermont.
Record Closed, May 21, 2008
APPEARANCES:
Christopher McVeigh, Esq., for the Claimant
J. Christopher Callahan, Esq., for the Defendant
EXHIBITS:
Joint Medical Exhibit: Medical Records of the Claimant
Claimant’s Exhibit 1: Photo of Claimant’s vehicle following accident
Defendant’s Exhibit 1: Curriculum Vitae of Dr. Tony Tannoury
ISSUE:
Is Claimant’s proposed double disc replacement and single level fusion surgery, to be performed by Dr. Delamarter in Santa Monica, California, a reasonable and necessary treatment option and should such treatment be authorized under Vermont Workers’ Compensation Law?
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FINDINGS OF FACT:
1. This matter was heard as an expedited hearing under Rule 7.4000 or the Workers’ Compensation and Occupational Disease Rules.
2. The Claimant, Nicholas Bonanno, suffered a work-related injury in a motor vehicle accident during the scope of his employment on December 22, 1995. Following the accident the Claimant had increasing lower back and leg pain. He received extensive, conservative treatment including injections and physical therapy for pain.
3. In November of 1998 the Claimant was in another motor vehicle accident on his way to physical therapy. The second accident was accepted as work related by the Defendant.
4. The Claimant continued to have lower back and right leg pain and, over time, the injections for pain became less effective. Despite many attempts at conservative treatment, the Claimant’s back pain has persisted to the current date.
5. In February of 2004 the Claimant had a “discogram”. This is a procedure which tests the structural integrity of the discs within the spine. This test determined that he had disc problems at the L5-S1 level and the L4-L5 level. It was proposed that he have a “two-level, 360 degree fusion surgery”. This type of surgery greatly concerned the Claimant because the fusion surgery was said to be irreversible with an 80% chance of success. Moreover, the Claimant was concerned that a result of the spinal fusion surgery would be a loss of spinal flexibility. The rigid spine caused by a fusion surgery transmits shocks and vibrations to the next level of spine above or below the fused disc.
6. In August of 2005, the Claimant went out of work despite accommodations. He had constant pain and trouble sitting or standing for long periods of time. He has not returned to work since August of 2005.
7. In 2007 additional tests were done on the L5-S1 level and it was determined that there was a mild spondylolithesis (slippage) at this level. Likewise it was determined that there were additional disk problems at the L4-L5 and L3-L4 levels. Dr. Rand proposed a three level fusion surgery. (Tab 26, Joint Medical Exhibit)
8. The Claimant has researched various back treatments. He learned of Dr. Rick Delamarter who is an expert in synthetic disc replacement surgery. In March of 2007, Dr. Delamarter evaluated the Claimant in California. Additional diagnostic tests were done in August of 2007. Dr. Delamarter determined that the Claimant was a good candidate for synthetic disc replacement surgery in the L4-L5 and L4-L3 levels of his spine. Dr. Delamarter determined that the Claimant would need a fusion surgery of his L5-S1 level. Dr. Delamarter proposed to do a hybrid surgery (one which combines a fusion of one level of the spine with disc replacements at other levels of the spine). The Claimant was scheduled for this surgery to be done on January 22, 2008.
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9. In mid-November, 2007, the Defendant scheduled the Claimant to be evaluated by Dr. Tony Tannoury. Dr. Tannoury gave the Claimant the recommendation that he have a fusion surgery to the L5-S1 level but that he not have disc replacement or fusion to the other two levels.
10. Based upon the opinion of Dr. Tannoury, the Defendant refused to pay for the surgery offered by Dr. Delamarter and the scheduled surgery was cancelled. Thus, the issue in this case is essentially whether the proposed surgery by Dr. Delamarter is reasonable.
11. Dr. Rick Delamarter is a board certified orthopedic surgeon. He became board certified in 1989. He has been an Associate Clinical Professor at the UCLA School of Medicine. He is the co-founder and director of the West Coast Spine Institute. He is credited in over 68 professional publications and has presented numerous times concerning artificial disc replacement. He is an instructor for surgeons who desire to be certified in the use of “Prodisc” artificial discs. He participated as a surgeon in one of the 17 centers that studied artificial discs for the U. S. Food and Drug Administration (FDA) approval in the United States.
12. The use of synthetic discs in back surgery has been studied in the United States following its use in Europe for some time. Dr. Delamarter is quite familiar with the use of synthetic discs because his workplace was a FDA approved site for the FDA study. The study had one “arm” which studied single level synthetic disc replacement. That study is complete and the FDA has approved the use of single-level, synthetic disc replacements in the United States. The use of synthetic discs in more than one level was another “arm” of the study and has not been acted upon by the FDA because the conclusions of that “arm” of the study have not been completed. The FDA action on this part of the study might not be complete for another 18 months.
13. Dr. Delamarter testified that the use of synthetic discs has been approved for single level disc replacements and that double synthetic disc replacements can be done legally “off-label”. The term “off-label” refers to the practice of prescribing drugs for a purpose outside of the scope of the drug’s label as approved by the FDA. While the FDA approves drugs and medical devices which are safe and effective, once a drug or device is approved, physicians may prescribe the drug or use the device as they deem medically effective. According to Dr. Delamarter, use of devices and drugs “off-label” is a common practice and is legal.1
14. Dr. Delamarter has performed several hundred double disc replacements with synthetic discs. His conclusions are that the synthetic disc replacements are significantly superior to fusions because the resulting range of motion is greater, the recovery time is one-third of the recovery time of fusion surgery, and the cost is less. The disc replacement decreases the “adjacent level process” significantly. According to Dr. Delamarter, under almost every measure, the outcome of synthetic disc replacement is better than fusion for those candidates who qualify. He characterized both the single level and double level synthetic disc replacements as safe and efficacious.
1 For a discussion of the legal effect of “off-label” practice see Conclusion of Law number 5.
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15. Dr. Delamarter examined the Claimant and is in a treating-physician role with him. He found that the Claimant needed a fusion at the L5-S1 level but that he would benefit from a synthetic disc replacement at levels L4-L5 and L4-L3. Dr. Delamarter was asked whether it might be possible to do the fusion first and then the disc replacements if the fusion surgery did not resolve the Claimant’s pain. Dr. Delamarter was unequivocal. His firm opinion was that both the L4-L5 level and L3-L4 were “pain generators” and needed disc replacement. He was also of the opinion that it would not be good practice to do the surgery twice. The scarring and lesions, which would result from the first surgery, would increase risk to the Claimant if the surgery were done in stages.
16. Dr. Tony Tannoury is an orthopedic surgeon who became board certified in July of 2005. He completed medical school in 1993. He has been an assistant professor of Orthopedic Surgery at the University of Virginia and Boston University.
17. Dr. Tannoury examined the Claimant and his medical records. His examination took place on November 28, 2007. He reviewed two discographies which appear to be those dated February 2, 2004 and March of 2007. (It does not appear that he reviewed the discogram of March of 2008 and it was unclear whether he reviewed the August 2007 discogram since that test report was not referred to by date as were the other discograms referenced in his report.) The CAT scan of March 18, 2008 showed abnormal morphology of the disc at L4-L5. The discogram of March 18, 2008 indicated abnormal disc morphology at L4-L5 and typical central burning pain with pressure (indicating “concordant” pain).
18. Dr. Tannoury determined that the L5-S1 level needed a fusion. (In this he agreed with Dr. Delamarter.) He concluded however that the L4-L5 was “mildly degenerative” and not the source of pain. He also concluded that the L3-L4 level was normal. He felt that disc replacement at both of the upper levels would be “excessive”.
19. Dr. Tannoury has never performed disc replacement surgery although he has attended conferences concerning it, including at least one in which Dr. Delamarter was a presenter. Dr. Tannoury performs a form of minimally invasive, interior fusion surgery which he recommended to the Claimant.
20. Counsel for the Claimant expended 128.1 hours of work in representation of the Claimant in this claim and incurred costs in the amount of $1,314.55.
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CONCLUSIONS OF LAW:
1. In Worker’s Compensation cases the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963).
2. When choosing between conflicting medical opinions, the Department has looked at several factors: (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. 37-03 WC (Sept. 17, 2003).
3. Applying these criteria to the competing medical opinions of Dr. Tannoury and Dr. Delamarter, it is clear that Dr. Delamarter is the more experienced of the two. He has a longer history of practice, and a wider breadth of practice than that of Dr. Tannoury. Dr. Delamarter is experienced in both fusion surgery and disc replacement, whereas Dr. Tannoury has not performed disc replacement surgery and has no direct experience with it. Dr. Delamarter is the treating surgeon for the Claimant while Dr. Tannoury is not. Dr. Tannoury did not have the benefit of the March 18, 2008 discogram and CAT scan, although portions of it were read to him during his testimony. Dr. Delamarter did have access to this test report before his testimony.
4. An employer is required to furnish reasonable surgical and hospital services to an injured employee. 21 VSA Sec. 640(a). The employee may select a health care provider upon notice to the employer of his or her dissatisfaction with any provider selected by the employer. 21 VSA Sec. 640(b). The commissioner retains authority to determine issues of reimbursement and medical necessity. e.g. 21 VSA Sec. 640(b) and (d). See also Kobel v. C&S Wholesale Grocers, Opinion No. 28-99 WC (August 2, 1999); Bertrand v. McKernon Group, Opinion No. 20-03 WC (April 16, 2003)(expedited hearing regarding cervical fusion surgery); Morrisseau v. State of Vermont, Opinion No. 19-04 (May 17, 2004)(expedited hearing denying gastric by-pass surgery).
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5. A proposed surgery may be found to be reasonable where it is recommended by the treating physician and where the surgery has an objective basis or foundation. Beaudin v. H.P. Hood, Inc. Opinion No. 39-99 WC (September 3, 1999). Surgical treatment for the Claimant’s spine has been recommended for three levels by both Dr. Rand and Dr. Delamarter. Dr. Rand, Dr. Delamarter and Dr. Tannoury all recommend fusion surgery for the L5-S1 level of the spine. Dr. Delamarter’s recommendation of the hybrid surgery with artificial disc replacement at the L3-L4, and L4-L5 levels has an objective basis and foundation. With significant experience in both types of surgery, his opinion is that the proposed hybrid surgery would have a better result, a quicker recovery period, and a lower cost. Moreover, the argument that this particular type of surgery is beyond the FDA approval, does not mean that the proposed surgery is not reasonable. This same argument was made in the case of State ex rel. Bax Global, Inc v. Indus. Comm., 2007 Ohio 695 (Ohio App. 10th Dist., Feb. 20, 2007). In that case, the court refused to set aside a ruling of the Industrial Commission that the Claimant should have a Charite artificial disc replacement at L3-L4, even though that artificial disc had been approved by the FDA for use at the L4-L5 or L5-S1 levels. The employer argued that the use of an artificial disc at the L3-L4 level was “off-label” and not approved by the FDA. The court approved the Commissioner’s determination that the FDA “neither regulates practice of medicine nor restricts uses to those which have been officially approved.” Id. Page 10, para. no. 37. An “off-label” use of a FDA approved device can be approved where the claimant’s need for the surgery and the propriety of the proposed surgery are shown by competent medical opinions. Id.
6. I conclude that the proposed surgery offered by Dr. Delamarter (a hybrid, fusion and double disc replacement) is a reasonable and necessary surgery for the Claimant and that the defendant is obligated to pay for the reasonable costs associated with it.
7. The Defendant argues in its Proposed Findings of Fact that the Department has “no jurisdiction to order pre-authorization of medical treatment”. (See page 2, Defendant’s Proposed Findings of Fact and Conclusions of Law.) This issue has been ruled on in the case of Bebon v Safety-Kleen/Sedgwick at both the Department and the Superior Court levels (See Bebon v. Safety-Kleen/Sedgwick, State File No. T-19416, Denial of Motion For Summary Judgement dated August 21, 2007 and Bebon v. Safety-Kleen/Sedgwick, CMS, Chittenden Superior Court Docket No. 1286-05, Entry Order dated January 9, 2007.)
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ORDER:
Therefore, based upon the foregoing findings of fact and conclusions of law, the Commissioner determines that:
1. The Claimant’s proposed hybrid surgery with Dr. Delamarter is reasonable medical treatment and should be paid for by the Defendant, if performed;
2. Attorney’s fees of 128.1 hours be awarded to the Claimant at the rate of $90.00 per hour pursuant to the Department’s fee schedule. Costs in the amount of $1,314.55 are also awarded to the Claimant.
Dated at Montpelier, Vermont this 12th day of June 2008.
____________________________
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. Sec. 670, 672.

N. B. v. Verizon (July 30, 2008)

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N. B. v. Verizon (July 30, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
N. B. Opinion No. 24S-08WC
By: George K. Belcher
v. Hearing Officer
Verizon For: Patricia Moutlon Powden
Commissioner
State File No. J-13315
APPEARANCES:
Christopher McVeigh, Esq., for the Claimant
J. Christopher Callahan, Esq., for the Defendant
RULING ON DEFENDANT’S MOTION FOR STAY
Defendant moves the Department to grant a stay pursuant to 21 V.S.A. Section 675 concerning the Department’s decision dated June 12, 2008. The Claimant opposes the requested stay.
The Defendant seeks a stay arguing that the four criteria set forth in In re Insurance Services Offices, Inc., 148 Vt. 634, 635 (1987) are met. Those criteria are: (1) that the Defendant has a strong likelihood of success on appeal; (2) that there will be irreparable injury to the Defendant if the stay is not granted; (3) that a stay will not substantially harm the other party; and (4) that the stay will serve the best interests of the public. Id.
The Commissioner has ruled that the granting of a stay should be the exception, not the rule. Bodwell v. Webster Corporation, Opinion No. 62S-96 WC (Dec. 10, 1996). A simple factual dispute is not a sufficient basis upon which to grant a stay. Id. The issue in this case is the reasonableness and necessity of a particular operation on the Claimant’s back. The Defendant argues that it will prevail on appeal because a single disc replacement would be sufficient treatment rather than the multi-level disc surgery, which was approved in the decision. Dr. Delamarter’s testimony at the hearing was quite clear and persuasive that the Claimant has multi-level disc problems and that a comprehensive, multi-disc replacement surgery is the better approach. While the defendant may disagree with the evidence or the conclusion of the Department, this does not equate to a strong likelihood of success on appeal.
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Next, the Defendant argues that the Commissioner’s decision is advisory, premature, and unripe. In appropriate cases, the Department has made rulings concerning the reasonableness of proposed treatments. See Conclusion of Law No. 4 in the basic decision. Such decisions are not precluded as being advisory or “unripe” under the Workers’ Compensation Statute, particularly where an employer has refused in advance to pay for a treatment which is recommended by a treating physician. See Bebon v. Safety-Kleen/Sedgwick, State File No. T-19416, Denial of Motion for Summary Judgment, August 21, 2007 and Bebon v. Safety-Kleen/Sedgwick, CMS, Chittenden Superior Court Docket No. 1286-05, Entry Order Dated January 9, 2007. Since this argument has not prevailed previously at either the Department or the Superior Court level, the likelihood of success is weak rather than strong.
The Defendant argues that it will suffer irreparable harm if the stay is not granted since it will have been denied its ability to contest the medical bills generated by the surgery. This argument is spurious since the issues involved in this case were the reasonableness and necessity of the surgery. The charges for the surgery were not litigated and have not been acted upon. Thus, if there is an issue concerning unreasonable charges for the surgery, those issues may still be litigated. On the other hand, irreparable harm would likely arise to the Claimant if the stay were granted. The Claimant was scheduled to have the proposed surgery in January of 2008. The surgery did not happen at that time in order for the Defendant’s medical expert to examine and evaluate the Claimant. The Claimant participated in this exercise, but disagreed with the conclusion of this expert. The matter was then submitted for decision to the Department. We are now some seven months after the Claimant would have had his surgery but for the consideration of the Defendant’s evidence and arguments. The Claimant has pursued conservative treatment for back pain for many years before pursuing this surgery. A stay would cause irreparable harm to the Claimant in the form of a delay of a reasonable and necessary treatment.
Finally, the Defendant argues that the public interest requires that “the judiciary heed its own rules regarding the impropriety of advisory opinions” and that employers should not be “forced to pay for surgery that, while recommended, never in fact occurs.” The order in this case only ordered the Defendant to pay for the surgery if it were performed. The ability of employers and claimants to determine the necessity and reasonableness of a particular treatment in an appropriate case is consistent with the requirement that Workers’ Compensation process and procedure be “as summary and simple as reasonably may be,” particularly where an Employer is refusing to pay for a procedure in advance of it being done. 21 V.S.A. 602. A stay of the decision in this case would not be in the public interest.
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ORDER:
(1) The Motion for Stay is DENIED.
Dated at Montpelier, Vermont this 30th day of July 2008.
____________________________
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. Sec. 670, 672.

N. C. v. Kinney Drugs (May 9, 2008)

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N. C. v. Kinney Drugs (May 9, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
N. C. Opinion No. 18-08WC
By: Phyllis Phillips, Esq.
v. Contract Hearing Officer
Kinney Drugs For: Patricia Moulton Powden
Commissioner
State File No. X-57650
OPINION AND ORDER
Hearing held in Montpelier on January 24, 2008.
APPEARANCES:
David Lynch, Esq. for Claimant
John Valente, Esq. for Defendant
ISSUE PRESENTED:
Whether Claimant’s ongoing symptoms are related to her compensable work injury, and if so, to what additional workers’ compensation benefits, if any, is she entitled.
EXHIBITS:
Joint Exhibits:
Joint Exhibit I: Medical Records
CLAIM:
Medical benefits under 21 V.S.A. §640(a)
Attorney’s fees and costs under 21 V.S.A. §678
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FINDINGS OF FACT:
1. Claimant began working for Defendant in August 2005 as assistant manager in Defendant’s retail store.
2. On January 22, 2006 Claimant was working in the stock room. After lifting a plastic bin and then turning to set it down, she straightened up and immediately experienced severe pain in her left lower back. Claimant managed to complete her work shift, but later that evening presented to the Porter Medical Center Emergency Department for treatment. She was diagnosed with an acute lumbar strain, prescribed ice, ibuprofen and pain medications and advised to follow up with her primary care provider if her symptoms did not abate.
3. Defendant accepted Claimant’s injury as compensable and began paying benefits accordingly.
4. Claimant had a prior medical history of occasional musculoskeletal complaints, primarily in her neck and shoulder but some involving her lower back as well, dating back at least to 2000. Claimant treated regularly with Dr. Palmer, a chiropractor, for these complaints. Claimant testified, and Dr. Palmer’s treatment notes confirm, that these aches and pains were not nearly as severe as the pain she experienced on January 22, 2006.
5. Claimant began treating with Dr. Palmer for her January 22, 2006 injury on January 23, 2006. Dr. Palmer initially diagnosed a lumbosacral strain/sprain and prescribed conservative treatment, including chiropractic manipulations, bed rest and limited-duty work, only 4 hours per day. X-rays taken in February 2006 revealed some minimal disc space narrowing and degenerative changes at L5-S1. A March 2006 MRI study showed a minor disc bulge at L4-5 as well, but the findings did not appear to be so significant as to account for Claimant’s ongoing pain and symptoms. By the time of the MRI these symptoms had progressed to included occasional numbness into her left leg.
6. At Dr. Palmer’s referral Claimant underwent a course of physical therapy in March and April 2006, but her symptoms did not abate. Dr. Palmer also referred Claimant for a second opinion with Dr. Binter, a neurosurgeon. Upon reviewing the March 2006 MRI, Dr. Binter concluded that Claimant was not a surgical candidate.
7. By April 2006 Dr. Palmer had determined that Claimant could not tolerate even half days working and therefore took her out of work completely.
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8. In May 2006 Dr. Palmer referred Claimant to Dr. Vargas, another neurosurgeon, for additional evaluation and possible treatment. Dr. Vargas found no evidence of disc herniation or spinal stenosis on Claimant’s x-rays or MRI, although he did note some facet arthritic changes in her lower lumbosacral spine. Dr. Vargas diagnosed L5 left radicular pain and recommended a left L5 lumbar epidural steroid injection as treatment. Claimant underwent this injection in late May 2006, but did not realize any significant pain relief from it.
9. In August 2006 Claimant presented to Fletcher Allen Health Care Emergency Department with complaints of increased low back pain radiating down to her lower calves and, significantly, an episode of urinary incontinence. She underwent a second MRI, which showed some degenerative disc disease at L4-5 and L5-S1, but again, insufficient disc space narrowing or protrusion to account for her symptoms.
10. In September 2006 Dr. Palmer referred Claimant to Dr. Ciongoli, a neurologist, for nerve conduction studies. Based on the results of this testing, which was normal bilaterally, Dr. Ciongoli diagnosed radiculitis only, not radiculopathy. Radiculitis refers to pain that is caused by nerve tissue that is inflamed or irritated. In contrast, radiculopathy refers to the pain pattern that occurs when a specific nerve root is impinged or damaged. For treatment, Dr. Ciongoli recommended possible epidural blocks and, given Claimant’s intractable pain perhaps a surgical consult as well. As for Claimant’s work status, Dr. Ciongoli opined that because Claimant had failed at a trial of half days, there was “no way” she could return to work currently.
11. In October 2006 Dr. Palmer referred Claimant to the Vermont Center for Occupational Rehabilitation (VCOR), a multi-disciplinary rehabilitation program headed by Dr. Johansson, an osteopath. Dr. Johansson diagnosed Claimant with mechanical low back pain, causally related to the January 22, 2006 work injury, as well as degenerative disc disease. As treatment, he recommended that Claimant undergo an intensive rehabilitation program, to include behavioral therapy, pool therapy, personal training, massage, patient education and osteopathic treatment.
12. Claimant began the VCOR program in mid-December 2006 and completed it on March 5, 2007. By all accounts, including her own testimony as well as Dr. Johansson’s and Dr. Palmer’s treatment notes, she found the program to be very beneficial while she was participating in it. Although her symptoms did not completely resolve, she made gains in both flexibility and core strength, and was able to walk and move about with less pain and effort.
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13. At Defendant’s request, Claimant underwent an independent medical evaluation with Dr. Gennaro, an osteopath, in December 2006. In Dr. Gennaro’s opinion, Claimant had a moderate degree of pre-existing degenerative disc disease in her lumbar spine that was exacerbated by the January 22, 2006 work injury. Dr. Gennaro diagnosed Claimant with a lumbar strain and emerging chronic pain disorder, and concluded that her current symptoms were all causally related to the work injury. As for treatment, Dr. Gennaro agreed that Claimant’s condition was not surgical and approved of Dr. Johansson’s multi-disciplinary rehabilitation approach instead. Significantly, Dr. Gennaro noted that Claimant exhibited pain behaviors and believed herself to be considerably disabled. In his opinion, Claimant’s prognosis for recovery was guarded.
14. Upon her completion of the VCOR program Dr. Johansson determined Claimant to be at end medical result and rated her with a 5% whole person permanent impairment. Dr. Johansson noted that Claimant had clearly demonstrated a work capacity within the light range during her time at VCOR, and thus he released her to return to work light duty for up to 8 hours daily.
15. Claimant testified, and the VCOR treatment notes reflect, that she was anxious to return to work as soon as possible. In early March 2007, shortly after completing the VCOR program, Claimant began working 3 hours per day, 3 days per week at a local deli. This return to work proved unsuccessful however, as the prolonged standing and walking necessitated by the job caused Claimant’s pain to increase back up to a level she found unmanageable. In mid-March 2007, after only two weeks on the job, Claimant reported her increased symptoms to Dr. Palmer, who determined that she was not capable of working. Claimant has not worked since. As of the date of the formal hearing, Dr. Palmer believes that she has no work capacity and is still temporarily totally disabled.
16. Claimant testified that when she told Dr. Johansson that she could not tolerate the new job, he advised her to “just suck it up,” as there was nothing more he could do for her. Dr. Johansson’s recollection of this conversation is somewhat different. He acknowledged that he stood by his 8-hour-per-day work release notwithstanding Claimant’s belief that this was too much for her, and recommended that Claimant continue with her home exercise program as the best treatment for her chronic pain. He also prescribed anti-inflammatories and pain medications. Claimant testified that on the advice of her pharmacist she decided not to take the medications Dr. Johansson prescribed, fearing side effects and/or addiction with prolonged use.
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17. In Dr. Palmer’s opinion the combination of Claimant’s discontinuing the VCOR program and returning to work caused her condition to deteriorate. Dr. Palmer suspected that Claimant was suffering from a significant disc lesion that had not shown up on the prior MRI studies. Because Claimant’s symptoms tended to worsen with prolonged weight-bearing activities such as standing or walking, Dr. Palmer recommended that Claimant undergo a standing MRI to replicate those conditions and possibly visualize further disc damage.
18. A standing, or weight-bearing, MRI is a relatively new technique for conducting lumbar spine imaging studies. The standard protocol is for lumbar spine MRI scans to be conducted with the patient lying down. A standing MRI requires special equipment that is available in Albany, New York but not in Vermont.
19. Dr. Johansson testified that he has never ordered a standing MRI and is unaware of any orthopedic surgeon or spine specialist who has. In his opinion such a test is not medically necessary in Claimant’s case. Noting that Claimant had clearly demonstrated a light work capacity at the conclusion of the VCOR program, Dr. Johansson believes that Claimant’s unsuccessful return to work thereafter was due to behavioral and/or psychological issues, not to any as-yet unvisualized disc lesion.
20. Both Claimant and Dr. Palmer testified that Claimant’s pain continued to worsen after her failed return to work in March 2007. In April 2007 Dr. Palmer reported that Claimant’s symptoms flared with any increase in physical activity. By September 2007 he reported that Claimant’s left leg numbness had worsened.
21. In October 2007 Dr. Palmer referred Claimant to the Spine Institute of New England. Initially Claimant underwent an evaluation with Robert Hemond, a physician’s assistant. Mr. Hemond posited that Claimant was suffering from an L5 radiculopathy. He reported that Claimant was not interested in pursuing his suggestion that she consider another lumbar epidural steroid injection, and instead expressed her desire to speak with a surgeon about possible surgical interventions. To that end, Claimant met with Dr. Ames, a Spine Institute surgeon, on October 19, 2007.
22. Dr. Ames found no evidence of disc herniation and did not believe that Claimant would benefit from disc surgery. She diagnosed Claimant with a pain pattern consistent with degenerative changes in her spine. Dr. Ames noted that Claimant has a prior history of psoriasis, and suggested that there might be some relationship between this condition and the “aggressive form” of degenerative disc disease from which Claimant was suffering. Notably, Dr. Ames did not comment at all on Claimant’s January 2006 work injury and what role, if any, it played in either causing or aggravating her current symptoms.
23. As for treatment, Dr. Ames recommended a trial of medial branch blocks and if those proved successful, radiofrequency ablation to follow. Radiofrequency ablation is a process by which nerve pain is deadened, hopefully providing sufficient pain relief to allow a patient to rehabilitate a weakened condition.
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24. Dr. Ames also suggested a generalized exercise program emphasizing an arthritis-based medication regimen and encouraged Claimant to continue her chiropractic care. Last, she noted that “we also would certainly be glad to have [Claimant] participate in the Level 4 rehabilitation program here at SPINE if she wishes to do so.” The Level 4 rehabilitation program is a multi-disciplinary program similar to VCOR, though with some different treatment aspects.
25. In his testimony Dr. Johansson disputed the reasonable necessity of Dr. Ames’ treatment suggestions. Particularly with respect to the Level 4 rehabilitation program, Dr. Johansson testified that it would be duplicative for Claimant to undergo another multi-disciplinary rehabilitation program in its entirety after already having completed the VCOR program. Dr. Johansson did acknowledge that he has had patients who underwent the entire VCOR program and then returned for additional treatments in specific areas, for example osteopathic manipulation or massage.
26. Dr. Johansson maintains that although Claimant’s symptoms may have worsened since completing the VCOR program, her underlying condition has not changed. In his opinion, Dr. Ames’ treatment recommendations all are aimed at managing Claimant’s pain, not improving her condition. For that reason, Dr. Johansson stands by his February 22, 2007 end medical result determination.
27. Dr. Johansson believes that while the January 2006 work injury caused or aggravated some of Claimant’s low back symptoms, she now has returned to her pre-injury baseline, and her condition is consistent with that of a person of her age and with her degree of pre-existing degenerative disc disease.
28. With the exception of the time during which she was undergoing the VCOR program, Claimant has treated frequently with Dr. Palmer, sometimes as much as 2 or 3 times per week. Dr. Palmer testified that at this point his treatment is supportive only, not corrective. Its purpose is not to “fix” or improve Claimant’s condition, but rather to alleviate her pain and allow her to maintain some level of function. Unfortunately, that level of function remains decidedly low. Claimant testified that she cannot tolerate prolonged standing, walking or sitting, that it takes her all day to complete household chores such as vacuuming, and that she sleeps in a recliner because she cannot tolerate lying down in bed.
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CONCLUSIONS OF LAW:
1. In this claim Claimant seeks workers’ compensation coverage for various medical treatments, including a weight-bearing MRI, radiofrequency ablation, a multi-disciplinary intensive rehabilitation program and ongoing chiropractic modalities. Defendant contends that the proposed treatments do not constitute reasonably necessary treatment for her January 22, 2006 work injury.
2. The claimant in a workers’ compensation claim has the burden of establishing all of the facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963). Once the claim is accepted and benefits are paid, however, the burden shifts to the defendant to establish a sufficient basis for terminating compensation. Merrill v. University of Vermont, 133 Vt. 101 (1974).
3. When an employer seeks to terminate coverage for medical benefits, it has the burden of proving that the treatment at issue is not reasonable. K.R. v. Mack Molding, Opinion No. 34-07WC (December 11, 2007). A treatment may be unreasonable either because it is not medically necessary or because it is not related to the compensable condition or injury. Id.
4. Claimant presented expert medical testimony from Dr. Palmer to the effect that all of the treatments at issue here are both reasonably necessary and causally related to the January 2006 work injury. Defendant countered with expert testimony from Dr. Johansson, who testified that the proposed treatments either were not medically necessary or were not causally related to the work injury.
5. 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). With these factors in mind, the key question is which expert medical opinion is the most credible? M.B. v. Price Chopper, Opinion No. 13-07WC (May 8, 2007).
Weight-bearing MRI
6. I find that Defendant has sustained its burden of proving that a weight-bearing MRI is not reasonably necessary treatment. I am persuaded not only by Dr. Johansson’s testimony that such an imaging study is not the standard protocol but also by the fact that none of the orthopedic surgeons or spine specialists who examined Claimant recommended such a scan.
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Radiofrequency Ablation
7. I find that Dr. Ames’ suggestion that Claimant would be an “excellent candidate” for medial branch blocks followed by radiofrequency ablation amounts to a credible treatment recommendation for Claimant’s current pain, and in that sense it is reasonably necessary. Determining whether this treatment is causally related to the January 2006 work injury is complicated by Dr. Ames’ silence on the issue. The burden of proof is on Defendant, and consequently Dr. Ames’ silence is not dispositive. I am not convinced by Dr. Johansson’s testimony that such treatments, if necessary at all, relate solely to Claimant’s degenerative disc disease and not at all to the January 2006 work injury. I conclude, therefore, that Claimant is entitled to undergo this treatment.
8. Claimant’s entitlement to this treatment does not negate the previous finding of end medical result, however. Both Dr. Palmer and Dr. Johansson agreed that the purpose of this treatment is to control Claimant’s pain, not to improve her underlying condition. Ongoing treatment of this sort does not preclude an end medical result. Coburn v. Frank Dodge & Sons, 165 Vt. 529 (1996).
Level 4 SPINE Program
9. I find that Defendant has sustained its burden of proving that the Level 4 SPINE program is not reasonably necessary treatment at this time. Dr. Johansson’s testimony was credible as to the relative similarity of the SPINE program to the VCOR program Claimant already completed. For Claimant to undergo another full rehabilitation program would be duplicative. As Dr. Johansson has recommended for other patients, however, it is possible that Claimant might benefit from a refresher course focused on specific treatment modalities, particularly those that might maximize the chances of her successfully returning to work after what has evolved into an extended period of disability. Defendant is well advised to consider this possibility.
Ongoing Chiropractic Treatment
10. Dr. Palmer admitted that the chiropractic treatment he is providing Claimant is supportive only, not corrective. Unfortunately, the treatment appears to afford only scant and temporary relief of Claimant’s symptoms and in that sense it is ineffective. Although I am mindful that Claimant has come to rely heavily on it, this is not the decisive factor in determining whether the treatment is reasonably necessary. J.C. v. Eveready Battery, Opinion No. 12-07 (April 3, 2007). I conclude that it is not.
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11. It is possible, however, that some limited amount of supportive chiropractic care still might prove reasonably necessary in the context of Claimant’s transition, hopefully, from total disability back to suitable work. There is insufficient evidence from which to conclude at this point that Claimant will be entitled to ongoing chiropractic care during this period, but Defendant might well consider offering it nonetheless. Should it decide to do so, the previous end medical result determination will not be negated, as the chiropractic care to be provided is palliative only. Coburn, supra.
Work Capacity
12. I find that the more credible evidence establishes that Claimant had a light duty work capacity as of her completion of the VCOR program. Dr. Palmer’s conclusion to the contrary is based solely on Claimant’s belief that she cannot work and not on any objective testing of her functional capacities.
13. More than a year has passed since Claimant’s functional abilities were tested formally, however, and her pain level has increased significantly in the interim. There is insufficient evidence from which to determine what Claimant’s current functional capacities are, therefore. To the extent that Defendant might be obligated to provide vocational rehabilitation services to Claimant, its first step must be to determine objectively the extent of her current functional abilities so that an appropriate return to work plan can be developed. Having said that, it may be appropriate for Defendant to wait to do so until Claimant has completed the treatments alluded to above.
Attorney’s Fees and Costs
14. Claimant has requested an award of attorney’s fees and costs pursuant to 21 V.S.A. §678. An award of costs to a prevailing claimant is mandatory under the statute; an award of attorney’s fees lies within the Commissioner’s discretion. Here, Claimant has only partially prevailed. I find it appropriate to award 50% of her allowable costs and attorney’s fees. Claimant shall have thirty days from the date of this opinion to submit evidence of these in accordance with Workers’ Compensation Rule 10.4000.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is ORDERED to pay:
1. Medical benefits in accordance with Conclusion of Law #7 above;
2. All medical expenses associated with functional capacities testing to determine Claimant’s current work capacity and possible entitlement to vocational rehabilitation services;
3. Fifty percent of Claimant’s allowable litigation costs and attorney’s fees.
DATED at Montpelier, Vermont this 9th day of May 2008.
______________________________
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.

V. O. v. Windsor Hospital (September 9, 2009)

Categories: Workers' Compensation Hearing DecisionTags: , , , Author:

V. O. v. Windsor Hospital (September 9, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
V. O. Opinion No. 12A-08WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Windsor Hospital
For: Patricia Moulton Powden
Commissioner
State File No. T-00023
RULING ON CLAIMANT’S MOTION FOR AWARD OF ATTORNEY FEES AND COSTS AND ON DEFENDANT’S MOTION TO DISMISS OR STAY
The Commissioner previously decided this claim on March 27, 2008. Three issues had been presented: first, whether Claimant had reached an end medical result; second, whether her low back condition was causally related to her 2002 work injury; and third, whether massage therapy was a reasonable treatment for the 2002 injury.
The Commissioner ruled in Claimant’s favor on the first issue, but denied her claim for benefits related to the second and third issues. Claimant having only partially prevailed, therefore, the Commissioner exercised the discretion granted by 21 V.S.A. §678(a) to award her only one-half of the attorney fees she had sought. In awarding fees in that amount, the Commissioner noted that Claimant had presented essentially the same body of evidence as to all three of the issues she had pursued. Therefore, the Commissioner reasoned, it was appropriate to award fees “based upon the efforts of counsel to the extent that those efforts may be allocated among the issues.”
Claimant appealed the Commissioner’s decision to the Windsor Superior Court for jury trial. Once again, she was able to garner only a partial victory. As the Commissioner had concluded, the jury found that Claimant’s low back condition was not causally related to her 2002 work injury. Contrary to the Commissioner’s decision, however, the jury concluded that massage therapy was a reasonable treatment.
In all, therefore, between the formal hearing before the Commissioner and the Windsor Superior Court jury trial, Claimant prevailed on only two of the three issues she had pursued. Nevertheless, she now seeks an award of the remaining one-half of the attorney fees she originally sought.
Claimant cites to Electric Man v. Charos, 179 Vt. 351 (2006), for the proposition that an award of attorney fees should not be apportioned when all of the issues litigated involve the same core of primary facts. Claimant also cites to Sargent v. Town of Randolph, 2007 VT 56, for the proposition that when a workers’ compensation claimant does not prevail in proceedings before the Commissioner (and therefore does not merit an award of attorney fees), but later is victorious on appeal, he or she ought to be awarded all of the fees that previously were denied.
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I do not read the cases Claimant cites so expansively. In Electric Man the Supreme Court admonished the trial court against viewing a lawsuit between a contractor and a homeowner as “a series of discrete claims,” but most workers’ compensation actions involve exactly that – a series of separate and distinct claims for separate and distinct statutory benefits. When the same core facts give rise to clearly distinguishable benefit entitlements, as happened here, it is within the discretion granted by §678(a) to fashion an attorney fee award with those results in mind.
Nor does the Supreme Court’s holding in Sargent preclude such a result. Sargent stands only for the proposition that the Commissioner is obligated to exercise the discretion granted by §678(a) in ruling on a request for attorney fees following a successful trial or appeal of a claim that initially had been denied at the formal hearing level. Sargent, 2007 VT 56 at ¶15. By no means does it mandate that that discretion no longer exists.
In exercising that discretion, I cannot ignore the fact that even after her appeal, Claimant still was not successful on all of her claims. I conclude that the fees already awarded remain appropriate.
Having determined that Claimant is not entitled to an additional award of attorney fees, there is no need to reach the issues raised by Defendant’s Motion to Dismiss or Stay.
Claimant’s Motion for Award of Attorney Fees is DENIED.
DATED at Montpelier, Vermont this 9th day of September 2009.
______________________
Patricia Moulton Powden
Commissioner

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