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Karen Hathaway v. C & S Wholesale Grocers Inc (March 13, 2012)

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Karen Hathaway v. C & S Wholesale Grocers Inc (March 13, 2012)
Karen Hathaway Opinion No. 39A-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
C & S Wholesale Grocers, Inc.
For: Anne M. Noonan
State File No. Z-58166
The Commissioner previously decided this claim in Claimant’s favor on November 17, 2011. As Claimant had prevailed, the Order included an award of attorney fees. Claimant had requested $13,168.00; from this amount the Commissioner deducted $500.00. Defendant was granted two weeks within which to decide whether to challenge the reasonableness of the remaining fees, totaling $12,668.00.
Defendant did not move to challenge the remaining fees within the two-week period. Therefore, I consider the award of $12,668.00 in attorney fees to have become final on December 1, 2011. To date, Defendant has failed to remit payment of that amount to Claimant.
Claimant now seeks an award of interest, penalties and attorney fees as a consequence of Defendant’s failure to pay.
Citing to 21 V.S.A. §650(e), Claimant requests that Defendant be assessed a ten percent penalty for failing to pay attorney fees as ordered. By its plain language, that section applies only to “weekly compensation benefits or weekly accrued benefits” that are not paid in a timely manner. It does not apply to unpaid attorney fees. There is no basis in the statute, therefore, for the penalty Claimant seeks.
As for Claimant’s claim for interest and for the attorney fees incurred in pursuing the current motion, the Commissioner lacks jurisdiction to make such an award given the circumstances presented here. Rather, under 21 V.S.A. §675(a) Claimant’s remedy lies “in any court of law having jurisdiction of the amount involved.”
For the foregoing reasons, Claimant’s Motion for award of interest, penalties and attorney fees is hereby DENIED.
DATED at Montpelier, Vermont this 13th day of March, 2012.
Anne M. Noonan

P. P. v. State of Vermont, Office of the Attorney General (February 1, 2008)

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P. P. v. State of Vermont, Office of the Attorney General (February 1, 2008)
P. P. Opinion No. 01-08WC
By: David J. Blythe, Esq.
v. Contract Hearing Officer
State of Vermont, For: Patricia Moulton Powden
Office of the Attorney General Commissioner
State File No. J-22042
Claimant’s case effectively consists of determining which medications Claimant has been prescribed or is currently being prescribed in connection with her work-related injury are compensable. Claimant also seeks an award of attorney’s fees and costs associated with this aspect of her claim.
This matter came on for final evidentiary hearing on May 10, 2007 before David J. Blythe, Hearing Officer and designee of the Commissioner of Labor for this case. Claimant was present and was represented by Attorney Heidi Groff. Defendant State of Vermont was represented by Attorney Keith J. Kasper. At the hearing, Claimant presented her testimony and Defendant presented witness testimony from William Boucher, MD and Coleman Levin, MD (both by telephone).
III. FINDINGS OF FACTStipulated Facts and Judicial Notice
The parties stipulated to the following facts, which are here FOUND and which are here incorporated essentially as presented as paragraphs 1 through 8 in a written Stipulation dated May 10, 2007 (“Stipulation”) by the parties:
1. Claimant suffered a compensable work-related injury on May 1, 1996.
2. On January 18, 2000, the parties came to a Form 14 Settlement Agreement leaving open medical benefits, including prescriptions, causally related to her work-related injuries.
3. On April 31[sic], 2003, Defendant filed a Form 27 discontinuing payment of medical benefits for all of Claimant’s treatments except for pool therapy and Oxycontin.
4. On February 7, 2005, The Department [of Labor] issued an interim order requiring retroactive payment of the following medications: Morphine Sulfate, Effexor, Methylin Omeprazole and Aspirin.
5. Subsequently Defendant voluntarily agreed to pay for additional medications based upon the expert opinions it had received in this matter.
6. Remaining at issue in this case is Claimant’s request for payment for the following medications: Amantadine, Trileptal, Kepra, Methylphenidate (Ritalin), Clonazepam, Lorazepam, Hydroxycholoquine (Plaquenil), Omeprazole (Prilosec), Lasix and Klor-con.
7. Claimant seeks payment for these outstanding contested medications (repayment to Claimant for the retail cost and she will reimburse her primary health insurer, Cigna directly), and, if successful, an award of attorney’s fees and costs.
8. The parties agree to the submission of the following exhibits:
Joint Exhibit No. 1 Relevant medical records
Joint Exhibit No. 2 Preservation testimony of Dr. John Matthew, MD
9. At the hearing, Defendant conceded the compensability of the following medications: Topomax, Pregabalin (a.k.a Lyrica), Tegretal, Flouxetine (a.k.a Prozac) and Miralax/Glycolax.
10. The Commissioner takes judicial notice of the fact and content of all forms filed by either party with the Department prior to the time and date of the hearing.
Additional Findings of Fact
11. On May 1, 1996, Claimant injured her back while in the employ of the Defendant and in connection with her employment-related activities (the workplace injury). There is no dispute as to whether this is a compensable injury. In addition to her back injury, Claimant suffers from depression related to her workplace injury. Stipulation.
12. Claimant worked for Defendant for approximately ten years between 1990 and 2000 as an administrative assistant. She left Defendant’s employ in 2000 due to pain from her workplace injury. Claimant’s testimony.
13. At the time of the workplace injury, Claimant had several pre-existing medical conditions, including obesity, hypertension, diabetes mellitus, urinary urge and stress incontinence, gastrointestinal distress, hypothyroidism and edema. Exhibit 1, Dr. Levin’s report dated May 10, 2006.
14. John Matthew, MD has been Claimant’s primary treating physician for more than one year. He is board-certified in internal medicine and has been treating patients for over thirty four years. He frequently treats patients for chronic pain. Dr. Matthew has reviewed Claimant’s medical records, including records provided to him by other medical providers, in connection with his treatment of Claimant and with his testimony. Exhibit 2 at 3-6.
15. Dr. Matthew and Dr. Levin both testified that prescribing medications to treat chronic pain and its related conditions frequently involves a trial-and-error process in order to determine which medications, or combinations of medications, will offer a patient (including patients such as Claimant) the best treatment. Id. at 16-17; Dr. Levin’s testimony.
16. Claimant has undergone two invasive surgical procedures and continues to receive epidural blocks at three to four month intervals. Prior to the date of the hearing, the last epidural block was received in February 2007. Claimant’s testimony.
17. Claimant’s current (as of the date of the hearing) medical problems/conditions are
(a) back pain;
(b) radicular pain in her legs;
(c) depression and sleep problems;
(d) gastroesophageal reflux disease (“GERD”);
(e) constipation;
(f) edema (swelling in her ankles); and
(g) conditions which are side-effects of the medications prescribed.
Id.; Exhibit 1 generally.
18. Claimant testified credibly that since she left her employment with Defendant she has been unable to work due to pain and the medical problems related to the workplace injury. She is currently unable to drive an automobile. Id.
19. Currently, the only narcotic medication Claimant takes (for her chronic pain) is Oxycodone, the compensability of which is not at issue. Exhibit 2 at 11.
20. Dr. Matthew and Dr. Boucher both testified that physicians commonly prescribe medications for purposes other than those officially recognized by the United States Food and Drug Administration (“FDA”). Exhibit 2 at 37-38; Dr. Boucher’s testimony.
21. Drs. Levin and Boucher both examined medical records in connection with their testimony. Dr. Boucher conducted an independent medical examination of Claimant on April 20, 2005. Dr. Levin neither personally examined nor treated Claimant. Dr. Levin’s testimony; Dr. Boucher’s testimony.
22. Dr. Matthew previously had prescribed Amantadine for Claimant’s chronic pain. She is not now taking Amantadine. Exhibit 2 at 17-18.
23. Amantadine is approved by FDA as an antiviral medicine for influenza and for Parkinson’s disease. Id. at 18; Dr. Boucher’s testimony; Dr. Levin’s testimony.
24. Dr. Matthew testified he prescribed Amantadine for Claimant’s chronic pain in part because of his own experience in prescribing it and, in part, based upon advice he received from another physician (a psychiatrist) that Amantadine is helpful in treating chronic pain. Exhibit 2 at 17-19.
25. Brian A. Erickson, MD, examined Claimant on behalf of Defendant in November 2005. Dr. Erickson testified that prescribing Amantadine to augment Oxycontin (which Claimant was taking at that time) was reasonable. Exhibit 1 at 365-366.
26. Dr. Levin testified that Amantadine has no efficacy for back pain and is not medically indicated for Claimant’s condition. Dr. Levin’s testimony.
Trileptal and Kepra
27. Trileptal and Kepra are both anti-epileptic (Dr. Matthew’s characterization) or anti-convulsant (Dr. Boucher’s characterization) medications. Exhibit 2 at 12; Dr. Boucher’s testimony. Dr. Matthew also referred to them as “seizure” medications. Exhibit 2 at 12.
28. Claimant had previously been prescribed and had taken a number of anti-seizure medications, including Clonazepam, Tegretol, Topomax and Neurontin. Id.
29. Dr. Matthew prescribed Trileptal and Kepra to treat Claimant’s neuropathic pain, which he described as being pain which results when “something mechanically or chemically is bothering [a patient’s] nerves.” Id. at 4, 13.
30. Dr. Matthew also testified that he prescribed the Trileptal and Kepra to accompany the narcotic pain medication (presently Oxycodone). Id. at 13-14.
31. Dr. Boucher testified that Trileptal and Kepra are normally prescribed to treat seizures in adults, and that he had never seen them used to treat pain. Dr. Boucher’s testimony.
32. Dr. Levin testified that he was aware that Kepra was used in chronic pain clinics as an adjunct to other medications, but that he did not believe that anti-convulsants such as Trileptal and Kepra were necessary for the treatment of chronic pain or depression for Claimant in particular. Dr. Levin’s testimony.
33. Dr. Matthew acknowledged that Trileptal and Kepra are not approved by FDA for treatment of chronic pain, and that his prescribing them for Claimant is another “off-label” use. Exhibit 2 at 15; see Finding No. 20 above.
34. Dr. Matthew further testified that he had observed that Trileptal and Kepra have helped reduce Claimant’s pain. He also testified that there is no doubt in his judgment that anti-convulsants such as Trileptal and Kepra are effective in treating chronic pain when used as adjuncts to narcotic medications. Exhibit 2 at 16-17 and 26.
35. Dr. Matthew strongly disagreed with Dr. Boucher’s opinion (related to Dr. Matthew by counsel for Defendant during the deposition) that use of anti-seizure medications were not reasonable and necessary for Claimant’s treatment. Exhibit 2 at 15.
36. Methylphenidate/Ritalin is a stimulant. Dr. Matthew prescribed Methylphenidate/Ritalin as an adjunct medication to treat Claimant’s depression. Id. at 19.
37. Dr. Matthew testified that some patients being treated for depression don’t respond to other medications until a stimulant is added to the treatment regimen. Id. 19-21.
38. Dr. Boucher testified that Methylphenidate/Ritalin is a common medication for treating major depression, ADHD and narcolepsy, but is not indicated for simple depression such as experienced by Claimant. He stated that it can cause sleep
deprivation, has the potential for addiction, and generally should only be prescribed by a psychiatrist. Dr. Boucher’s testimony.
39. Dr. Levin described Methylphenidate/Ritalin as a central nervous system stimulant which can be used in treating clinical depression, but is not indicated for chronic pain and simple depression such as experienced by Claimant. Dr. Levin’s testimony.
40. Dr. Matthew specifically testified that the addition of Methylphenidate/Ritalin to Claimant’s medication regimen helped her functional status. Exhibit 2 at 19.
Clonazepam and Lorazepam
41. Clonazepam and Lorazepam are sedatives which are prescribed to help patients sleep. Id. at 20.
42. Dr. Matthew prescribed Clonazepam and Lorazepam for Claimant because her pain keeps her from sleeping. Id. at 21-22.
43. Dr. Matthew also noted that Clonazepam has some antidepressant effect. Id.
44. Dr. Boucher testified that Clonazepam and Lorazepam are not normally used to treat depression. Dr. Boucher’s testimony.
45. Dr. Levin testified that Clonazepam and Lorazepam are normally prescribed to treat “true insomnia” but not for back pain. However, he also acknowledged that both are occasionally used as adjunctive medications in treating chronic pain. Dr. Levin’s testimony.
Hydroxychloroquine (Plaquenil)
46. Hydroxychloroquine (Plaquenil) is an anti-malarial medication which is sometimes used to treat inflammatory arthritis. Exhibit 2 at 23.
47. Dr. Matthew could not connect the use of Hydroxychloroquine (Plaquenil) to the treatment of Claimant’s conditions. Id.
48. Dr. Boucher testified that he could not see any reason to prescribe Hydroxychloroquine (Plaquenil) for Claimant’s conditions. Dr. Boucher’s testimony.
Omeprazole (Prilosec)
49. Omeprazole (Prilosec)is a medication which treats gastroesophageal reflux disease (GERD) and reflux esophagitis. Exhibit 2 at 9.
50. Dr. Matthew has diagnosed Claimant as suffering from reflux esophagitis, but could not specifically relate that condition to her workplace injury or to the medications currently being prescribed for her compensable injuries. Id.
51. Dr. Levin testified that based upon his review of Claimant’s medical history, including records relating to her medical condition prior to the date of injury, he concluded that the reflux esophagitis is not causally related to the workplace injuries. Dr. Levin’s testimony.
Lasix and Klor-Con
52. Lasix is a diuretic which is prescribed to reduce edema (fluid build-up). Dr. Boucher’s testimony.
53. Dr. Matthew prescribed Lasix to treat Claimant’s edema in her ankles. He testified that the swelling in Claimant’s ankles was aggravated by her weight gain due to inactivity following the workplace injury. Exhibit 2 at 26-27 and 31-32.
54. Although she was obese prior to May 1996, Claimant did not take diuretics prior to her workplace injury. Id. at 32.
55. Klor-Con is a potassium supplement. Id. at 25; Dr. Levin’s testimony.
56. Dr. Matthew prescribed Klor-Con in connection with Lasix because diuretics such as Lasix cause the kidneys to “waste” potassium. Id.
57. Drs. Boucher and Levin agreed with Dr. Matthew’s description of Klor-Con and its use in connection with diuretic medications. Dr. Boucher’s testimony; Dr. Levin’s testimony.
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984); Goodwin v. Fairbanks, Morse & Co., 123 Vt. 161, 166 (1962); Nutbrown v. Roadway Express, Opinion No. 2-93, at 4 (June 7, 1993).
2. In this case, Claimant has the burden of establishing that the proposed treatment is both causally related to the May 1, 1996 workplace injury and that the treatment is necessary and reasonable. Stevens v. Burlington Rent-All, Inc., Opinion No. 66-96 (November 20, 1996).
3. In cases where the Commissioner must choose among conflicting medical opinions with regard to Claimant’s condition, the following factors are considered: 1) the nature of treatment and 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. See Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
4. As Claimant’s treating physician, Dr. Matthew is in the best position to assess the efficacy of medications prescribed for the conditions for which he is treating Claimant. For those conditions causally related to the workplace injury, Dr. Matthew’s professional opinions are given considerable weight.
5. It is not unreasonable for a treating physician to try a variety of medications, and to do so in different combinations, in order to determine the best treatment of a particular compensable condition. See Finding of Fact No. 15, supra. So long as the medication bears a reasonable relationship to the condition, the cost of that medication is compensable.
6. Whether or not a particular medication is listed by FDA for the treatment of a specific medical condition, or is listed as such in any particular medical text or reference manual, is not dispositive of whether or not the cost that medication is compensable in connection with the treatment of a particular medical condition. Such listings may have evidentiary value, and if so are to be given appropriate weight by the finder of fact in determining the compensability of the cost of such medications.
7. The test of whether the cost of a particular medication is compensable is not a post-facto assessment of whether or not it actually achieved the purpose for which it was prescribed. To so require would place an unreasonable burden on a claimant or a physician, and could have the effect of discouraging a physician from trying different, but otherwise reasonable, treatment regimes in treating a compensable condition. Rather, the appropriate means of determining whether or not the cost of a particular medication is compensable is a determination of whether the prescription and use of that medication is reasonable and necessary under the circumstances of the condition and its treatment. In making that determination, the Commissioner may consider, inter alia, the evidence offered by the prescribing provider for the basis of the decision to prescribe a particular medication, the prescribing provider’s prior experience with the medication, the listed uses of the medication, any professional literature or studies relating to the medication, materials from the manufacturer or supplier of the medication, testimony from other qualified witnesses, the actual effect of the medication in a particular claimant’s case, and other evidence which the Commissioner finds relevant.
8. Based upon the foregoing, Claimant has met her burden of establishing that the prescription and use of Amantadine is reasonable and necessary, and therefore the expense of Amantadine for the treatment of the workplace injury is compensable.
Trileptal and Kepra
9. Based upon the foregoing, Claimant has met her burden of establishing that the prescription and use of Trilepta and Kepra is reasonable and necessary, and therefore the expense of Trileptal and Kepra for the treatment of the workplace injury is compensable.
10. Based upon the foregoing, Claimant has met her burden of establishing that the prescription and use of Methylphenidate/Ritalin is reasonable and necessary, and therefore the expense of Methylphenidate/Ritalin for the treatment of the workplace injury is compensable.
Clonazepam and Lorazepam
11. Based upon the foregoing, Claimant has met her burden of establishing that the prescription and use of Clonazepam and Lorazepam is reasonable and necessary, and therefore the expense of Clonazepam and Lorazepam for the treatment of the workplace injury is compensable.
Hydroxychloroquine (Plaquenil)
12. Based upon the foregoing, Claimant has not met her burden of establishing that the prescription and use of Hydroxycloroquine (Plaquenil) is reasonable and necessary, and therefore the expense of Hydroxycloroquine (Plaquenil) for the treatment of the workplace injury is not compensable.
Omeprazole (Prilosec)
13. Based upon the foregoing, Claimant has not met her burden of establishing that the prescription and use of Omeprazole (Prilosec) is reasonable and necessary, and therefore the expense of Omeprazole (Prilosec) for the treatment of the workplace injury is not compensable.
Lasix and Klor-Con
14. Based upon the foregoing, Claimant has met her burden of establishing that the prescription and use of Lasix and Klor-Con is reasonable and necessary, and therefore the expense of Lasix and Klor-Con for the treatment of the workplace injury is compensable.
Attorney’s Fees and Costs
15. Under WC Rule 10 and 21 VSA §678(a), the Commissioner, in her discretion, may award reasonable attorney’s fees to the prevailing party. Claimant’s attorney has submitted an itemized statement of services rendered showing 47.9 hours of professional services and costs of $778.27. This amount includes the fee paid to Dr. Matthew for his deposition. Dr. Matthew billed one and one-half hours of his time at the rate of $500.00 per hour. However, Rule 40 limits the awardable cost of expert witness deposition testimony to $300.00 per hour. Therefore, costs of Dr. Matthew’s deposition in the amount of $450.00 are recoverable if awarded. Under Rule 10.1210, the award for legal services rendered on an hourly basis is limited to $90.00 per hour. At the allowed rate, the fees for professional services in this case (if fully compensable) would be $4,311.00. Claimant’s total request for attorney’s fees and costs is therefore $5,089.27.
16. However, Claimant has not prevailed on all of her claims. Because the body of medical and other evidence is, in large part, common to all issues, it is reasonable and within the Commissioner’s discretion to conclude that Claimant is entitled to recover attorney’s fees in relative proportion to those claims upon which Claimant has prevailed.
17. Claimant sought a determination that the medications prescribed and used to treat a total of seven medical conditions (some involving two medications) were compensable. Those conditions, and the respective medications, are:
Chronic pain…………………………………………………………………………..Amantadine
Neuropathic pain…………………………………………………………..Trilepta and Kepra
Sleep problems………………………………………………..Clonazepam and Lorazepam
General pain………………………………………………Hydroxychloroquine (Plaquenil)
Gastroesophageal reflux disease………………………………..Omeprazole (Prilosec)
Edema (ankle swelling)………………………………………………..Lasix and Klor-Con
Of these seven conditions, Claimant has established the compensability of the medications prescribed and used to treat five. Therefore, Claimant is awarded five-sevenths of the requested attorney’s fees, in the amount of $3,079.29. Claimant’s request for costs in the amount of $778.27 (as calculated by Conclusion of Law No. 15 above), is granted in full.
18. On April 22, 2007, the Commissioner approved an attorney’s lien pursuant to Rule 10(2)(B) in favor of Claimant’s counsel. Pursuant to the Agreement between Claimant and Claimant’s counsel (“Agreement”), which Agreement was approved by the Commissioner when granting the lien, Claimant’s counsel may choose between the attorney’s fees awarded or 25% of the amounts awarded. Because this Order does not include calculation of the amounts actually awarded, no specific order is made as to which option under the Agreement Claimant’s counsel may exercise.
Based upon the foregoing, it is hereby ORDERED as follows:
1. Defendant is responsible for the payment of those medications the prescription and use of which have been found to be compensable. Those medications are: Amantadine, Trileptal, Kepra, Methylphenidate (Ritalin), Clonazepam, Lorazepam, Lasix and Klor-con. Defendant shall pay to Claimant those amounts which Claimant documents for the costs of those medications.
2. Claimant, having substantially prevailed on five of her seven claims (as determined by the Commissioner in her discretion), is entitled to an award of attorney’s fees in the amount of $3,079.29 and of costs in the amount of $778.27, both of which are reasonable.
3. Claimant is also entitled to statutory interest at the rate of 12% per annum on the amounts invoiced for those medications which are compensable, interest to accrue from the date each such invoice was payable or, in the instance in which Claimant actually paid for such medications and is seeking reimbursement, from the date upon which Claimant made such payment.
Dated at Montpelier, Vermont this 1st day of February 2008.
Patricia Moulton Powden
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.

J. B. v. Steven Betit (August 7, 2008)

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J. B. v. Steven Betit (August 7, 2008)
J. B. Opinion No. 32-08WC (amended)
v. By: Phyllis G. Phillips, Esq.
Hearing Officer
Steven Betit
For: Patricia Moulton Powden
State File No. Y-51024
The July 22, 2008 Opinion and Order in the above claim is hereby amended as follows:
Based on the foregoing findings of fact and conclusions of law, Defendant is ORDERED to pay:
1. Permanent partial disability benefits in accordance with Dr. Gennaro’s 50% whole person impairment rating;
2. A 10% penalty added to the amount payable in accordance with Dr. Boucher’s 23% impairment rating;
3. Accrued interest commencing on November 19, 2007 and computed as of the date each weekly payment became due;
4. Costs of $2,442.59 and attorney’s fees in accordance with Workers’ Compensation Rule 10.1220.
5. The benefits paid under this Order constitute compensation for a permanent impairment that will affect Claimant for the rest of hislife. Therefore, although paid in a lump sum the award shall be prorated over Claimant’s life expectancy. Claimant’s remaining life expectancy as of the date of end medical result (May 16, 2007) was 39.8 years, or 477.6 months. After payment of attorney’s fees Claimant shall be entitled to an award of $73,585.41. This award shall be considered to be $154.07 per month for the remainder of Claimant’s life.
DATED at Montpelier, Vermont this 7th day of August 2008.
Patricia Moulton Powden

J. D. v. Employer R (August 2, 2007)

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J. D. v. Employer R (August 2, 2007)
J. D. Opinion No. 22-07WC
By: George K. Belcher
v. Hearing Officer
Employer R. For: Patricia Moulton Powden
State File No. X-00111
Hearing held in Montpelier on March 23 and 24, 2007. Proposed findings and documentation of attorneys’ fees were received on May 16, 2007. The record was closed on June 1, 2007.
Christopher McVeigh, Esq., for the Claimant
William B. Skiff, II, Esq., for the Defendant
1. Whether the Claimant’s psychological condition is caused by her work injury on June 30, 2005;
2. Whether the Claimant has reached a medical end result for her right-sided back, leg and knee injuries suffered in her June 30, 2005 fall at work;
3. Whether the Claimant’s right shoulder condition is related to the injury at work on June 30, 2005 and has the right shoulder reached a medical end result.
Joint Exhibits:
Joint Exhibit I: Medical Records, Medical Bills, and Prescription Summary
Joint Exhibit II: Civil Complaint
Joint Exhibit III: Dept. of Labor Form 25, Wage Statement
Claimant’s Exhibits:
Claimant Exhibit I: Photograph of Storage Area
Claimant’s Exhibit II: Photograph of bar area
Claimant’s Exhibits III: Photograph of bruising of Employee’s right hip
Claimant’s Exhibits IV: Photograph of bruising of Employee’s right ankle
Claimant’s Exhibits V: Photograph of bruising of Employee’s right knee
Claimant’s Exhibit VI: Envelopes, checks and notations
Claimant’s Exhibit VII: Kinney Prescriptions
1. The Claimant had an appointment with Dr. Mercia for a physical evaluation which was scheduled in September of 2006 and cancelled by counsel for the Defendant.
2. The caption of this case will not identify the Claimant or the Defendant because of the sensitive nature of the history of sexual abuse of the Claimant.
1. The Claimant is an employee within the meaning of the Vermont Workers’ Compensation Act.
2. The Defendant is an employer within the meaning of the Vermont Workers’ Compensation Act.
3. The Claimant is a 52 year old married woman. She began working for the Defendant in December of 2003. Her job was as a daytime bartender.
4. She worked for almost a year and half for the defendant without incident. During this time she was a good employee with no discipline problems or noticeable emotional problems. She got along well with the customers and the staff. Her duties included service at the bar and some waitressing in the bar area. She would clean the bar area in the mornings. She was also active in decorating and arranging special events at the bar on holidays and on birthdays for the regular customers.
5. On June 30, 2005 she was working at the bar in advance of the July Fourth celebration. She was moving from the bar area to a narrow storage area at the rear of the bar at about 10:50 AM. She tripped and fell. As she fell forward she twisted onto her right side. Some boxes fell onto her. The fall was significant and for some period of time (between five and twenty minutes) she lay on the floor. She was discovered by another employee. Following the fall she was in pain and upset. She drove herself to the home of a friend and called her husband. She then went to her primary medical care provider, Molly Backup, PAC, at Evergreen Family Health.
6. Molly Backup, PAC, had been the Claimant’s regular, primary, medical provider for about eight years. Ms. Backup has an undergraduate degree from Harvard University in Social Anthropology in 1972 and a two year Physician’s Assistant Certification from Yale University in 1974. She has worked at Evergreen Family Health since 1998 with prior experience in other family practices. She works under the supervision of three medical doctors in her practice, but she sees patients, examines them, diagnoses them and treats them without the physicians necessarily being present. She does not prescribe Class V drugs (such as heroin), but she prescribes all other classes of drugs. She does not have hospital privileges. She diagnoses and treats most types of ailments. She does not deliver babies. She diagnoses mental illnesses when a psychiatric consult is not available or not warranted.
7. PAC Backup observed the Claimant on June 30, 2005 (the same day as the fall) as limping and in apparent severe pain in her right hip, right leg, and right shoulder with a decreased range of motion in her right shoulder. Ms. Backup prescribed pain medication and ordered further diagnostic tests. (See Evergreen Family Health note of June 30, 2005). At their next appointment on July 14, 2005, Ms. Backup noted bruises over the Claimant’s right knee, hip and right shoulder and decreased sensation in her right leg. The bruising indicated the severity of the injury. The pain in the right side of the back and the right leg were totally new to the Claimant. On July 6, 2005 the Claimant had a series of x-rays which were normal except for mild degenerative changes. An MRI performed on July 10, 2005 was likewise showing no objective evidence of a noticeable change from an MRI done before the fall.
8. The Claimant’s husband photographed the bruising of her right hip, ankle and knee. (See Claimant’s Exhibits 3, 4, and 5).
9. Following the fall, the Claimant attempted to return to work several times. Each time the pain was too significant. On July 11-13 she worked but could not stand the pain and could not return to work.
10. Between the time of the fall on June 20, 2005 and mid July 2005, the Claimant was asked by her treating medical providers for a Workers’ Compensation number so that they could present their bills to the insurer.
11. The Claimant later contacted the Department of Labor and was told that no first report of injury had been filed by the Defendant. The Defendant filed a First Report of Injury on July 28, 2005. The Claimant filed her own Form 21 and Form 25 in September of 2005. She was contacted by one of the principals of the Defendant and was asked whether she had private disability insurance. She was told by this person that the Defendant would get back to her, which did not happen. In early August, 2005, the Claimant was told by the Department of Labor that the Defendant had no Workers’ Compensation insurance. According to the Department’s file, the Workers’ Compensation insurer cancelled the Defendant’s Workers’ Compensation policy for non-payment of premium on December 26, 2003. A representative of the Defendant testified that they were unaware that they had no insurance.
12. The Claimant was unable to work and was surprised to learn that the Defendant had no Workers’ Compensation insurance.
13. One of the principals of the Defendant (B.M.) promised to call her every Friday and did not do so. Also no payments to the Claimant were forthcoming until August 23, 2005, at which time one of the principals of the Defendant came to the home of the Claimant and presented a check for the accrued Workers’ Compensation benefits. Thus, the first check which was delivered covered a period of time of almost seven weeks.
14. The next check received by the Claimant was received on October 8, 2005, covering a six week period. On October 21, 2005, the Claimant, a representative of the Defendant, and a representative of the Department of Labor, had a conference in which it was resolved that the Defendant would pay the Claimant a disability check every two weeks henceforth.
15. Of the 28 checks for compensation delivered to the Claimant between August 24, 2005 and October 31, 2006, the average delay between the end of the payment period and the mailing or delivery of the check was 13 days. The checks were consistently late without explanation. When asked about the tardiness of the checks, one of the principals of the Defendant (S.M.) stated that the Claimant could have come to the employer’s place of business to pick up the check, despite no evidence that this was ever her obligation or the arrangement for delivery of the checks. In addition to the tardiness of the checks, many of the checks were written to the Claimant with her name spelled incorrectly. Starting with a check written in February of 2006, the memorandum section of some of the checks contained language such as “out since June pay-deep bruising” (2/1/06), “on going injury”(5/22/06),”Deep bruising/psychological”(6/5/06), “deep bruising from a simple fall” (6/20/06), “ongoing deep bruising” (8/11/06), “unbelievable” (8/31/06), “rip-off” (10/19/06). See CL. Ex. 6. These comments on the checks were written by SM, a principal of the Defendant.
16. There was little contact between the Defendant and the Claimant and no one specifically called her to find out how she was doing.
17. During the previous years in which Ms. Backup had treated the Claimant, she had never suspected that the Claimant was clinically depressed. She had never before asked her to complete a depression questionnaire. Ms. Backup first suspected that the Claimant was becoming depressed on July 29, 2005. She administered a questionnaire to test for depression but the Claimant, at that time, did not meet the clinical definition of depression. Ms. Backup again administered the depression test to the Claimant on September 22, 2005. She determined, at that time, that the Claimant met the definition of clinical depression.
18. The Claimant continued to experience right sided back pain, right leg pain and right shoulder pain. She was given a no-work slip and was not able to work.
19. By October or November of 2005, the Claimant began staying in bed, feeling like she was being treated as a “nobody”. During periods during the fall of 2005 she would not answer the telephone and “could not face anything.”
20. In March of 2006 the Claimant was admitted to the Fletcher Allen Hospital psychiatric ward where she was evaluated and treated by Dr. Richard Bernstein, who is a board certified psychiatrist and a member of the University of Vermont Medical School faculty, teaching and practicing general psychiatry. He diagnosed the Claimant as having “Major Depressive Disorder and Post Traumatic Stress Disorder”. This admission was from March 20, 2006 through April 3, 2006. The Claimant was admitted to the same psychiatric ward on the following dates: May 8, 2006 through May 16, 2006; June 20, 2006 through June 26, 2006; August 19, 2006 through August 21, 2006; and December 14, 2006 through December 21, 2006. These admissions were voluntary, but it is clear from the records that the Claimant was severely depressed, anxious, withdrawn, and unable to function at the time of most of her admissions. Several of her admissions were accompanied by suicidal ideation.
21. The Claimant had a history of right shoulder pain and treatment before her fall of June 2005. The medical records report right shoulder problems going back to October, 1997. In May of 2003 her right shoulder was causing her pain and she received an injection; In November of 2003 her right shoulder was still causing her some pain.
22. In the opinion of Ms. Backup the right shoulder injury, which is the subject of the instant case, was a sprain to the right rotator cuff, with spasms. This diagnosis was distinct from the prior right shoulder diagnosis which was “calcific tendonitis” of the right shoulder. A distinguishing factor between the two injuries was that the previous condition seemed to respond to therapy by injections whereas the right shoulder problem which arose from the June 30, 2005 injury did not respond as well to this treatment.
23. PAC Backup was quite certain in her medical opinions. The right shoulder, the right hip and back and right leg pain were causally related to the fall on June 30, 2005. Moreover, the Claimant’s depression was causally related to the fall as well. She explained her opinion by pointing out that the Claimant had never sought to be out of work in prior injuries. She was always anxious to return to work. She had never presented as a depressed patient before the fall. The depression developed soon after the fall and during the period when the Workers Compensation benefits were in question.
24. The Claimant has been in physical therapy for her right-sided back and right leg pain since the injury on June 30, 2005. She did a series of 18 visits with Long Trail Physical Therapy between July 19, 2005 and August 29, 2005. She then treated with Porter Rehab and Ortho Services at Porter Medical Services Inc. She started treatment there on August 9, 2006. In a report of September 26, 2006 the physical therapist noted in the assessment section of her report, “Pt is reporting slow gains” and, “She is very motivated and has realistic goals.”
25. In order to evaluate the causation and extent of the compensable injuries, the pre-injury medical, emotional, and employment history of the Claimant becomes relevant.
26. The Claimant was born in Vermont and her father died at an early age. She moved to Connecticut and Massachusetts. At the age of 15 she was the subject of sexual abuse by her step-father. She was made to drop out of high school and was home-schooled. She suffered the sexual abuse between the ages of 15 and 25 during which time she lived at home. She had been threatened by her step-father and felt that by staying in the home she might preclude her younger sister from being molested by him. Her step-father died when she was 25 years old and the abuse stopped. She later learned that he had abused at least one of her other sisters. She did not often disclose the abuse. It was not disclosed to the medical professionals such as Molly Backup, or to the psychiatric professionals such as Dr. Bernstein or Dr. Erickson, until it became a matter of a public disclosure on June 14, 2006.
27. At age 30 she married. She worked at a milk hauling business for 15 years doing a variety of jobs including scheduling, routing, dispatching, and bookkeeping. She was responsible for thirty truck drivers. She later divorced from her first husband but she remained on good terms with him.
28. She then worked at a local Vermont restaurant for seven years as a waitress/manager. She worked hard and had to be fast to keep up. She met her current husband in 2000 while working at this restaurant and he described her as the best waitress, being very capable. This was a busy job which was physically demanding. On April 24, 2002 she had an L-5/S-1 laminectomy/discectomy in order to treat increasing pain in her left back. This surgery left her with some nerve damage. She also had some bursitis in her left hip. She was almost fully recovered from her hip surgery and she was preparing to return to work, when she was involved in a motor vehicle accident on July 10, 2002. In the motor vehicle accident she injured the left side of her back. She also “banged” her right shoulder. Following the accident she had chronic pain on her left side in her back and her left leg. She also developed pelvic floor pain.
29. Following her motor vehicle accident she returned to work again at her prior job in September of 2002. She worked there for about a year but she was not able to keep up with the fast pace. Also, some of the other waitresses were not willing to return her to the prime shifts. She voluntarily left this job in September of 2003. In December of 2003 she was hired by the Defendant as a bartender. She disclosed her prior back problem to the employer but she clearly felt that she could do this job which required less lifting and running. She continued to work at the job without problem until June 30, 2005.
30. In 2003 and 2004 she had injections to her right shoulder for pain.
31. Prior to the incident on June 30, 2005 the Claimant usually had a positive disposition. She was spontaneous. She had friends and liked to engage with her close friends. She was active in Weight Watchers and was concerned about her weight and her grooming. While she occasionally had ordinary ups and downs, neither her husband nor two close friends who testified, noticed what they would call clinical depression. The Claimant had never been treated for significant depression by a therapist or psychiatrist before the accident and she had never been on anti-depressants for a significant period of time as a treatment for depression. 1 Most importantly, she had never been depressed in a way which interfered with her ability to work and to function in her personal life.
32. The Claimant had a history of increasing left back pain and left leg pain which had continued from the surgery in 2002 to the time of the fall in 2005. She was referred to Dr. Tarver at the Fletcher Allen Health Care pain clinic in June of 2005 concerning this ongoing pain. Similarly the Claimant had a gradual and consistent rise in her prescription of Hydrocodone from June in 2001 at the rate of 12 per month, to 150 per month as of May 2005. On June 29, 2005 (the day before the work injury) the Claimant was seen at Evergreen Family Health complaining of increasing pain and the need for more pain medication. During that visit her discomfort was obvious with her sitting sideways on the edge of her chair. She reported that it was hard to work with the pain. Nonetheless, she went to work the following day.
1 The Claimant did take a low dose of an antidepressant for a short time following the death of a relative several years before her fall. This was insignificant to the issues being considered in this action.
33. It is clear that as a result of her spine surgery and motor vehicle accident she had chronic pain in her left back and left leg. She also had lower pelvic pain, rectal and vaginal pain, which also affected her sexual life.
34. There was some evidence introduced that the Claimant may have had some level of depression before the fall in June of 2005. When the Claimant was admitted to the Fletcher Allen Health Care mental health unit it was noted that the claimant had a “four year history of intermittent depression, PTSD, and chronic, severe low-back pain”. See Fletcher Allen Health Care note of March 22, 2006. The entry was repeated in several of the ongoing medical records of the Claimant during subsequent days during this admission and in other admissions. It was the position of the Defendant that the Claimant had a preexisting condition of depression, chronic pain syndrome, post-traumatic stress disorder, and sexual abuse history and that it was a combination of these factors (unrelated in any way to the fall on June 30, 2005, which caused her psychiatric hospitalizations). This concept was refuted by Dr. Bernstein.
35. Dr. Bernstein testified that this first note of a “four year history of depression, PTSD, chronic, severe low back pain” was likely made by the weekend on-call psychiatrist, without the level of specificity which would be done by a treating psychiatrist for a regular in-patient. It was clear that even though Dr. Bernstein had signed as having reviewed these notes, he did not agree that the Claimant had a four year history of depression. She had not been treated for depression before her admission, there was no medical history of treatment, and even if she were to have such a history, it did not interfere with her ability to work. There were no independent medical or psychiatric records from other providers which corroborated such a history.
36. The Claimant had not disclosed to her psychiatrists her history of sexual abuse until it was disclosed in June of 2006. Since the sexual abuse had not been disclosed, and since there were inconsistencies in the medical records, the Defendant argues that the subjective information given by the Claimant to her medical providers was suspect, inconsistent and incredible. Therefore, the Defendant argues, the opinions which were in large part based upon this information were likewise unsupported.
37. Molly Backup, PAC, was of the opinion that the Claimant’s right-sided back pain, leg pain and shoulder pain were related to the fall on June 30, 2005. She noted that the right-sided, low back pain and leg pain had never been experienced before by the Claimant and that the right shoulder pain seemed to be different from the previous “intermittent” right should problem which had responded well to treatments. It was also her opinion that the Claimant’s depression was related to the fall of June 30, 2005 and the aftermath of frustration with the compensation issues. In her opinion, the injuries and pain, coupled with a feeling of betrayal by the treatment by the employer, was a primary cause of the Claimant’s depression. Finally, when asked whether the Claimant was at a medical end result for the injuries suffered in the fall, she stated that she “hoped not”. She went on to explain that it was her belief that the ongoing physical therapy would help the Claimant continue to improve. She testified that the Claimant was “definitely not” at an end result concerning the depression. It was her opinion that the Claimant is not able to work at the present time due to her depression and her medication.
38. Dr. Brian Erickson is a licensed psychiatrist, in the State of Vermont. He is a 1987 graduate of the University of Minnesota Medical School and did his psychiatric residence at the University of Vermont in 1991. He did ten years of general psychiatry in Minnesota before returning to Vermont in 2001. He is the Medical Director for Electro-convulsive Therapy at Fletcher Allen Health Care and also works at the Center for Pain Medicine which is a chronic pain clinic. He was board certified in 1993. His special areas of practice are ECT and chronic pain.
39. The Claimant was referred to Dr. Erickson on November 22, 2005 by Drs. Fenton and Tarver for back problems and pain associated with a 2002 laminectomy/discectomy, the 2002 motor vehicle accident and the 2005 fall. Dr. Tarver made the referral associated with a pain assessment and Dr. Fenton made the referral associated with PTSD surrounding the motor vehicle accident. Dr. Erickson is one of the treating psychiatrists of the Claimant and he has continued to treat her since the referral. During the time that the Claimant was treating with him he noted an increasing depression which eventually resulted in her hospitalization. It was the opinion of Dr. Erickson that the Claimant’s depression was causally related to her fall at the Defendant’s place of employment. More than the pain, the Claimant’s feeling that she was betrayed by her employer re-ignited feelings which had been suppressed concerning low self-esteem and fear. He diagnosed her as having depression, “pain disorder with psychological factors and medical condition”, and post-traumatic stress disorder. In his opinion, the post-traumatic stress disorder was a product of the motor vehicle accident and not a product of, or aggravated by, the fall at work. He testified that her PTSD symptoms are less now than they were, and that he is not now treating her for PTSD. The pain disorder diagnosis was the result of pain from the laminectomy/discectomy, the motor vehicle accident and the fall, but he could not say how much each of these contributed to her overall pain condition.
40. Dr. William Mercia is a Vermont medical doctor who received his undergraduate degree and medical degree from the University of Vermont. He became a medical doctor in 1977. He works in the area of occupational health at Occupational Health and Rehabilitation, Inc.
41. The Defendant asked Dr. Mercia to give a second opinion concerning the Claimant’s condition. He examined the Claimant on March 6, 2006 and reviewed many of her medical records. While he gave the Claimant a physical examination, he did not examine her right shoulder, which was an oversight on his part. His report dated March 20, 2006 concluded that the Claimant had a right low back injury and right knee injury and the injury was ongoing. See Medical Records Exhibit, Tab 12. According to the report,
The right lower back and right extremity symptoms do appear to be causally related to her work injury of 6/30/05. This appears to represent a mechanical low back problem that has been resistant to skilled PT and, with exacerbation of chronic low back pain and sciatica, appears to require substantial doses of narcotic analgesics and muscle relaxants. Her recovery has been negatively impacted by overlying depression and anxiety. I would characterize her present rehabilitation potential as fair, because of the psychosocial factors. If she is to be successful in returning to work in a meaningful way, I feel a multidisciplinary, function-oriented program will be necessary.
The report went on to recommend further tests and the use of another program. If she were to decline, he then would suggest an Independent Medical Exam to assess the claim “in a more comprehensive manner” and to comment on whether she has reached a medical end result. A second evaluation was scheduled for the Claimant to visit Dr. Mercia, but before the evaluation could occur, Dr. Mercia disclosed to Defendant’s counsel that it was his opinion that the Claimant was not at a medical end result. Thereafter, the second examination was cancelled by Defendant’s counsel. In his first report he determined that the Claimant’s right shoulder problem was related to the fall, but after consulting with counsel for the Defendant, he changed his opinion. It is his current opinion that the Claimant has lost function and physical fitness and coping skills as a direct result of the fall at work. His opinion is that she had chronic pain syndrome before the fall at work and that she had this condition after her fall. He agrees that the fall exacerbated her chronic pain syndrome. He now believes that the Claimant is now at a medical end result.
42. Dr. John R. Johansson is a Doctor of Osteopathy. He completed his training in Osteopathy in 1982. He is board certified in family medicine and he works at Champlain Sports Medicine. He regularly treats musculatoskeletal injuries. He also does independent medical examination and impairment ratings. He did not physically examine the Claimant. Rather, he did a record review of her medical records. Dr. Johansson issued a report on September 18, 2006 (Medical records, Tab 18). In this report it was his conclusion that the Claimant received a bruise from her fall and that the “majority of her physical findings subsequent to that fall were related to her chronic lower back condition, which was actively treated before and subsequent to this accident.” In making this determination he relied heavily upon Dr. Fenton’s report of August 30, 2005 was made following a complete physical examination of the Claimant. Dr. Johansson also opined that the Claimant’s right shoulder problem was unrelated to her fall. On October 10, 2006 he added an addendum to his report without additional findings to the effect that the “contusion she sustained associated with the work injury has reached a medical end result.” See Tab 18, Medical Records. Dr. Johansson testified that most sprains or strains heal within 4-6 weeks and that most bones heal within three months. He admitted that some of the records upon which he relied in his opinions were not clearly identified in his report. He also admitted that a physical examination is preferable to a record review in making a determination of medical end result.
43. Dr. Johansson’s report states in part,
I have reviewed thoroughly all the medical records that were provided and mentioned in my initial paragraph. It is my opinion within a reasonable degree of medical certainty, that the patient had no findings, either objective on clinical examination throughout the records, or more specifically, MRI findings, that indicate objective worsening of her condition as a result of the fall she sustained at the [Defendant’s place of work].
This statement ignores the significant bruising of the right hip, right knee and right shoulder which was observed by Molly Backup and the decreased range of motion in the right shoulder observed by Ms. Backup. Dr. Johansson’s opinion is contradicted by the opinion of Dr. Mercia, who like Dr. Fenton did a physical exam and determined that: (1) the fall on June 30, 2005 created an ongoing injury as of March, 2006; (2) the fall caused a lumbosacral sprain which affected the right side and right knee; (3) and that the fall on June 30, 2005 exacerbated her existing chronic pain syndrome. Finally, Dr. Johansson’s opinions are greatly swayed by the examination of Dr. Fenton. Dr. Fenton did an IME of the Claimant on August 30, 2005. Dr. Fenton’s report was done at the request of the attorney representing the Claimant in her motor vehicle accident claim. Dr. Fenton’s report did not address the Claimant’s complaint of right leg and right back pain. It did not specifically address the right shoulder pain. Because Dr. Fenton found no objective evidence of injury which would explain the right sided pain, and because his report did not deal with her complaints, Dr. Johansson concluded that the right-sided problem was simply not there.
44. Rebecca Winokur, MD, was of the opinion on November 8, 2006, that the Claimant had: (1) a right rotator cuff sprain with chronic spasms of the rhomboids and trapezium; (2) multiple psychiatric co-morbidities including [the Claimant’s] challenges in coping with the injuries and chronic pain she has had. See Joint Medical Exhibit, Tab 9. This is the same diagnosis of the right shoulder problem that was made by Molly Backup, PAC.
45. Dr. Richard Bernstein graduated with a BS from Dartmouth College, a Medical Degree from Boston University and a residency in psychiatry from the University of Vermont. For many years Dr. Bernstein has been on the faculty at the University of Vermont Medical School. He has practiced psychiatry for over thirty years and is a staff psychiatrist at the Fletcher Allen Health Care Adult-In-Patient Unit. He was the treating psychiatrist for the Claimant during her various admissions as an in-patient at FAHC. He is Board Certified in general adult psychiatry. He diagnosed the Claimant with “major depressive disorder’ and post-traumatic stress disorder. In his opinion the depression is causally related to the fall at work. In his opinion the Claimant’s prior sexual abuse did not contribute to her depression except that it made up part of her history. He rationalized that she had been a productive person and had “moved on” in her life from the sexual abuse. It was also his opinion that pain, and chronic pain, can be a stressor which is associated with depression. When asked whether the past complications of the Claimant’s life (her prior sexual abuse and its recent disclosure, her chronic pain from 2002, the motor vehicle accident of 2002, the loss of sexual function from the motor vehicle accident) were the real cause of the Claimant’s depression and hospitalization, Dr. Bernstein was quite clear. She had been able to cope with many of these events and she had remained functional. It was the fall at work, her ultimate pain and unemployment, and the feeling of disloyalty from her employer, which were the true causes of her depression, on his opinion.
46. The Claimant’s attorney expended 240.8 hours in representation of the Claimant in this matter and costs in the amount of $4,623.31. The Claimant executed a written fee agreement with her counsel. The bill for legal services, costs and fee agreement were filed on or about May 30, 2007. The amount of time expended by the Claimant’s attorney at first blush seems unusually large, however the nature of this claim, the complexity of the Claimant’s medical history and the legal issues involved persuade me that the fees are reasonable. There was an objection that the fees were not billed in increments of one-tenth of an hour, however the one-tenth of an hour increment was used. There were simply no charges of less than two tenths of an hour.
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). The Claimant must establish by sufficient credible evidence the character and extent of the injury and disability as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984).
2. 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 inference from the facts proven must be the more probable hypothesis. Burton v. Holden and Martin Lumber Co. 112 Vt. 17 (1941).
3. Where the causal connection between an accident and an injury is obscure, and a layperson would have no well-grounded opinion as to causation, expert medical opinion is necessary. Lapan v. Berno’s Inc., 137. Vt. 393 (1979).
4. To establish a physical-mental claim, the claimant must prove a causal nexus between a compensable physical injury and psychological impairment. See Blais v. Church of the Latter Day Saints, Op. No. 30-00 WC (1999).
5. When evaluating between conflicting expert opinions, this Department has weighed several factors: 1) whether a medical expert has had a treating physician relationship with the claimant; 2) the professional education and experience of the expert; 3) the nature of the evaluation performed, including whether the expert had all the medical records in making the assessment; and 4) the objective bases underlying the opinion. See Yee v. IBM, Op. No. 38-00 WC (2000); Miller v. Cornwall Orchards, Op No. 20-97 WC (1997).
6. In this case, Physician’s Assistant Molly Backup, Dr. Erickson, and Dr. Bernstein all testified that the Claimant’s depression was related to the injury and its aftermath. They are all in a treating physician relationship with the Claimant. Drs. Johansson and Mercia were not in a treating relationship with the Claimant.
7. Clearly, Ms. Backup had the longest association with the Claimant before the accident and afterward. She had the ability to evaluate the functional capability of the Claimant through all of her complex injuries and medical problems. Her strong and unequivocal opinion is entitled to great weight. (See Drew v. Northeast Kingdom Human Services, Op. No. 47-06 WC (2007) in which the testimony of a nurse practitioner, supported by two other physicians, was more credible than a countervailing expert opinion by a medical doctor.)
8. An employer takes each employee as is, and is responsible under Workers’ Compensation for an injury which disables one person and not another. Paton v. State of Vermont Dep’t of Corrections, Op. No. 4-04 WC (2004) (citing Morrill v. Bianchi, 107 Vt. 80 (1935).
9. Larson’s Workers’ Compensation Law, Sec. 10, Synopsis to Chapter 10 provides in the section captioned “Range of Compensable Consequences” as follows:
When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant’s own intentional conduct. More specifically, the progressive worsening or complication of a work-connected injury remains compensable, so long as the worsening is not shown to have been produced by an intervening, nonindustrial cause.
Slayton v. Consolidated Memorials, Op. No. 49-06 (2007)
10. The Claimant has produced credible expert testimony that her disabling depression was caused by the work related injury, the resulting pain and inability for her to work, and her upset caused by the employer’s inability to process her workers’ compensation claim in a timely and professional manner. There was no expert testimony introduced by the Defendant that the Claimant’s depression and five hospitalizations were not related to her fall at work. Likewise there was no significant question raised as to the sincerity of the Claimant’s descent into a very serious depression following the injury. While the Defendant highlights several inconsistent medical records and the Claimant’s failure to disclose her past sexual abuse, these problems with Claimant’s case were either explained or were understandable given the nature of Claimant’s history. (Contrast Carpenter v. Bell Atlantic, Op. No. 03-04 WC (2004) where claimant’s symptoms were found to be erratic and magnified.) I conclude that the psychological injury of depression is related to the fall at work. The Claimant also has a diagnosis of post traumatic stress disorder but this psychological injury is not related to the fall at work and has not interfered with her capacity for work.
11. Concerning the right shoulder injury, again the testimony of Molly Backup, PAC, was particularly persuasive. She had treated the Claimant’s right shoulder for a long period of time. The intermittent problem of calcific tendonitis was distinct and separate from the post-fall diagnosis of rotator cuff sprain with spasms. Her opinion as to diagnosis was buttressed by Dr. Winokur. The right shoulder injury is causally related to the injury at work.
12. On October 17, 2006, the Department partially accepted a Form 27 (Employer’s Notice of Intent to Discontinue Payments) in response to the report and opinion by Dr. Johansson on October 10, 2006. Essentially Dr. Johansson determined that the Claimant had suffered only simple bruising in her fall and that the bruising had long since healed. Dr. Mercia also testified that the Claimant had reached a medical end result for her injuries.
13. “Medical end result means the point at which a person has reached a substantial plateau in the medical recovery process, such that significant further improvement is not expected regardless of treatment.” WC Rule 2.1200.
14. While the Claimant has the burden of proof in the first instance, once the claim is accepted and benefits are paid, the employer must show that the Claimant has either returned to work or that the discontinuance of the benefits is warranted. 21 VSA Sec. 643a. The burden of proof to terminate a claim which has been accepted is upon the employer. Merrill v. University of Vermont, 133 Vt. 101 (1974). I find that the Defendant has not met its burden of proof concerning medical end result for the right back and right leg problem. It was on or around September, 2006 when Dr. Mercia’s appointment was cancelled when it became known that he felt the Claimant was not at end result. Dr. Johansson’s opinion about end result never really addressed the Claimant’s right sided pain as a new development, or the fact that her injury to the right side aggravated her existing, left-sided, low back pain. Ms Backup explained that she felt the physical therapy was helping the Claimant.
15. The Claimant provided evidence that the right shoulder injury is improving with physical therapy (according to Molly Backup).The Defendant did not address right shoulder maximum medical improvement since Dr. Johansson and Dr. Mercia simply determined that the right shoulder problems were unrelated to the fall. Neither of them examined the right shoulder. I conclude that the Claimant has not reached a medical end result from the overall injuries which were proven since she is still functionally unable to work as a result of her depression and that this psychological injury has not reached maximum improvement.
16. The Claimant has prevailed in her claim for compensability of the psychological condition, causation related to the right shoulder and the issue of end result. She is entitled to the requested attorney fees and costs pursuant to 21 VSA Sec. 687 and WC Rule 10.000.
Therefore, based on the foregoing findings of fact and conclusions of law, Defendant is ORDERED to adjust this claim including the payment of:
1. Medical benefits associated with the right arm;
2. Medical benefits associated with the psychiatric hospitalizations;
3. Past temporary total benefits from the date temporary total benefits ceased until a medical end result is reached or until the Claimant returns to work, whichever is earlier;
4. Interest on the unpaid temporary total benefits from the date such benefits should have been paid consistent with this order.
5. Attorney’s fees in an amount of $21,672.00 and costs of $4,623.31.
Dated at Montpelier, Vermont this 2nd day of August 2007.
Patricia Moulton Powden
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.

Paul Hill v. CV Oil Co, Inc. (August 7, 2009)

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

Paul Hill v. CV Oil Co, Inc. (August 7, 2009)
Paul Hill Opinion No. 15A-09WC
v. By: Jane Dimotsis, Esq.
Hearing Officer
CV Oil Co., Inc.
For: Patricia Moulton Powden
State File No. S-03322
Defendant moves to amend that portion of the Commissioner’s May 26, 2009 Order relating to interest on the permanent partial disability benefits awarded. Defendant states two grounds for doing so. First, Defendant argues that it should not be assessed interest on the permanency awarded for Claimant’s physical injuries because Claimant previously had refused its tendered payment of the amount ultimately awarded. Second, Defendant argues that interest on the permanency awarded for Claimant’s psychological injury should be assessed only as of the date it was rated, not back to the date of end medical result.
As to the first issue, Claimant counters that he was justified in refusing Defendant’s tender because (a) it was offered as a lump sum and in a way that would not have protected Claimant’s entitlement to SSDI benefits adequately, see 21 V.S.A. §652(c); and (b) it did not account for the full extent of Claimant’s permanency, both physical and psychological. As to the second issue, Claimant argues that the appropriate date for assessing interest is the date of end medical result.
Interest on Physical Permanency Award
The Commissioner’s May 26, 2009 Order awarded permanent partial disability benefits referable to Claimant’s physical injuries in accordance with Dr. White’s 7% whole person impairment rating. Defendant first proposed a Form 22 Agreement for Permanent Partial Disability Compensation in accordance with that rating in August 2004. Claimant did not sign the form and Defendant’s repeated attempts to follow up with his attorney went unanswered.1 Finally, in November 2006 Defendant sent a check for the full amount owed. To this action Claimant’s attorney finally responded, and returned the check uncashed.
1 Appended to Defendant’s Motion are nine letters addressed to Claimant’s attorney, spanning a date range from August 31, 2004 through November 20, 2006. Each one referred to prior correspondence and requested a response as to Defendant’s proposed Form 22. It would have been better had the interest issue been raised, and these letters introduced into evidence, at the formal hearing.
Claimant argues that because Defendant had not offered complete compensation for his injuries (both physical and psychological), he could not sign the proffered Form 22. According to Claimant, furthermore, to accept the tendered check without a signed Form 22 would have jeopardized his right to an offset against his monthly SSDI benefit. For those reasons, Claimant asserts that he was justified in not accepting Claimant’s proffered payment and that therefore it is appropriate to award interest now.
Claimant’s argument is not persuasive. I note, first of all, that had Claimant’s attorney responded in a more timely fashion to Defendant’s repeated attempts to resolve the physical permanency issue, the parties might have sought approval for a partial lump sum permanency payment in accordance with §652(c). Had they done so, the appropriate SSDI offset language could have been included and Claimant’s interests adequately protected. Claimant’s attorney having failed to respond, however, by the time Defendant tendered its check the payments were for past due benefits, and therefore §652(c) was no longer even applicable.
Defendant is not entirely blameless either, however. Had it acted in accordance with Workers’ Compensation Rule 3.1200, it would have notified the Commissioner and begun advancing weekly benefits much sooner than it did.
In the end, although Defendant did not follow the letter of our rules, it at least complied with their spirit – it tendered the amount that it admitted was owed and about which no genuine dispute existed. With that in mind, I find it appropriate to award interest on the physical permanency award from the date payments should have commenced – September 10, 2004, the date on which temporary disability benefits terminated on the basis of end medical result – until the date they were tendered, November 20, 2006.
Interest on Psychological Permanency Award
The Commissioner’s award of permanency benefits referable to Claimant’s psychological injury was based on his expert witness’ impairment rating, which was not issued until August 5, 2007. Defendant contends that interest should run from that date forward rather than from the date of end medical result, September 10, 2004. Defendant argues that it could not be expected to make permanency payments in accordance with an impairment rating that had not yet issued, and that therefore to impose interest from the earlier date forward would be unfair.
Prior formal hearing decisions are conflicting as to the appropriate date from which to compute interest in cases such as the present one. Compare McCrillis v. Vermont Castings, Opinion No. 62-98WC (November 7, 1998) (interest runs from date of end medical result) with Merchant v. A&C Enercom, Opinion No. 27-04WC (July 20, 2004) (interest runs from date of permanent impairment rating). The statute requires that interest be computed from “the date upon which the employer’s obligation to pay compensation under this chapter began.” 21 V.S.A. §664. According to §648(a), the obligation to pay permanent partial disability benefits begins “at the termination of total disability,” which in this case was as of the date of end medical result. The plain language of the statute, therefore, dictates that interest begin to run as of that date.2
Defendant’s Motion to Amend the May 26, 2009 Order is hereby GRANTED IN PART. Paragraph 2 of the Order is amended to read:
2. Interest on the 7% permanent partial impairment referable to Claimant’s physical injuries calculated from September 10, 2004 until November 20, 2006, and on the remaining 16% permanent partial impairment referable to Claimant’s psychological injuries calculated from September 10, 2004 forward, both in accordance with 21 V.S.A. §664.
Claimant’s request for attorney fees incurred in responding to Defendant’s Motion to Amend is hereby DENIED.
DATED at Montpelier, Vermont this 7th day of August 2009.
Patricia Moulton Powden
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.
2 Defendant was on notice as of the date of end medical result that Claimant might be entitled to permanency benefits relating to his psychological injury. A month earlier, in the context of his permanency evaluation Dr. White specifically noted that his impairment rating referred only to Claimant’s physical impairment, and that “there may be permanent impairment related to psychiatric disorders, but that would be in the realm of a psychiatrist to determine.” Defendant also could have mitigated the effect of an interest award by proffering payment in accordance with its own expert’s psychological impairment rating, which was issued in July 2007, but chose not to.

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