Tag Archive for: Odd Lot doctrine

C. F. v. S. D. Ireland Concrete (September 17, 2008)

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C. F. v. S. D. Ireland Concrete (September 17, 2008)
C. F. Opinion No. 35-08WC
By: Jane Dimotsis
v. Hearing Officer
S.D. Ireland Concrete For: Patricia Moulton Powden
State File No. U-52496
Formal Hearings held in Montpelier on August 28, 2007 and October 31, 2007
Record Closed December 2007
Steven P. Robinson, Esquire, for the Claimant
Keith J. Kasper, Esquire, for the Defendant
1. When did Claimant reach end medical result?
2. Is Claimant permanently and totally disabled under 21 V.S.A. §644(b)?
3. If not, what is extent of claimant’s permanent partial impairment?
Joint Exhibit I: Joint Medical Exhibit
Joint Exhibit II: Supplemental Medical Exhibit
Joint Exhibit III: Louise Lynch Deposition Transcript
Claimant’s Exhibit 1: Bushey Letter
Claimant’s Exhibit 2: Gregory LeRoy’s CV
Defendant’s Exhibit A: Fran Plaisted’s CV
Temporary total disability benefits through July 24, 2006 pursuant to 21 V.S.A. § 642;
Permanent total disability benefits under 21 V.S.A. § 644(b) or alternatively,
permanent partial disability benefits under 21 V.S.A. 648;
attorney’s fees and costs under 21 V.S.A. § 678.
1. Claimant was an employee within the meaning of the Workers’ Compensation Act and S.D. Ireland was an employer under the Act on the date of Claimant’s injury.
2. Judicial notice is taken of all forms contained in the Department’s file relating to this claim.
3. Claimant’s injury occurred on April 14, 2004 and caused chronic left shoulder pain and other limitations. Claimant underwent a shoulder arthroscopy subacromial distal clavicle excision and open rotator cuff repair by Dr. Bryan Huber on July 27, 2004. The surgery was not successful. Claimant was left with a significant amount of pain and little to no use of his left arm. This injury was determined compensable by the Department in a decision and order dated July 19, 2005.
4. After Claimant suffered his shoulder injury he was unable to continue working for the Defendant as an equipment operator. Defendant assigned him to work as a flagger for two weeks, and later terminated his employment in June of 2004.
5. The insurer paid benefits in the form of Temporary Total Disability Benefits (TTD) from November 5, 2005 until December 22, 2005. At that time, the Claimant had an average weekly wage of $704.49 resulting in an initial compensation rate of $469.33. Claimant had returned to work for a former employer on a less than full time basis from December 11, 2004 until approximately October 31, 2005 due to financial necessity. This former employer also terminated him due to his inability to use his left arm.
6. Claimant is a 67-year-old male. He had formal schooling through the eighth grade and can read and write. He has the reading ability of a fifth grader and math abilities on a sixth grade level. Claimant rarely reads and relies on his wife to fill out paper work for him. Claimant has had experience in logging, construction, operating heavy equipment and driving trucks. At the time of his injury Claimant was working as an equipment operator for Defendant.
7. Claimant wants to go back to work. He has worked all of his life beginning with farming. He had planned on working until he was 70 years old. However, his left arm is painful and he has loss of sensation in his left hand. He feels numbness from his fingers up his arm into his neck. Most of the time he keeps his arm in his pocket. He has no grip with his left hand. He drives by keeping his left arm under the steering wheel. He can’t drive more than a distance of 10 miles due to the inability to use his left arm. He does not take prescription drugs because he does not want to become addicted to them. He does take Ibuprofen for pain.
8. Claimant has received physical therapy and chiropractic care for his injury, but continues to have constant pain and numbness in his left arm, hand and shoulder. In order to alleviate the weight of his arm pulling on his shoulder, he must keep his left hand in his pocket while walking or standing. He has poor tolerance to cold weather, and has difficulty sleeping at night. Additionally, he is unable to do most household chores. He is able to walk eight miles a day.
9. Since the time of the injury, Claimant’s physician, Dr. Huber, has treated Claimant’s condition. This treatment included physical therapy, an EMG, an MRI, cervical x-rays, medications, surgical consults, and injection therapy. Because Dr. Huber believed surgery would only have a 20% chance of being successful, Claimant declined this treatment option.
10. In several of the examinations, Dr. Huber noted a modest improvement in Claimant’s condition, and in other examinations, he did not find any improvement to have occurred. On November 19, 2005 Dr. Huber filled out a form stating that the Claimant could return to work with the following restrictions:
a) no repetitive motion
b) no lifting greater than 10 pounds
c) no overhead use of upper extremity
d) no overhead lifting
e) may need periodic rest
f) may return to desk work only/ no truck driving.
11. On April 4, 2006 Dr. Huber wrote that he believed that Claimant had “basically met maximal medical improvement.” On May 5, 2006 Dr. Huber answered “no” when asked if Claimant could return to the traditional labor force at the present time. Barely a month later, on May 23, 2006, Dr. Huber gave Claimant an injection to help his arm move better. This injection was not effective, and Dr. Huber told Claimant that there was nothing else he could do to treat his condition. On July 24, 2006 Dr. Huber placed Claimant at end medical result with a 13% permanent impairment. In doing so, Dr. Huber recognized that Claimant’s underlying condition would not have changed even if his pain level decreased.
12. Dr. Johansson performed an independent medical examination on October 11, 2005, and reviewed his subsequent medical records. He held that Claimant reached end medical result on December 9, 2005 because his condition did not improve after that date.
13. George Fotinopoulos, a vocational rehabilitation counselor, provided an assessment of whether vocational rehabilitation services would benefit Claimant. He found that due to Claimant’s advanced age, limited residual functional abilities, restricted driving ability, extended time out of work, and computer illiteracy he would not be able to return to the work force with vocational rehabilitation services within a reasonable length of time. He did initially explore limited work options for Claimant, primarily making bird houses. Claimant could not do this work due to his shoulder injury. Mr. Fotinopoulos then recommended closure of vocational rehabilitation services, which the Department approved.
14. Iris Banks also performed a vocational assessment on Claimant. She found that vocational rehabilitation could be beneficial for placement in several different occupations. However, she also found that Claimant faced several significant barriers preventing him from returning to work, including his high level of pain and limited stamina and the lack of a high school diploma or GED. She found that if he was to work in a stationary situation, he would require an adjustable workstation that would allow for positional adjustment of his hands and arms. She also noted that a vehicle would have to be modified to allow him to drive with his right hand and provide support for his left hand. Also, Claimant most likely would have to be retrained to do sedentary work. She noted he has no computer skills and no GED.
15. Louise Lynch, a physical therapist and certified work capacity evaluator, performed two functional capacity evaluations on Claimant. In the first evaluation on February 26, 2006, she found that Claimant did not have the ability to return to work as an equipment operator or work as a laborer or tandem driver, but did have a LIGHT work capacity for full time work with occasional use of the left upper extremity below chest level. In the second evaluation, eighteen months later, she found that he did not have a sustainable full time work capacity based upon the Dictionary of Occupational Titles. This referred only to his ability to go to work on a day-to-day basis with the use of both of his hands. She found that he had some positional abilities for sitting, standing, and walking for both SEDENTARY and LIGHT work, and that he could use his right dominate hand on a frequent basis at a LIGHT level. She believed that he could have a full time work capacity if accommodations were made for his left arm and hand.
16. Fran Plaisted, a vocational expert, performed an independent vocational evaluation (“IVE”) on Claimant in July 2006 which she updated on October 19, 2007. She found that the Claimant could return to regular gainful employment in the labor market with further vocational rehabilitative services. She noted that his barriers to employment were not unlike those barriers faced by other individuals with disabilities returning to work. She believed that a plan could have been provided to Claimant including a vocational assessment, adult tutoring for his GED, a driving evaluation, tutoring for computer skills, and vocational exploration to determine occupations that existed in his area that can be performed one-handed or could be modified to be done with one hand.
17. Greg LeRoy, also a vocational expert, performed a vocational rehabilitation assessment on Claimant. He found that vocational rehabilitation would not result in the Claimant being able to return to regular gainful work. He disagreed with the suggestions made for employment by some of the other experts, holding that Claimant does not meet the qualifications for the jobs suggested. Mr. LeRoy also noted that in addition to Claimant’s limited type of work experience, skills, education, and difficulty driving, his age and time out of work also would make it too difficult for him to return to work. He determined that the amount of time needed to bring Claimant’s skills up to the necessary level for sedentary work were unrealistic when considering his age of 67. The fact that the Claimant lives in a very rural area of Hyde Park, Vermont also played a small part in his decision.
18. Attorney’s fees in the amount of $17,514.00 and costs of $6,332.81 were requested by Claimant’s attorney.
1. The main issue in this case is whether further vocational rehabilitation services are available that would make Claimant employable, or whether he is permanently totaled disabled. There is also a disagreement regarding when end medical result occurred.
End Medical Result
2. When evaluating and choosing between conflicting medical opinions, the Department has traditionally considered several factors: (1) the nature of treatment and length of time there has been a patient-provider relationship; (2) whether accident, medical and treatment records were made available to and considered by the examining physician; (3) whether the report or evaluation at issue is clear and thorough and included objective support for the opinions expressed; (4) the comprehensiveness of the examination; and (5) the qualifications of the experts, including professional training and experience. Morrow v. VT Financial Services Corp., Opinion No. 50-98WC (Aug. 25, 1998); Durand v. Okemo Mountain, Opinion No. 41S-98WC (Sept. 1 & July 20, 1998); Miller v. Cornwall Orchards, Opinion No. 20-97WC (Aug. 4, 1997).
3. The parties each rely on the opinion of one doctor: Dr. Huber, Claimant’s treating physician, an orthopedic surgeon, and Dr. John Johansson, Defendant’s independent medical evaluator, an osteopath.
4. Of the factors used in choosing between the conflicting medical opinions, I find several to be equally persuasive. Each doctor had an opportunity to review Claimant’s medical records and each doctor undertook a comprehensive physical examination of Claimant. However, Dr. Huber his treating physician operated on him.
5. Under Workers’ Compensation Rule 2.1200, end medical result is 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. The proper test to determine end medical result is whether the treatment contemplated at the time it was given was reasonably expected to bring about significant medical improvement. Coburn v. Frank Dodge & Sons, 165 Vt. 529, 533 (1996). Here, the doctors disagree about the appropriate date on which Claimant reached end medical result.
6. First, as to the nature of treatment and length of time there has been a patient-provider relationship, it appears that Dr. Huber treated Claimant since the date of his injury, including performing his surgery and treatment. Dr. Johansson has examined Claimant only for the IME. However, Dr. Johansson is much more familiar with the Guides and the IME process. He found the date of end medical result to be December 9, 2005.
7. Although Dr. Huber noted in his reports that he continued to speak with Claimant regarding different treatment options, there only existed a small percentage of hope that doing another surgery would be helpful. Claimant did not choose to go forward with the surgery due to the low odds of it being helpful. Dr. Huber originally stated that he felt that Claimant may have reached maximal medical improvement on April 4, 2006. As a final alternative Dr. Huber gave Claimant an injection in May 2006. The injection was the type used for palliative care or relief of pain. It did not result in any significant further improvement in his condition.
8. As was the case in Coburn, Dr. Huber’s treatment caused Claimant’s injury to be more stable, but did not improve his underlying condition. With that in mind, I find Claimant reached end medical result on December 9, 2005 as Dr. Johansson determined.
Permanent and Total Disability
9. Under 21 V.S.A. § 644(b) and Workers’ Compensation Rule 11.3100:
A claimant shall be permanently and totally disabled if their work injury causes a physical or mental impairment, or both, the result of which renders them unable to perform regular, gainful work. In evaluating whether or not a claimant is permanently and totally disabled, the claimant’s age, experience, training, education, occupation and mental capacity shall be considered in addition to his or her physical or mental limitations and/or pain. In all claims for permanent total disability under the Odd Lot Doctrine, a Functional Capacity Evaluation (FCE) should be performed to evaluate claimant’s physical capabilities and a vocational assessment should be conducted and should conclude that the claimant is not reasonably expected to be able to return to regular, gainful employment. A claimant shall not be permanently totally disabled if he or she is able to successfully perform regular, gainful work. Regular, gainful work shall refer to regular employment in any well-known branch of the labor market. Regular, gainful work shall not apply to work that is so limited in quality, dependability or quantity that a reasonably stable market for such work does not exist.
10. Regular employment means work that is not casual and sporadic. Gainful employment means that the hiring is not charitable and the person earns wages. Rider v. Orange East Supervisory Union, et. al., Opinion No. 14-03WC (2003).
11. Based on Louise Lynch’s FCE, it appears at best that Claimant can only perform a LIGHT level job that requires the use of only one-hand. The remaining experts disagree on whether Claimant can find regular gainful employment given his barriers to employment. Even if it is possible for Claimant to find employment, it is not likely.
12. Here, both Iris Banks and Fran Plaisted have suggested possible jobs for Claimant that would accommodate his injury and other employment barriers. However, in his vocational rehabilitation assessment, Greg LeRoy disagreed that Claimant could meet the qualifications for these jobs. Mr. LeRoy offered objective support for his opinion that many of the jobs suggested were not feasible for Claimant and I find his reasoning convincing as to the jobs not discussed in his assessment as well.
13. As Workers’ Compensation Rule 11.3100 establishes, the Odd Lot Doctrine does not require that a Claimant establish his inability to perform any work whatsoever in order to qualify for permanent total disability. The focus is on his or her ability to perform “gainful work” in which a reasonably stable market can be presumed to exist.
14. The expert testimony establishes that Claimant may in fact be able to be retrained so as to perform some work at a LIGHT level and using only his right hand. However, given Claimant’s age, his experience and training in only physical jobs requiring both arms, his limited education, his restricted driving ability and his residual pain, I find that the opportunities for gainful work in the rural area in which he lives are most likely non-existent. To the contrary, Claimant appears to present the very picture of the permanently disabled worker for which the old lot doctrine was enacted.
15. Defendant argues that because of the similarity of this case to Kreuzer v. Ben & Jerry’s Homemade and Royal Sun Insurance, Opinion No. 15-03WC, the Department should require that Claimant exhaust all vocational rehabilitation services before finding permanent total disability. While I agree there are similarities to Kreuzer, I do not find the holding there to be binding here. Odd lot cases are extremely fact-specific by nature, and to generalize from one to another usually ill-advised.
16. Consequently, because the evidence supports that Claimant would not find gainful work even through vocational rehabilitation, I find him to be permanently and totally disabled.
17. The parties stipulated that Claimant’s average weekly wage was $704.49 resulting in an initial compensation rate of $469.33 at the time of the injury. He had no dependents.
18. Claimant has submitted a request for attorney’s fees totaling $17,514.00 and costs totaling $6,332.81. Defendant raises various issues as to both amounts. Defendant is correct that attorney’s fees should only be awarded for the time spent litigating the issues in the current claim, and not for time spent on Claimant’s tort action against the insurer. Nor can Claimant seek attorney’s fees for time spent on the prior litigation of this claim before this Department. Last, Defendant is correct that paralegal time spent should be billed at the appropriate paralegal rate, $60.00 per hour, rather than at the attorney’s rate. Claimant shall have 30 days from the date of this decision to submit an amended bill reflecting only time spent on the current litigation and billed a the appropriate hourly rate.
19. As for costs, I find that all of the charges submitted are properly connected to litigation of the current claim. However, Mr. LeRoy’s charges are not documented with sufficient capacity to determine their compliance with Workers’ Compensation Rule 40. Claimant shall have 30 days from the date of this decision to submit an amended bill from Mr. LeRoy, showing time spent and rates charged.
Based on the foregoing findings and conclusions, Defendant is hereby ordered to pay:
1. Permanent total disability commencing on December 9, 2005, the date Claimant reached end medical result;
2. Interest at the statutory rate commencing on December 22, 2005;
3. Attorney’s fees and costs in an amount to be determined based on Claimant’s supplemental filing in accordance with Conclusions of Law #s 17 & 18 above.
DATED at Montpelier, Vermont this 17th day of September 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.

R. G. v. Verizon (June 5, 2008)

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R. G. v. Verizon (June 5, 2008)
R. G. Opinion No. 22-08WC
By: Jane Gomez-Dimotsis
v. Hearing Officer
For: Patricia Moulton Powden
Verizon Commissioner
State File No. R-22786
Erin Gallivan, Esq. for Claimant
Keith Kasper, Esq. for Verizon (at hearing)
J. Christopher Callahan for Verizon/post-hearing
1. Whether the Claimant is permanently totally disabled under the Odd Lot Doctrine.
2. Claimant is requesting Attorney’s fees and costs.
Joint Medical Exhibit
Vocational Rehabilitation Reports
LeRoy Report and CV
Dr. Stephen Mann CV
Dr. Bucksbaum CV
Louise Lynch CV
Scott Miller Deposition Transcript
1. In May 2001, Claimant was an employee of Defendant within the meaning of the Vermont Worker’s Compensation Act.
2. In May 2001 Claimant suffered a personal injury by accident arising out of his employment with Defendant, where he fell off the back of his Verizon truck, injuring his left shoulder and neck.
3. In October, 2001, Claimant had surgery on his neck. Dr. Joseph Corbett performed an anterior cervical discectomy and interbody fusion at C5-6.
4. This surgery was unsuccessful.
5. In March of 2002, Dr. Corbett performed a second surgery to implant a BAK/C cage at C5-6.
6. The second surgery was also unsuccessful because the BAK/C cage was not placed correctly.
7. In September 2002, Claimant sought a second opinion from Dr. Robert J. Blanco at New England Baptist Hospital in Boston, Massachusetts.
8. Claimant had a third surgery on November 21, 2002, wherein Dr. Blanco removed the misplaced BAK/C cage and performed a corpectomy, placing a Pyramesh cage at C5-6 and C6-7 with autograft and Atlantis plate.
9. Claimant suffered ongoing pain, limitations of motion and complications as a result of the work injury and three surgeries.
10. Claimant has not been able to work at Verizon since September 2001 due to the work injury and complications.
11. Claimant began working at Verizon in 1999.
12. At Verizon, Claimant worked as a Splice Technician and in Special Services, two jobs which involved fixing phone and phone line problems out in the field. Both jobs are classified as heavy duty jobs.
13. Claimant’s average weekly wage at the time of the injury was $576.04 per week.
14. Claimant graduated from high school in 1988.
15. Claimant was honorably discharged from the Marines in 1992.
16. Claimant attended four years of college but has no degree.
17. Claimant’s prior work history is medium to heavy duty work.
18. Claimant is precluded from performing medium to heavy duty work.
1. The Claimant is 36 years old and recently married. Due to his accepted work injury and his surgeries he credibly testified he experiences the following symptoms; dysphonia (hoarseness), dysphagia (difficulty swallowing), sensations of choking, difficulty breathing, difficulty eating, dizziness, myofascial pain, cervical pain, cervical stiffness and lack of movement, chronic muscle pain in his upper back and neck, depression, migraine headaches, occasional pain in both arms and hands, burning numbness in three fingers of his left hand, soreness and burning pain in his left arm, extreme difficulty sleeping, and difficulty lifting his arms above his chest.
2. The Claimant credibly testified about how the high levels of pain and symptoms he experiences each day frustrate his efforts to accomplish tasks.
3. The Claimant has undergone numerous treatment modalities which have had little success including: multiple surgeries; massage therapy; nerve ablation; Dr. Stephen Mann’s ODMC program; numerous drug treatments; counseling for depression and various medications for depression. In September of 2007, the Claimant underwent ulnar decompression surgery to alleviate burning and numbness in some fingers on his left hand and upper left side.
4. This claim is for permanent total benefits. There are only a few issues disputed by the Defendant in this claim regarding the critical issues. The first concerns whether the Claimant can work on a part-time basis intermittently and whether this would meet the criteria for gainful employment. The second issue is whether vocational rehabilitation efforts have been exhausted and third, whether the Claimant is at medical end result for his latest surgery and his depression. All of these issues relate to whether or not the Claimant can be found to be permanently totally disabled.
5. Regarding the first issue of whether the Claimant can work on a part-time basis, Dr. Stephen Mann, a psychologist, performed an Independent Evaluation on the Claimant as well as treating him for approximately two years. His testimony was that the defendant may be able to do some work on a part-time basis if the employer is remarkably accommodating, the work is intermittent and the employer is benevolent and understanding.
6. Dr. Mark Bucksbaum, a certified independent medical examiner who has testified many times at workers’ compensation hearings conducted two Independent Medical Evaluations on the Claimant as well as treating him for several years. He testified that the Claimant can only work in a highly structured environment where they don’t care about the quality or reliability of the work. His other suggestion was for the Claimant to volunteer somewhere but only when he felt able to do so. Dr. Bucksbaum’s opinion was based both on the fact that it is medically unsafe for the Claimant to engage in either sedentary or light work and that the Claimant is only able to work intermittently because of his pain. It is unsafe for the Claimant to work because the ulnar decompression surgery on his upper extremity left the nerve unprotected from further injury. Dr. Bucksbaum is found to have credibly determined that the Claimant was at medical end result for his injuries on June 15, 2005.
7. The Claimant testified regarding the incredible amount of pain he endures on a daily basis. He does try to do basic work around the home. However, this involves frequently stopping to rest or to lie down. The Claimant wants to work and his wife confirmed that fact in her credible testimony.
8. Ms. Louise Lynch, a physical therapist and functional capacity evaluator, conducted a three day Functional Capacity Evaluation (FCE) on the Claimant. She found he could work an eight hour day but that there might be entire months when he could not work at all. Louise Lynch concluded the Claimant could not work on consecutive days even on a part-time work schedule and that there would always be days when his symptoms would prevent him from having any work capacity. She did find, however, that the Claimant had a light work capacity with many restrictions when he was able to work.
9. The Claimant also attended a half day FCE with Ginny Woods, a physical therapist with Mount Ascutney’s Ergo Science Division on May 1, 2007. The results were different than those of Louise Lynch’s conclusions. Ms. Woods concluded that the Claimant had the capacity to perform light work for an eight hour day, forty hours per week. The major difference in these opinions is the length of time the functional capacity test lasted. Ginny Woods’ evaluation was only for a half day. Louise Lynch tested the Claimant over a three day period and observed the Claimant’s abilities decline each day. The testing was also much more comprehensive. There is no dispute that the Claimant is able to sustain some level of activity for a short number of hours. However, medical experts have opined that the Claimant could not sustain a work level for consecutive days even on a part-time basis.
10. Claimant worked with vocational rehabilitation counselor William O’Neil from early in 2004 through late 2005. An Individual Written Rehabilitation Plan was developed in September of 2004. The goal was to train the Claimant to be a property or estate manager. The Claimant complied with the requirements of the plan and took courses in both Master Composting and Master Gardening. However, he was unable to obtain or sustain suitable employment, despite the efforts of Mr. O’Neil and the benevolent employer for whom he worked. Even though the employer allowed the Claimant to work on his own schedule and do only what he was capable of doing, the employer concluded that the Claimant was too unreliable and inconsistent due to his work related injuries which resulted in severe limitations regarding his ability to function. Mr. O’Neil suspended vocational rehabilitation efforts because it was apparent that the Claimant was not going to find suitable work.
11. Claimant testified credibly about his inability to sustain any work, even sedentary work, due to his pain. Greg LeRoy, a vocational expert, testified that the Claimant would be unable to be sufficiently productive even in a home based environment. He found he was not capable of gainful employment.
12. The second issue concerns whether the Claimant is at medical end for his surgeries and depression. Defendant argues that Claimant is not at medical end result both for his latest surgery and depression. Claimant is still healing from his last surgery for the ulnar nerve decompression surgery. However, Dr. Bucksbaum credibly testified that the outcome of the ulnar decompression surgery will not change the Claimant’s medical restrictions for his ability to function because the surgery moved the nerve from its naturally protected area and left it unprotected from further injury. It is not disputed that Claimant is at medical end result for his neck injury which is the source of most of his pain.
13. Claimant was found to be depressed by Dr. Stephen Mann and others. He is depressed and has considered suicide in the past. He is not currently treated for his depression. However, Dr. Mann treated the Claimant for over two years for depression and the Claimant has tried various anti-depressant medications without result. Both Dr. Mann and Dr. Bucksbaum have found that Claimant’s depression is caused by his pain and that he will continue to have pain. Both doctors do advocate for continued treatment of Claimant’s depression to prevent any future suicidal ideation. However, both Dr. Bucksbaum and Dr. Mann testified that although further medical treatment might improve the Claimant’s depression, no significant improvement is expected.
14. Prior to Meub Associates, Inc. being involved in this case as the Claimant’s attorneys, the law firm of Ryan, Smith and Carbine was handling the case. There is an agreement between these firms to split any attorney fees and costs if the Claimant prevails. The insurance adjuster should be aware of this agreement and not distribute fees without a full understanding of this agreement.
15. The Claimant’s reasonable attorneys’ fees were $90.00 per hour for a total of 427.15 attorney hours. The Claimant also expended 165.9 paralegal hours at $60.00 per hour. Costs were amended to $28,646.41 in response to objections from the Insurer’s Counsel. The fees are to be divided between the firms of Meub Associates, Inc. and Ryan Smith and Carbine pro rata according to time spent by each firm. (Meub Associates, Inc. spent 370.55 hours of attorney time and all paralegal hours and Ryan, Smith and Carbine spent 56.6 hours of attorney time on the instant case.)
1. The Department finds the Claimant cannot presently work at gainful employment due to his work related injury based on the credible testimony of the Claimant and his witnesses. The Defendant did not present any defense witnesses but did lengthy cross-examinations on Claimant’s witnesses including the Claimant, himself. 21 V.S.A. § 644(b). WC Rule 11.3100 (Odd Lot Doctrine.) The Odd Lot Doctrine recognizes that if Claimant’s physical condition rises to the level where he or she cannot work at “gainful” employment but does not fit in one of the enumerated categories in the statute, then he or she may still be eligible for permanent total disability. Regular gainful employment shall refer to regular employment in any well-known branch of the labor market. This rule requires, inter alia, consideration of the Claimant’s age, experience, training, education, occupation, and mental capacity, physical and mental limitations and/or pain.
2. The Odd Lot Doctrine applies if a worker cannot return to gainful employment without suffering substantial pain rendering him unable to perform any service for which a reasonably dependable market exists. To qualify as substantial, the pain accompanying routine tasks must be serious, intense and severe. Hill v. L.J. Ernest, Inc., 568 So. 2nd 146, 152 (1990). The Department finds in the instant case, based on credible testimony presented, the Claimant’s pain is so severe he cannot perform any gainful employment even on a part-time basis and his treating physician has credibly opined that such work may be injurious to his future health.
3. The Department finds credible experts agree the Claimant is unable to do work that is not casual, sporadic or charitable which means that he cannot engage in gainful and regular employment. Rider v. Orange East Supervisory Union, Op. No. 14-03WC (2003); Larson’s, Desk Edition § 83.01 (2007). Regular, gainful employment shall not apply to work that is so limited in quality, dependability or quantity that a reasonably stable market for such work does not exist. See WC Rule 11.3100. Thus, the Department finds that the Claimant is unable to perform regular, gainful employment due to his pain and the fact that such work would be harmful to his condition since his ulnar decompression surgery left his nerve more exposed.
4. The Department finds the medical treating doctors to be more credible and knowledgeable about Claimant’s condition than those persons who conducted the functional capacity examinations.
5. The Department also finds credible the experts who agree that vocational rehabilitation was unsuccessful and will not be successful until or unless something new is found to relieve the Claimant of his pain.
6. The Department finds the Claimant is, under the definitions under the Workers’ Compensation statutes and rules, at medical end result for his psychological depression and his medical status based on expert testimony. Based on credible expert testimony, the Department finds any improvement to Claimant’s upper extremity through the healing process will not alter the fact that Claimant is permanently and totally disabled. This is based on the credible testimony of Claimant’s expert, Dr. Bucksbaum. The Claimant’s depression is related to his pain and has not improved after treatment. See Worker’s Compensation Rule 2.1200 (Claimant is at medical end result (MER) if significant improvement is not expected regardless of treatment.) The experts’ credible testimony is that even though the Claimant could benefit from treating his depression, the pain he feels will prevent significant improvement.
7. Claimant has met his burden of establishing that he is permanently and totally disabled under Vermont case law. Egbert v. Book Press, 144 Vt. 367 (1984). Based on the credible testimony of Dr. Bucksbaum the Department finds that the Claimant was at medical end result as of June 15, 2005.
The claim should be adjusted as follows;
1. Claimant should receive permanent total disability benefits backdated to June 15, 2005 including statutory interest. The first 330 weeks plus interest will be awarded in a lump sum.
2. The Claimant’s reasonable attorneys’ fees should be paid and were $90.00 per hour for a total of 427.15 attorney hours. The Claimant also expended 165.9 paralegal hours at $60.00 per hour. Costs were amended to $28,646.41. The fees are to be divided between the firms of Meub Associates, Inc. and Ryan Smith and Carbine pro rata according to time spent by each firm. (Meub Associates, Inc. spent 370.55 hours of attorney time and had all paralegal fees and Ryan, Smith and Carbine spent 56.6 hours of attorney time on the instant case.)
DATED at Montpelier, Vermont this 5th day of June 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.

R. C. V. Mack Molding, Inc. (July 3, 2007)

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R. C. V. Mack Molding, Inc. (July 3, 2007)
R. C. Opinion No. 16-07WC
v. By: Rebecca L. Smith
Staff Attorney
Mack Molding, Inc. For: Patricia Moulton Powden
State File No. M-25723
Hearing held in Montpelier, Vermont on October 24 and 25, 2006
Record closed on November 29, 2006
Stephen Robinson, Esq. and Jennifer Ciarlo Pacholek, Esq. for the Claimant
Keith J. Kasper, Esq. and David Berman, Esq. for Defendant Mack Molding, Inc.
Is the Claimant permanently and totally disabled as a consequence of his work injury of November 30, 1998?
Joint Exhibits
Join Exhibit I: Medical Records on CD
Joint Exhibit II: Additional Medical Records
Joint Exhibit III: Stipulation
Claimant’s Exhibits
Claimant’s Exhibit 1: Resume of George Fotinopoulos
Claimant’s Exhibit 2: March 25, 2005 report of Daisy Wojewoda
Claimant’s Exhibit 3: Resume of Louise Lynch
Claimant’s Exhibit 4: Discovery Deposition of Victor Gennaro, M.D., January 13, 2004
Claimant’s Exhibit 5: Vocational Assessment by John May, May 12, 2006
Defendant’s Exhibits:
Defendant’s Exhibit A: Video surveillance of Claimant December 12, 2005 and January 10 and 12, 2006
Defendant’s Exhibit B: Supplemental report of John May
Defendant’s Exhibit C: C.V. of John May
Notice is taken of all forms and reports filed and prior formal opinions and orders issued in this claim, and all stipulated facts are adopted.
Permanent total disability benefits under 21 V.S.A. §644 (b).
Attorney’s fees and costs under 21 V.S.A. §678.
1. On November 30, 1998, the Claimant was an employee of the Defendant, Mack Molding, Inc. within the meaning of the Vermont Workers’ Compensation Act (the Act).
2. On November 30, 1998, Mack Molding, Inc. was the Claimant’s employer pursuant to the Act.
3. On November 30, 1998, the Claimant suffered a compensable injury to his back arising out of and in the course of his employment with the Defendant.
4. The Claimant is a native Bosnian, 36 years old at the time of the hearing, for whom English is a second language. He testified at the hearing with the occasional assistance of a translator. The Claimant graduated from high school in Bosnia and has worked at a variety of jobs in retail, food service, manufacturing and truck driving. He currently resides in Hooksett, New Hampshire, near Manchester.
5. On November 30, 1998, while employed by Mack Molding of Cavendish, Vermont, the Claimant suffered a herniated disc and facet joint injury at the L4-5 level of his spine, and strained lower lumbar muscles. Dr. Rudolph performed an L4-5 disc excision with left L-5 nerve root decompression on August 26, 1999. Following this surgery the Claimant was released to work, initially part time and then on a full time basis with activity restrictions. He first returned to Mack Molding, but in May 2000 obtained a position at Pike Industries, Inc. in New Hampshire.
6. Thomas J. Kleeman, M.D., an orthopedic surgeon with the New Hampshire Spine Institute, placed the Claimant at Medical End Result on November 8, 2000 and assessed 10% permanent impairment.
7. On July 31, 2001, while at Pike Industries, the Claimant suffered another incident with his lower back. He improved somewhat with physical therapy and, despite ongoing complaints of left leg and lower back pain, resumed working and continued working under additional restrictions until he was laid of in early January 2002.
8. In the fall of 2001, Dr. Kleeman offered L4-5 fusion surgery, which the Claimant had initially declined on the basis of Dr. Rudolph’s opinion that he first attempt conservative treatment. After his layoff in early January 2002, the Claimant elected to proceed with the second surgery and underwent L4-5 fusion performed by Dr. Kleeman on January 24, 2002.
9. The New Hampshire Department of Labor found that the need for the 2002 surgery was not due to the Claimant’s employment at Pike Industries (Case Number 37208 July 3, 2002). This Department and the Vermont Supreme Court concurred, finding Mack Molding liable for a recurrence of the 1998 injury. See Opinion No. 16-04WC (April 9, 2004) and 179 Vt. 602 (January 13, 2006). This finding was based on the similarity of MRI studies before and after July 31, 2001, the facts that the Claimant still had pain and lifting restrictions and wore a back brace prior to July 31, 2001, and several medical opinions that the Claimant returned to “baseline” following a brief flare-up of symptoms on July 31st.
10. The Claimant’s average weekly wage at the time of the recurrence of his injury was $885.92, resulting in an initial compensation rate of $590.92.
11. Following the 2002 surgery and physical therapy, Dr. Kleeman released the Claimant to part time work with restrictions on August 6, 2002. Dr. Kleeman noted at that time that the Claimant was working out three times per week and that his pain and functioning were better than before the surgery. Jason Butters, PTA, assessed the Claimant at a light physical demand classification with occasional lifting of 20-25 pounds and frequent lifting of 10-12 pounds.
12. Shortly after the surgery, the Claimant complained of pain and discomfort initially radiating into his right leg, and later into his left leg as well, in addition to lower back pain. In his testimony at hearing and in his reports to at least one medical provider, the Claimant equated the pain he experienced after the surgery to the pain he felt prior to the surgery. N.H. Spine Institute physical therapy note of May 8, 2002.
13. Dr. Kleeman could not find an objective cause for the Claimant’s subjective pain complaints. He placed the Claimant at medical end result in June 2004 and assessed a cumulative 22% whole person impairment to the spine.
14. The Claimant’s temporary total disability benefits were discontinued in July 2004 on the basis that he had reached medical end result. The Claimant has been paid permanent partial disability benefits.
15. Richard P. Hockman, M.D. is an orthopedic surgeon with New Hampshire Orthopaedic Surgery, P.A. In January 2004, a lumbar myelogram recommended by Dr. Hockman showed no herniation at L4-5, but did show a disc bulge one level lower at L5-S1, with apparent left impingement and probable right impingement. Dr. Hockman discussed the possibility of discectomy and fusion at L5-S1 if pain symptoms persisted. The Claimant has not undergone this surgery and is reluctant to do so because of the limited chance of a favorable outcome.
16. The Claimant filed for permanent total disability benefits in February 2006.
17. Since the second surgery in January 2002, the Claimant has not returned to sustained employment. He testified that Pike Industries could not accommodate his restrictions; on three occasions during 2003-2004 he worked briefly at a cleaning business, at painting and at installing glass, but gave up each attempt within a week or two due to pain.
18. The Claimant cares for his two children, aged nine and four at the time of hearing, on what he describes as a full time basis. In addition, he does housework, cooks, and shops, including driving. He describes that he occasionally lifts his daughter, who weighs 30 pounds, but also gets help from neighbors. Surveillance video, totaling less than half an hour over three days, shows the Claimant walking, bending at the waist, assisting a child in and out of a car, driving, entering and exiting stores and carrying single shopping bags.
19. The Claimant testified that he works out at a gym two or three times a week. His workout includes one or two circuits of 10-15 repetitions lifting 15-30 pounds, depending on how he feels. He testified that he “feels better” after he works out.
20. Active vocational rehabilitation services did not commence for this Claimant until late in 2004.
Dr. Kleeman
21. Dr. Kleeman followed the Claimant for 18 months after the 2002 surgery. Initially, the Claimant reported that he was doing much better in that left leg numbness and pain were gone, but reported right lower back pain radiating into the leg. At six weeks post-op, Dr. Kleeman noted that the Claimant had done very little at home other than sitting and that needed to get mobilized and strengthened. At three months post-op, Dr. Kleeman released the Claimant for part time work with a 25-pound maximum lifting restriction. At four months post-op, the Claimant was unhappy because of his pain symptoms, but Dr. Kleeman could find no significant impingement by CT scan. At six months, Claimant reported that his back pain, leg pain and function were all better than before treatment. Dr. Kleeman released him for full-time work with a 25-pound lifting restriction. At nine months post-op, Claimant was “somewhat satisfied” that his back and leg pain were better, but still had symptoms of right leg pain. At twelve months, after additional imaging, Dr. Kleeman reported that CT scan showed a solid fusion and that MRI showed very mild degeneration and slightly asymmetrical bulge to the left at L5-S1. Dr. Kleeman did not see any evidence of nerve impingement on the right to account for the Claimant’s symptoms. In August 2003, Dr. Kleeman noted continued complaints of back and leg pain despite solid fusion. He had no solution because he found no evidence of impingement. He noted that the Claimant “looks much better than he says he feels,” and advised that the Claimant do the best he can to get back to work.
22. In a June 28, 2004 letter to the carrier’s adjuster, Dr. Kleeman stated, “he remains symptomatic despite evidence of a solid fusion and without objective findings to correlate his symptoms.” He noted a 25 pound maximum lifting and restrictions on positioning, found medical end result and assessed 22% impairment.
Dr. Hockman
23. Richard P. Hockman, M.D. is an orthopedic surgeon in Manchester, N.H. who first saw the Claimant in December 2003, on referral from his primary care provider. Dr. Hockman noted minimal back pain, persistent right leg pain since the 2002 surgery, and “some” left leg pain. Upon review of an MRI, Dr. Hockman felt the fusion was solid but was concerned that one of the pedicle screws on the right side might be partly in the neural foramen and impinging the nerve root on that side. He ordered a CT/myelogram to determine placement of the pedicle screws. A January 15, 2004 lumbar CT myelogram found all pedicle screws well-seated, but found a small broad based disc protrusion at L5-S1, causing a mild mass effect on the left S1 and probably to a lesser degree the right S1 nerve root.
24. On January 26, 2004 Dr. Hockman reviewed the myelogram results with the Claimant. He noted a probable herniated disk at the untreated L5-S1 level, pressing on the left S1 nerve root with a little bit of mass effect at the right nerve root. If the Claimant found his function too impeded by pain, Dr. Hockman recommended a discogram to verify that this is the symptomatic level. If verified, he suggested discectomy and fusion at L5-S1, with an extension of the fusion down from L4-5.
25. Dr. Hockman’s final medical note in the record is dated April 6, 2005. The note of that visit records complaints of “a little pain in the right leg and the Achilles tendon area,” near-constant tingling and burning in the left leg and numbness in the lateral three toes of the left foot upon standing longer than 20 minutes. Dr. Hockman found pain in the distribution of S1 root on the left side consistent with the CT myelogram findings. Dr. Hockman found full range of motion in the back, negative straight leg raise and equal reflexes at the knees and ankles. Dr. Hockman recommended that surgery not be considered without the presence of a positive discogram, which the claimant had not determined to undergo. No further appointments were to be scheduled until the Claimant decided about having the discogram.
Dr. Gennaro
26. Victor Gennaro, D.O. is an orthopedic surgeon who first performed a medical records review and then examined the Claimant for the Defendant in November 2003 in the context of determining liability for the 2002 surgery. In deposition taken January 13, 2004, without having reviewed any additional medical records, Dr. Gennaro opined that the Claimant at that time had no work capacity, or a capacity below sedentary.
27. On February 16, 2006, he performed another examination of the Claimant for the Defendant, including review of new medical notes, Louise Lynch’s FCE report, the surveillance videos and a January 5, 2004 MRI. Dr. Gennaro noted that the lumbar fusion appeared appropriate and well healed with no evidence of non-union and that a mild broad based disc bulge at L5-S1 did not significantly indent the thecal sac or exit a nerve root. He surmised that the Claimant’s functional level was probably higher than the Claimant alleged because the radicular complaints were not specifically verified by diagnostic studies or physical examination. He speculated that the Claimant had, at a minimum, a sedentary full-time work capacity given the ability to change positions, stand and walk.
28. On July 3, 2006, after reviewing Timm DuMoulin’s FCE report, Dr. Gennaro opined that Mr. DuMoulin’s findings were consistent with his own. Dr. Gennaro modified his opinion to say that Claimant’s sedentary work capacity was probably part-time initially, but suggested benefit from a rehabilitation plan emphasizing work hardening. Dr. Gennaro did not find sufficient evidence to support total disability.
29. Dr. Gennaro was scheduled to testify at the hearing but became unavailable on short notice. The Claimant requested that the record reflect that Dr. Gennaro could not be cross examined about his 2006 opinion, and offered Dr. Gennaro’s 2004 deposition transcript into evidence. The weight given Dr. Gennaro’s opinion of work capacity reflects the lack of cross-examination regarding the basis for the changes in his opinion.
Functional Capacity Examinations
Louise Lynch
30. Louise Lynch, P.T. is a licensed physical therapist who has performed functional capacity examinations (FCEs) within the Vermont workers’ compensation system since 1989, at a current rate of about ten per year. She performed an FCE of the Claimant on June 2 and 3, 2005 at the request of vocational rehabilitation counselor George Fotinopoulos. Ms. Lynch prefers to perform an FCE over a two-day period, and did so in this instance, in order to better gauge the effects of the first day’s testing and the examinee’s ability to sustain activities. The June 2005 FCE assessed the Claimant’s capacities to lift, carry, push and pull, sit, stand, climb stairs, balance, twist, bend and stoop, forward reach, grasp, pinch, and his fine finger dexterity.
31. Ms. Lynch concluded that the Claimant could perform at a light physical strength level with walking as his primary job function. She opined that he could sustain this type of employment activity for up to 4-6 hours per day on 2-4 days per week if he did not work more than two days in a row. However, his productivity would be limited by pain and the need to take frequent walks and stretch breaks unless these were incorporated into his work activity. He would be best suited for work that requires walking and moving with intermittent rest breaks to sit. The Claimant should be able to control his symptoms if not required to sustain static positions, handle materials, bend or twist. She noted good manual dexterity and sufficient upper extremity strength to perform bench tasks 1-2 hours at a time with sit/stand options.
32. However, Ms. Lynch also concluded that the Claimant does not have a work capacity according to the Dictionary of Occupational Titles/Department of Labor guidelines for regular gainful employment on an uninterrupted basis for full-time work.
Timm K. DuMoulin
33. Timm K. DuMoulin is a licensed physical therapist who has performed FCEs according to the Blankenship forensic FCE system since the 1980s. He currently performs an average of two FCEs per month. Mr. DuMoulin performed an FCE of the Claimant on March 7, 2006 at the request of the Claimant’s primary care doctor. The evaluation addressed lifting in various positions, carrying, bending, squatting, kneeling, stair climbing, crawling, sitting, standing, walking, forward and overhead reaching, balancing, arm, leg and fine hand control. Mr. DuMoulin observed that the Claimant gave reports of high pain levels, but felt that the Claimant’s actions did not jibe with these reports, leading him to conclude that the Claimant was not giving full effort. Mr. DuMoulin assessed a light-medium strength level and opined that the Claimant was able to work at a light-medium physical demand level for four hours per day, five days per week, with frequent position changes while sitting or standing, and infrequent lifting, twisting or bending.
34. Mr. DuMoulin posited that the Claimant might benefit from a rehabilitation program emphasizing strength, endurance and proper body mechanics with the goal to increase the Claimant’s workday to 8 hours at the light-medium physical demand level.
Vocational Rehabilitation
George Fotinopoulos
35. George Fotinopoulos, M.A., is a vocational rehabilitation counselor certified with the State of Vermont, who has worked primarily as a VR counselor for some six years. Mr. Fotinopoulos performed an entitlement assessment of the Claimant on December 12, 2004 and determined that the Claimant was entitled to VR services because he was unable to return to suitable employment using his previous training or experience. He identified the Claimant’s work capacity, limited transferable skills, English language skills and extended time out of the workforce as negatively impacting the Claimant’s return to suitable and gainful employment. Mr. Fotinopoulos then provided VR services to the Claimant until closing the file on January 4, 2006.
36. Mr. Fotinopoulos had not previously worked in the Manchester, N.H. area or placed anyone in employment there in the past. However, Mr. Fotinopoulos noted that there were many job opportunities in the greater Manchester, N.H. area for someone with a meaningful full time capacity.
37. Mr. Fotinopoulos performed a manual transferable skills analysis, in which he considered the skills required for jobs the Claimant had done in the past 15 years and the Claimant’s current physical limitations. Although two of the Claimant’s prior jobs, waiter and produce clerk, are classified by the Dictionary of Occupational Titles (DOT) as requiring a light level of physical demand, Mr. Fotinopoulos concluded that the Claimant was no longer capable of performing them. He did not approach either Mack Molding or Pike Industries about possibilities of reemployment for the Claimant, nor did he consider child care work as a vocational option for the Claimant.
38. In his February 14, 2005 progress report, Mr. Fotinopoulos reported, “[the Claimant’s] pain symtomatology precludes him from having a current functional work capacity.”
39. Daisy Wojewoda, M.S., of New Hampshire Easter Seals performed a vocational evaluation of the Claimant in March 2005 on referral from Mr. Fotinopoulos. The evaluation included educational and occupational history, review of the Claimant’s disability, assessment of his functional reading skills, math abilities, mechanical reasoning, spatial perception, visual speed and accuracy, and vocational interests. Ms. Wojewoda noted difficulty in generating occupational goal recommendations because of the Claimant’s low English language skills and pain behaviors, but suggested several types of occupations as a broad starting point, including retail sales in the Bosnian community, inventory work, security guard/watchman and usher/ ticket taker. She recommended that the Claimant have a flexible schedule, possibly part-time to start, sedentary lifting demands with flexible positional demands, and strongly advised ESL training. She identified sources of English-language instruction in the Claimant’s geographical area.
40. Mr. Fotinopoulos considered the physical requirements for each of the job suggestions made by Ms. Wojewoda and rejected all of them because he did not think that the Claimant could do light duty work, although he could not recall at hearing that any medical provider had placed the Claimant at below a light duty work capacity at the time he performed his analysis.
41. On April 25, 2005 Mr. Fotinopoulos suspended VR services pending a functional capacity examination to assess work capacity before identifying a suitable return-to-work goal.
42. On June 17, 2005 Mr. Fotinopoulos reported that an FCE had been scheduled and that ESL classes were not available until August. He noted that the Claimant had traveled to Bosnia for family reasons and was expected to return in August. Consequently, development of a return-to-work plan was further deferred.
43. On August 15, 2005, Mr. Fotinopoulos reported that the FCE showed the Claimant not to have a work capacity for regular gainful employment according to the DOT. He set goals of determining the existence of a suitable return-to-work position and enrolling the Claimant in ESL classes.
44. On September 20, 2005 Mr. Fotinopoulos reported successfully enrolling the Claimant in intermediate ESL class with the Manchester Community Resource Center (MCRC), attempts to enroll him in a beginners course at another facility having been unsuccessful. Mr. Fotinopoulos accompanied the Claimant to the state employment security office for vocational exploration and job search instruction, but the single referral made, for apple picking, was not within the Claimant’s limitations. Mr. Fotinopoulos became aware that the Claimant’s computer illiteracy inhibited his ability to use state job-search services, but did not seek approval for computer training for the Claimant because “they scare him.”
45. On October 21, 2005 Mr. Fotinopoulos reported that the Claimant had a difficult time focusing and participating in his ESL classes due to pain. Further, he reported that the state vocational rehabilitation office had limited resources to assist injured workers return to work, such that it outsourced job search assistance to outside vendors.
46. On November 18, 2005 Mr. Fotinopoulos reported that the Claimant’s ESL instructor did not believe the Claimant would benefit from ESL classes “as offered at the MCRC level,” and had yet to accomplish even a conversational level.
47. Ultimately, Mr. Fotinopoulos did not develop an Individual Written Rehabilitation Plan (IWRP) for the Claimant because he determined the Claimant’s disability was too severe to permit a likelihood of finding regular suitable gainful employment within the Claimant’s limitations. He did not explore part time employment opportunities because he determined that the limitations included in Ms. Lynch’s FCE made the vocational rehabilitation goal of 80% of pre-injury wages unlikely. After concluding that an IWRP was not feasible, Mr. Fotinopoulos closed the Claimant’s vocational rehabilitation file because the Claimant would not benefit from his services. Mr. Fotinopoulos does not think that the Claimant has the capacity to return to regular gainful work.
John May
48. John May, M.A. has been a Vermont-certified vocational rehabilitation counselor since 2001. He performed a forensic vocational evaluation of the Claimant’s case in May 2006. Mr. May reviewed Ms. Lynch’s and Mr. DuMoulin’s FCE reports, Dr. Gennaro’s February 16, 2006 note, and Mr. Fotinopoulos’ vocational rehabilitation reports, in addition to surveillance videos of the Claimant from December 2005 and January 2006 and this Department’s 2004 hearing decision regarding this Claimant.
49. Issues arose regarding Mr. May’s written reports. Mr. May initially distributed a report dated May 12, 2006 that contained several pages which clearly pertained to an individual other than this Claimant. When the Defendant brought this error to Mr. May’s attention, he sent out a second report, dated May 16, 2006, in which the erroneous pages were replaced with ones pertaining to this Claimant; however, in so doing, two pages pertaining to this Claimant that had been included in the May 12th report were apparently omitted. This hearing officer is satisfied that these were genuine and harmless errors and that the complete contents of Mr. May’s report may be extracted from the admitted exhibits.
50. Mr. May performed a computer-generated transferable skills analysis, adjusted for a light physical demand capacity and the Claimant’s limited English skills, that identified several hundred occupations within the DOT for which the Claimant has direct or generally transferable skills, or which are considered unskilled. The identification of a particular title does not indicate that such a job is available in all labor markets. However, Mr. May concluded that viable vocational options within the Claimant’s current level of functioning exist in his labor market. As an example, Mr. May identified the occupation of Food Assembler, for which an employment increase is anticipated in the Manchester/Bedford, N.H. labor market.
51. Mr. May rendered his professional opinion that the Claimant is capable of returning to regular gainful employment for which viable options exist in the labor market, with or without further vocational rehabilitation services. He concluded that the Claimant did not receive the full benefit from rehabilitation services, and recommended additional services such as job development and placement within the structure of an individual written rehabilitation plan that targeted specific occupations and/or employers, consideration of an individual tutor for English language skill development, and development of other job-specific skills such as computer applications. Mr. May concurred with Mr. DuMoulin’s recommendation for a conditioning program, agreeing that it might lead to increased physical abilities.
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1962). He must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the work injury and the employment. Egbert v.The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941).
2. Claimant alleges he is permanently totally disabled pursuant to 21 V.S.A. § 644 (b), the Odd Lot Doctrine, which is defined in Vermont Workers’ Compensation and Occupational Disease Rule 11.3100:
A claimant shall be permanently and totally disabled if their work injury causes a physical or mental impairment, or both, the result of which renders them unable to perform regular, gainful work. In evaluating whether or not a claimant is permanently and totally disabled, the claimant’s age, experience, training, education, occupation and mental capacity shall be considered in addition to his or her physical or mental limitations and/or pain.
Defendant contends that the Odd Lot Doctrine is not applicable, as the claim for permanent total disability relates to an injury which occurred in 1998, before the July 2000 amendment of § 664(b). If the Odd Lot Doctrine is inapplicable, permanent total disability would require that the Claimant meet the enumeration of 21 V.S.A. §644(a).
3. The Department has traditionally held that the odd-lot doctrine does not apply when both the date of injury and the date of medical end result predate the amendment to §644(b). See, e.g. Sargent v. Town of Randolph Fire Department, Opinion No. 37-02WC (November 5, 2002); Bostwick v. Mt. Anthony Union High School, Opinion No. 05-02WC (February 6, 2002); Courchaine v. Dubois Construction, 38-03WC (September 5, 2003). Here, although the Claimant’s initial injury occurred in 1998, he suffered a recurrence of that injury in 2001 and reached medical end result for that recurrence in 2002. Further, if Longe v. Boise Cascade, 171 Vt. 214 (2000) were interpreted to mean that a claim for permanent total disability is distinct and separate, the operative date would be the date that the PTD claim was made, in 2006. Therefore, this claim is analyzed under the odd-lot doctrine.
4. In all claims for permanent total disability under the Odd-Lot Doctrine, a Functional Capacity Evaluation (FCE) should be performed to evaluate claimant’s physical capabilities and a vocational assessment should be conducted and should conclude that the claimant is not reasonably expected to be able to return to regular, gainful employment. Rule 11.3100. A claimant shall not be permanently totally disabled if he or she is able to successfully perform regular, gainful work. Regular, gainful work shall refer to regular employment in any well-known branch of the labor market. Regular, gainful work shall not apply to work that is so limited in quality, dependability or quantity that a reasonably stable market for such work does not exist.
5. A claimant must have “no reasonable prospect for finding regular employment.” 21 V.S.A. § 645. Regular and gainful work means work that is not casual or sporadic, work that is not charitable, where one earns wages. See Rider v. Orange East Supervisory Union, et. al. Op No. 14-03 (2003).
6. The evidence does not demonstrate that the Claimant is permanently and totally disabled as a result of his 1998 work injury. His treating surgeon has released him for full time work with lifting restrictions consistent with the capabilities assessed by both FCEs, and comparable to the weight the Claimant lifts at the gym. Although Dr. Gennaro assessed no work capacity in 2004, he did not have the benefit of current medical information at that time; in 2006, when provided with updated information, Dr. Gennaro revised his opinion. Dr. Hockman has not commented on the Claimant’s work capacity. Mr. May opined that viable vocational options within the Claimant’s current level of functioning exist in his labor market, and identified one of them.
7. Even PT Lynch assessed a part-time capacity involving light material handling. Her opinion that the Claimant does not have a work capacity is based on his present inability to sustain full time employment. However, § 644 does not require that a claimant have a full time work capacity to be capable of regular gainful employment. See D.A. v. Central Vermont Hospital, Opinion No. 20-06WC (April 21, 2006).
8. PT Lynch finds the Claimant’s pain as his primary limiting factor. Subjective complaints of pain, when coupled with deficient objective physical evidence, cannot serve as a foundation for a permanent, total disability compensation award. Severy v. The Brattleboro Retreat, Op. No. 37-99 WC (1999). Although Dr. Hockman speculates that the disc bulge identified at L5-S1 is the probable source of Claimant’s pain symptoms, this has not been verified by discogram.
9. Although the Claimant has been assessed as having limited English skills, he participated in the formal hearing with minimal assistance, and viable options for improving these skills, such as enrollment in a beginning ESL class or private tutoring, have not been explored. The Claimant’s age is not an impediment to his employment. He has previously succeeded in finding work and working while enduring pain at levels he describes as comparable to what he presently experiences, and has sustained “full time” child care and housework activities for years. His work experience provides skills for which regular employment exists in the labor market.
10. I am persuaded by the collective testimony of Mr. May and Mr. DuMoulin that this Claimant has both a current capacity for regular, gainful—albeit part time—work and a prospect for improved circumstances with the combination of a comprehensive rehabilitation program and vigorous provision of vocational rehabilitation services including improvement of his English language skills.
11. The Claimant did not timely receive active vocational rehabilitation services, and the services that he did receive were not all that is reasonably necessary to restore the Claimant to his best opportunity for suitable employment. Because I find that adequate vocational rehabilitation services have not as yet been furnished, the Defendant is directed to provide them.
1. Claimant’s claim for permanent total disability benefits is DENIED.
2. Because the Claimant has not prevailed, he is not entitled to an award of attorney’s fees or costs under 21 V.S.A. § 678.
3. The Defendant is directed to reopen vocational rehabilitation services to the Claimant.
DATED at Montpelier, Vermont this 3rd day of July 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. §§ 670, 672.

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