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Catherine Heller v. Bast & Rood Architects (May 9, 2013)

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Catherine Heller v. Bast & Rood Architects (May 9, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Catherine Heller Opinion No. 14-13WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Bast & Rood Architects
For: Anne M. Noonan
Commissioner
State File No. T-12409
OPINION AND ORDER
Hearing held in Montpelier, Vermont on March 11, 2013
Record closed on April 11, 2013
APPEARANCES:
Frank Talbott, Esq., for Claimant
Robin Ober Cooley, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant entitled to additional permanent partial disability benefits referable to
her January 2003 compensable work injury?
2. If yes, what is the extent of the additional permanent impairment she has
suffered?
3. Is Claimant entitled to reimbursement of Dr. Harvie’s evaluation charges as a
medical expense under 21 V.S.A. §640(a)?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit IA: Medical records
Joint Exhibit II: Medical records
Claimant’s Exhibit 2: Curriculum vitae, Keith Harvie, D.O.
Claimant’s Exhibit 3: Independent medical evaluation invoice, 2/28/2012
Defendant’s Exhibit A: Curriculum vitae, Thomas Grace, M.D.
2
CLAIM:
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Medical benefits pursuant to 21 V.S.A. §640(a)
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was
her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the
Department’s file relating to this claim. Judicial notice also is taken of the
commissioner’s prior decision in Heller v. Bast & Rood Architects, Opinion No. 32-
10WC (October 5, 2010), aff’d, Vermont Supreme Court Docket No. 2010-405 (May
Term, 2011).
Claimant’s January 2003 Work Injury
3. Claimant worked for Defendant’s architectural firm. On January 2, 2003 she slipped and
fell on the icy driveway while maneuvering to get into her car at the end of her workday.
In her First Report of Injury, Claimant described a backwards fall that “slammed” her
onto the ice, causing injury to her back, neck, shoulders and hips.
4. Although it disputed the causal relationship between Claimant’s fall and some of her
subsequent complaints, Defendant accepted as compensable those referable to her lower
back. It did so notwithstanding that she had a prior history of treatment for lower back
pain following motor vehicle accidents in 1986 and 2001. In fact, x-ray studies
undertaken some years before her 2003 work injury documented degenerative changes
not only in her lumbar spine, but in her cervical and thoracic spine as well.
5. In 2010 the parties litigated the compensability of Claimant’s other complaints, which
included pain in her cervical and thoracic spine, her knees and her hips. Following a
formal hearing, the Commissioner determined that only the bursitis in Claimant’s left hip
was causally related to the 2003 fall; her other complaints were all referable to
preexisting injuries or conditions.
6. The parties also litigated the question whether proposed prolotherapy injections
constituted reasonable treatment for Claimant’s lower back injury. The Commissioner
determined that they were.
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Claimant’s 2004 and 2005 Permanency Ratings
7. Claimant was first determined to have reached an end medical result for her compensable
lower back injury in June 2004, following an independent medical examination with Dr.
Grace, a board certified orthopedic surgeon retained by Defendant for this purpose.1 Dr.
Grace diagnosed Claimant with grade 1 spondylolisthesis, a degenerative condition, at
the L4-5 level of her lumbar spine. Based solely on this diagnosis, in accordance with the
AMA Guides to the Evaluation of Permanent Impairment (5th ed.), he determined that
Claimant had suffered a seven percent whole person permanent impairment referable to
her 2003 work injury. Notably, during this examination Claimant demonstrated 70
degrees of lumbar spine flexion (forward bending) and 25 degrees of extension
(backwards bending). According to the AMA Guides, these measurements were
insufficient to qualify her for any additional impairment based on reduced range of
motion.
8. Dr. Grace next examined Claimant in August 2005. This time he calculated her
permanent impairment at ten percent whole person. The increase was attributable to two
factors. First, consistent with another independent medical examiner’s determination, Dr.
Grace added one percent impairment for documented degenerative disc disease at L2-3,
which he concluded was referable to Claimant’s work injury along with the degeneration
he previously had rated at L4-5. Second, because Claimant now was demonstrating only
40 degrees of lumbar flexion (down from 70 degrees in 2004), under the AMA Guides she
now qualified for an additional two percent impairment on account of her reduced range
of motion, which Dr. Grace determined was attributable to the work injury as well.
9. In June 2007 the Department approved the parties’ Agreement for Permanent Partial
Disability Compensation (Form 22), by the terms of which Defendant agreed to pay
permanency benefits in accordance with Dr. Grace’s August 2005 impairment rating. In
the Agreement, the parties described the compensable injury as “degenerative disc
disease and related symptoms.”
Claimant’s More Recent Treatment and Permanency Ratings
10. Following the Commissioner’s determination in her favor as to the reasonableness of
prolotherapy injections, Finding of Fact No. 6 supra, in 2010 Claimant resumed
treatment for her compensable lower back condition. Between January and April 2011
she underwent both lumbar epidural and facet injections, the purpose of which was
concurrently diagnostic – to help differentiate her spinal pathology from her hip
pathology – and therapeutic. In June and July 2011 she underwent prolotherapy
injections, which seemed to relieve some of the muscular dysfunction in her lower back,
at least for a time. For the most part, however, her pain persisted.
11. In February 2012 Claimant presented to Dr. Harvie, a board certified osteopath and
orthopedic surgeon, for evaluation. Claimant testified that her purpose for doing so was
1 Dr. Grace first evaluated Claimant in January 2004, but determined that she was not yet at end medical result. For
that reason, he estimated but did not conclusively rate her permanent impairment at that time.
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to gain a better understanding of how the dysfunction in her lower back was evolving and
to learn whether a surgical solution might ultimately become necessary. I find that it was
appropriate for Claimant to seek out Dr. Harvie for this purpose, and also that it was
necessary for him both to review her voluminous medical file and to conduct a thorough
examination in order to provide well-reasoned and considered medical advice.
12. However, it is apparent from her attorney’s referral letter that the purpose of Dr. Harvie’s
evaluation was also to render an opinion regarding a variety of other medical and legal
issues facing Claimant, only some of which were related to her compensable lower back
condition. For example, in addition to soliciting a current permanent impairment rating
referable to her lower back, the attorney also asked Dr. Harvie to respond to questions
concerning the dysfunction in her right hip and right and left knees, all conditions that the
Commissioner previously had decided were not compensable. From reviewing Dr.
Harvie’s report and formal hearing testimony, I find that he likely devoted at least onethird
of his time to issues that were unrelated to Claimant’s compensable injury.
13. Dr. Harvie rated the extent of Claimant’s current whole person impairment referable to
her lumbar spine at 16 percent.2 As compared with the ten percent impairment that Dr.
Grace found in 2005, the difference lies in Claimant’s inability to extend backwards
during Dr. Harvie’s examination. According to the AMA Guides, this range of motion
deficit alone qualified her for an additional seven percent impairment. Using the AMA
Guides’ combined values chart, Dr. Harvie combined this impairment with (a) two
percent impairment for deficits in flexion; and (b) seven percent diagnosis-related
impairment to arrive at his final rating.
14. Dr. Grace also rendered an updated impairment rating, after conducting another
independent medical examination in April 2012.3 He too found that Claimant’s range of
motion had decreased since his 2005 exam, although the particulars were somewhat
different from Dr. Harvie’s.4 Dr. Grace’s final whole person impairment rating referable
to the lumbar spine was fifteen percent. The one-percent difference between the two
ratings relates to the manner in which the AMA Guides’ combined values chart was
applied; I find that Dr. Grace’s methodology was the correct one.
2 Dr. Harvie also rated a three percent impairment referable to Claimant’s compensable left hip condition.
Permanency benefits for this impairment were previously paid and are not currently at issue.
3 Dr. Grace also evaluated Claimant in 2007, for reasons unrelated to her lower back injury.
4 Whereas Dr. Harvie measured 45 degrees of flexion and zero degrees of extension in his evaluation, Dr. Grace
measured only 30 degrees of flexion, but ten degrees of extension. Added together, in both cases the resulting
impairment attributable to range of motion deficits is nine percent.
5
Expert Opinions as to Causation of Increased Impairment
15. Diagnostic imaging studies have documented that the degenerative disease in Claimant’s
lumbar spine has worsened in the years since Dr. Grace’s 2005 permanency evaluation.
Both Dr. Harvie and Dr. Grace attribute the increased range of motion deficits they
measured, and consequently Claimant’s increased permanent impairment, to the
progression of this condition. Where the two doctors differ is as to the role, if any, that
Claimant’s 2003 work injury has played in the process.
16. According to Dr. Harvie, a backwards fall onto the buttocks, such as the one Claimant
described, can result in significant trauma to the spine. In his opinion, that event likely
has had a “profound” impact on the rate at which the preexisting degenerative disease in
her lumbar spine has progressed.
17. Other factors likely have played a role in the progression of Claimant’s degenerative
disease as well. Dr. Harvie acknowledged that weight gain, lack of exercise and core
strength, family history and the aging process in general all have probably contributed.
He admitted that it would be impossible to quantify the extent to which any one factor
has caused the disease to accelerate. As a result, he could not break down the increase in
Claimant’s permanent impairment between 2005 and 2012 to that portion attributable to
trauma from her fall and those portions attributable to other causes.
18. Because Claimant’s condition is by its very nature a degenerative process, it likely will
continue to progress in the years to come. Notably, Dr. Harvie predicted that if she were
to lose weight she might be able to decrease the rate at which her range of motion
worsens over time. If she does not do so, her permanent impairment likely will continue
to increase.
19. Dr. Grace concurred with Dr. Harvie’s analysis as to the many factors that have
contributed to cause the degeneration in Claimant’s lumbar spine to worsen over time,
including prior injury, body mass, age and genetics. He acknowledged that the 2003 fall
likely played a role in the process. However, he disagreed that trauma from the fall
reasonably can be held accountable at this point for whatever ongoing degeneration has
occurred. Instead, he pointed to the aging phenomenon as the most likely causal factor.
With age come increased joint stiffness as well as arthritic degeneration, and therefore
decreased range of motion. In Dr. Grace’s opinion, it is difficult to speculate whether
Claimant would have exactly the same range of motion in her lumbar spine now even if
she had not suffered her 2003 work injury, but certainly she would have some additional
deficits as compared with 2005.
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CONCLUSIONS OF LAW:
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). He or she must
establish by sufficient credible evidence the character and extent of the injury as well as
the causal connection between the 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 the resulting disability, and the inference from the facts proved
must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941);
Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
Modification of Permanency Award Based on “Change in the Conditions”
2. Claimant here seeks additional permanent partial disability benefits on the grounds that
her work-related lower back injury has progressed to the point of causing further
permanent impairment as compared to what was rated and paid in 2005. Defendant
agrees that her impairment has increased, but disputes both the legal and factual basis for
any additional award of benefits.
3. Vermont statute allows for an award of workers’ compensation benefits to be modified at
any time within six years from the date of the original award “upon the ground of a
change in the conditions.” 21 V.S.A. §668; see, e.g., Estate of Richardson v. Regular
Veteran’s Association Post #514, Opinion No. 04-11WC (February 16, 2011). The
statutory language does not exclude permanency awards from modification. However,
the very nature of such awards demands that a request for modification be closely
scrutinized. A permanency award is, after all, presumed in most cases to be permanent.
4. “[An] award for permanent incapacity looks to the future to compensate for the probable
reduction in earning power that will attend [an injured worker] for the remainder of his
working life.” Orvis v. Hutchins, 123 Vt. 18, 22 (1962). Thus, while temporary
disability benefits are payable during the healing process, permanency benefits do not
become due until the injured worker “is as far restored as the permanent character of his
injuries will permit.” Id. at 24. At this point, the worker is deemed to have reached the
“end result” of his or her physical recovery period. Bishop v. Town of Barre, 140 Vt.
564, 571 (1982).
5. Notably, by delineating the point at which the injured worker has recovered as much
function as possible following a work-related injury, the concepts of end medical result
and permanency focus on the extent to which a compensable injury or condition has
improved, not the extent to which it might continue to worsen. See Workers’
Compensation Rule 2.1200 (defining “end medical result”).
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6. Recognizing that every award of permanent partial disability benefits thus encompasses
the possibility that a claimant’s condition still might continue to deteriorate even after an
end medical result is declared, the question becomes, under what circumstances should
modification on the grounds of “a change in the conditions” be granted?
7. One obvious requirement is that any change in an injured worker’s condition that results
in an increased permanent impairment must be shown to have been caused by the work
injury rather than non-work-related factors. Establishing this causal nexus is as necessary
in the context of modification as it is in the context of an initial award. Egbert, supra;
see, e.g., Marshall v. State of Vermont, Vermont State Hospital, Opinion No. 01-11WC
(January 25, 2011).
8. The interrelationship between end medical result and permanent partial disability dictates
a second requirement as well. For the same reason that a claimant cannot be awarded
permanency benefits initially until curative treatment has concluded and the condition has
stabilized, so too a prior award should not be modified unless additional curative
treatment has been undertaken and an end medical result reached. Otherwise, the
“permanent” aspect of the award will be lost, and piecemeal recoveries might result.
9. Considering the second requirement first, I conclude in this claim that the treatment
Claimant has undergone since 2010, including evaluations and referrals related to the
various injections referred to in Finding of Fact No. 10 supra, has been curative rather
than palliative in nature. As the credible medical evidence established, the purpose of
these treatments was both diagnostic and therapeutic. Prior decisions have routinely held
likewise. See, e.g., Luff v. Rent Way, Opinion No. 07-10WC (February 16, 2010); Abare
v. Ben & Jerry’s, Opinion No. 44-08WC (November 5, 2008).
10. As to the first requirement – the causal relationship between Claimant’s 2003 work injury
and her worsened permanent impairment – the parties presented conflicting expert
testimony. Where expert medical opinions are conflicting, the Commissioner
traditionally uses a five-part test to determine which expert’s opinion is the most
persuasive: (1) the nature of treatment and the length of time there has been a patientprovider
relationship; (2) whether the expert examined all pertinent records; (3) the
clarity, thoroughness and objective support underlying the opinion; (4) the
comprehensiveness of the evaluation; and (5) the qualifications of the experts, including
training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC
(September 17, 2003).
11. Neither of the medical experts here was a treating physician. However, Dr. Grace had the
benefit of conducting numerous independent medical examinations in the years since
Claimant’s 2003 injury, whereas Dr. Harvie only examined her once, some nine years
later. Given that the central issue in dispute involves the manner in which Claimant’s
condition has evolved over time, I conclude that this factor lends added credibility to Dr.
Grace’s opinion.
12. Beyond that, I conclude that Dr. Harvie’s opinion suffers from a lack of objective
support. He asserted that the 2003 work injury was still a factor contributing to the
8
ongoing degeneration in Claimant’s lumbar spine, but acknowledged that there was no
way to quantify to what extent this was so. He also admitted that she could control the
rate at which her range of motion would continue to decline (and thus the extent to which
her permanent impairment would continue to increase) through diet and exercise. The
logical inference is that such non-work-related factors are more likely driving Claimant’s
current circumstance, not an injury that occurred more than nine years ago.
13. In contrast, considering all of the factors that have played a role as Claimant’s condition
has continued to worsen, Dr. Grace credibly concluded that the natural aging process was
the most likely cause of her increased permanent impairment. In doing so, he recognized
how speculative it would be to predict the extent to which the degeneration in Claimant’s
lumbar spine would have progressed had her work injury not occurred. I agree.
14. Claimant points to the language of the parties’ previously approved permanency
agreement, in which the compensable injury was described as “degenerative disc
disease,” as the basis for imposing liability on Defendant for her increased permanent
impairment. I cannot accept this interpretation. That Claimant suffered from preexisting
degeneration in her lumbar spine was never disputed. It would make no sense to ascribe
its entire existence to her 2003 fall.
15. Though perhaps drafted inartfully, the injury Defendant accepted as compensable was not
the degenerative condition in Claimant’s lumbar spine itself, but rather the acceleration or
aggravation of that condition. By virtue of the permanency benefits it paid in 2005,
Defendant already has compensated Claimant for that compensable consequence. At
some point, the causal relationship between her work injury and the continued
progression of her disease becomes too attenuated, however. That point has now been
reached.
16. I conclude that Claimant has failed to sustain her burden of proving the extent, if any, to
which her 2003 work injury has caused her permanent impairment to increase since her
2005 permanency award.
Coverage for Dr. Harvie’s February 2012 Evaluation
17. Having previously found that at least one-third of Dr. Harvie’s February 2012 evaluation
was directed at issues unrelated to Claimant’s compensable injury, Finding of Fact No.
12 supra, I allocate one-third of the cost of that examination, or $1,695.00, to those
issues. The remaining two-thirds, or $3,441.00, I conclude are properly allocated to
reasonable medical services provided as treatment for Claimant’s compensable injury, for
which Defendant is responsible under 21 V.S.A. §640(a).
Costs and Attorney Fees
18. As Claimant has failed to substantially prevail on her claim for benefits, she is not
entitled to an award of costs and attorney fees.
ORDER:
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Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for additional
permanent partial disability benefits referable to her January 2003 compensable injury is hereby
DENIED. Defendant is hereby ORDERED to pay:
1. Medical benefits totaling $3,441.00 in accordance with 21 V.S.A. §640(a).
DATED at Montpelier, Vermont this 9th day of May 2013.
____________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions
of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont
Supreme Court. 21 V.S.A. §§670, 672.

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S. C. v. Barre Supervisory Union School (July 9, 2007)

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S. C. v. Barre Supervisory Union School (July 9, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
S. C. Opinion No. 18-07WC
v. By: Rebecca L. Smith
Staff Attorney
Barre Supervisory Union School For: Patricia Moulton Powden
Commissioner
State File No. T-11595
RULING ON DEFENDANT’S MOTION FOR RECONSIDERATION AND/OR STAY OF FINAL DECISION AND CLAIMANT’S MOTION TO RECONSIDER REGARDING ATTORNEY’S FEES, COSTS, INTEREST AND IMPAIRMENT RATING
The Defendant moves that the Department reconsider and modify, or in the alternative stay pending appeal, the final decision, Opinion No. 53-06WC, issued on January 2, 2007 after formal hearing in this workers’ compensation matter. Specifically, the Defendant disputes the Department’s finding of permanent partial impairment in Conclusion of Law 8, which states that Dr. Farrell’s is the only permanency opinion on record. The Defendant asserts that Dr. Hebben’s assessment of no permanent impairment is the correct one.
The Claimant requests several actions in her motion: 1) award of attorney’s fees and costs on the basis that the Claimant partially prevailed at hearing, 2) clarification of the specific percentage of impairment awarded, 3) an award of interest on all outstanding benefits ordered, and 4) an order directing payment of the permanent partial disability benefits in a lump sum pursuant to §652.
The initial opinion denied permanent total disability and awarded permanent partial impairment as assessed by Dr. Farrell, who provided a rating in the form of a range of 26-32%. It did not address attorney’s fees and costs or interest.
Permanent Partial Impairment
The Defendant argues that the Department erred in awarding permanent partial disability because that conclusion was not based on the facts found. Specifically, the Defendant disputes the statement in Conclusion of Law 8 that Dr. Farrell’s was the only permanency rating advanced, noting that Dr. Hebben assessed no impairment associated with the work injury.
2
Dr. Hebben’s opinion is founded on her conclusion that the Claimant suffered no psychiatric or cognitive injury as a result of the January 2003 accident. However, Dr. Hebben did find a somatoform disorder, which had not previously been diagnosed. Dr. Hebben describes that the mild head injury provided the Claimant with “a shelf to place [her preexisting psychological conditions] on.” Further, Dr. Hebben questioned the diagnosis of concussion and post concussion syndrome, while it is well established by both the Claimant’s treatment providers and by independent examiners hired by the Defendant that the Claimant experienced mild grade 1 concussion, followed by post concussion syndrome with persistent effects. Both Dr. Preis and the Claimant testified that a series of pre-injury conditions, essentially controlled and not significantly interfering with the Claimant’s teaching career, markedly worsened subsequent to the injury. Dr. Preis describes the post-injury symptoms as becoming chronic rather than episodic.
Therefore, upon review and reconsideration, the original finding that the lingering effects of the work injury combined with the pre-existing conditions to produce disability are the most probable hypothesis. This conclusion is additionally supported by Dr. Peyser, who opined that “the incident may have spawned a psychological reaction which may be impacting the results of some of her testing,” and recommended that the Claimant work with a vocational rehabilitation psychologist to “map out compensatory and recovery strategies along with pain management skills.”
Percentage of Impairment
In June 2005, Dr. Farrell found a psychological impairment directly attributable to the work injury of 26-32 % based on the Colorado Department of Labor and Employment guidelines. The AMA Guides to the Evaluation of Permanent Impairment assess impairment due to mental and behavioral disorders, but do not assign numerical impairment ratings as they do for other injuries. The Department has recognized the Colorado system for the purpose of assigning an impairment percentage to mental disorders. See, e.g. Bodell v. Webster Corporation, Opinion No. 62-96WC (October 22, 1996), Sargent v. Town of Randolph Fire Department, Opinion No. 37-02WC (August 22, 2002). Close comparison of Dr. Farrell’s findings with Table 13-8 of the Guides (Criteria for Rating Impairment due to Emotional or Behavioral Disorders) and the corresponding examples indicates correlation with high end Class 2 (moderate limitation of some activities of daily living, 15-29%) to low end Class 3 (severe limitation in performing most activities of daily living, 30-69%) impairment. Consequently, I find the Claimant’s whole person impairment rating to be 30%.
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Attorney’s Fees and Costs
By oversight, the initial opinion neglected to address attorney’s fees and costs. The Claimant has submitted an accounting of $19,719.00 in fees and $6,826.34 in costs.
The Claimant sought to establish work-related permanent total disability, or, in the alternative, work-related permanent partial disability; the Defendant disputed any permanent disability attributed to the work injury. Awarding of attorney’s fees is discretionary pursuant to 21 V.S.A. §678. The Claimant has prevailed in part, and is thereby entitled to of a portion of the fees and costs sought. An award in the amount of 50% of the fees sought, or $9,859.50, is appropriate to the degree of the Claimant’s success, in consideration of the extent to which the necessary preparations for the alternative positions overlapped.
Necessary costs are mandatory when a claimant prevails. Having prevailed in part, the Claimant is entitled to an award of costs, however the costs sought in this matter far exceed the norm for claims of this type. Payments to one individual alone, Dr. Paul R. Solomon, exceed four thousand dollars. Dr. Solomon’s role in preparing the case is not clear, and without further elaboration cannot be deemed necessary. Accordingly, $2,776.34 in costs is awarded.
Interest
Pursuant to 21 V.S.A. §664, an award shall include the date on which the Defendant’s obligation to pay compensation began, and shall include interest at the statutory rate computed from that date. Defendant’s obligation to pay temporary partial disability compensation began at the termination of the period of temporary total disability, which the parties have stipulated occurred on April 26, 2005. Interest on the benefits due shall be paid from that date.
Lump Sum
The Claimant requests an order requiring that the permanent partial disability benefits be paid in a lump sum in accordance with 21 V.S.A. §652 in order to protect her Social Security benefits from offset. Section 652 was amended in May 2006 to require that, in the absence of a claimant’s request to the contrary, any order for a lump sum payment of permanent partial disability benefits shall include a provision accounting for excludable expenses and prorating the remainder of the lump sum payment in the manner set forth by the Social Security Administration in order to protect the claimant’s entitlement to Social Security Benefits. The Department relies upon party counsel to provide such an accounting for review and approval, and cannot approve lump sum payment in its absence.
Stay
To prevail on its request for stay of the award of permanent partial disability benefits, the Defendant must demonstrate 1) that it is likely to succeed on the merits of the appeal; 2) that it would suffer irreparable harm if the stay were not granted,; 3) that a stay would not substantially harm the other party; and 4) that the best interests of the public would be served by the issuance of the stay. In re Insurance Services Offices, Inc. 148 Vt. 634, 635 (1987).
4
The Defendant argues that it will likely prevail on appeal because the Department’s conclusions were not based upon the facts as presented at hearing. Specifically, the Defendant notes that Conclusion of Law 8 conflicts with the facts found in Finding 38. The Defendant’s arguments regarding the other three stay factors are similarly based. Those concerns are addressed above in the discussion regarding the reconsideration of the award of permanent partial disability benefits. The defendant has failed to sufficiently demonstrate that another forum, after interpreting all submitted evidence, would reach a different conclusion. See, e.g. Carter v. Portland Glass, Opinion No.8RS-98WC (April 3, 1998 and Feb. 6, 1998). Without this essential prong of the four-part test under In re Insurance Services Offices, Inc., the Defendant’s arguments regarding the other three prongs are diminished, and lead to the conclusions that the required factors are not demonstrated. Accordingly, the motion for a stay must be denied.
ORDER:
Therefore, based upon the forgoing:
1. The award of permanent partial disability is upheld after reconsideration;
2. PPD shall be at the rate of 30% whole person disability;
3. Interest is awarded as though the PPD payments had commenced on April 26, 2005;
4. Claimant is awarded attorney’s fees and costs in the amount of $10,625.00;
5. Claimant’s request for a lump sum payment of benefits is denied.
Dated at Montpelier, Vermont this 9th day of July 2007.
______________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

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Jeffrey Marshall v. State of Vermont, Vermont State Hospital (January 25, 2011)

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Jeffrey Marshall v. State of Vermont, Vermont State Hospital (January 25, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Jeffrey Marshall Opinion No. 01-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
State of Vermont,
Vermont State Hospital For: Anne M. Noonan
Commissioner
State File No. S-22038
OPINION AND ORDER
Hearing held in Montpelier, Vermont on October 6, 2010
Record closed on November 12, 2010
APPEARANCES:
Patricia Turley, Esq., for Claimant
William Blake, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant entitled to additional permanent partial disability and/or medical benefits referable to his June 2002 compensable work injury?
2. Did Defendant fail to give Claimant proper notice of its denial of various medical bills, and if yes, is Defendant thereby obligated to pay?
3. Is Defendant entitled to apportionment of any permanent partial impairment on account of Claimant’s 1989 and/or 1997 injuries?
4. Is Claimant barred by the statute of limitations from seeking additional permanent partial disability benefits referable to his 2002 injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Letter from Tim Vincent, August 7, 2003
Claimant’s Exhibit 2: Vocational Rehabilitation Progress Report, March 31, 2004
Claimant’s Exhibit 3: Letter from Susan Drapp, RN, March 28, 2005
Claimant’s Exhibit 4: Letter from Bruce Chenail (with attachments), August 1, 2005
Claimant’s Exhibit 5: Letter to Department (with attachments), September 6, 2005
Claimant’s Exhibit 6: Curriculum vitae, Sikhar Banerjee, M.D.
2
Defendant’s Exhibit A: Form 22 approved February 3, 2004
Defendant’s Exhibit B: Form 22 approved December 28, 1993
Defendant’s Exhibit C: Deposition of Dr. William Boucher, September 29, 2010
CLAIM:
Medical benefits pursuant to 21 V.S.A. §640
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim. Judicial notice also is taken of relevant portions of the AMA Guides to the Evaluation of Permanent Impairment (5th ed.) (hereinafter the “AMA Guides”).
3. Claimant was employed by Defendant as a ward aide. On June 6, 2002 he was assisting a co-employee to restrain a self-abusive patient. At one point the patient lifted both legs off the floor, requiring Claimant and the co-employee to support his entire weight. Claimant felt the immediate onset of low back pain, with sciatic pain radiating down both legs.
Claimant’s Prior Low Back Injuries
4. At the time of this injury Claimant already had suffered three previous work-related low back injuries. The first one occurred in 1987. While working for a prior employer, Claimant experienced low back pain and radicular symptoms down his left leg as a result of a forklift accident. He was diagnosed with a significant left-sided L5-S1 disc herniation, for which he underwent surgery in 1989. The surgery went well, and aside from some minor residual numbness in his left foot Claimant’s symptoms completely resolved. He resumed his regular activities without restriction, both at work and recreationally. The latter included hunting, fishing, working on his land and other outdoor pursuits.
5. Claimant was not rated for his permanent impairment following the 1987 injury and subsequent surgery. He did not seek, and was not paid, any permanent partial disability benefits as a result.
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6. The second injury occurred in 1992, when Claimant lifted a heavy patient while at work for Defendant. He experienced the same symptoms he had suffered as a result of the 1987 injury – low back pain and radicular symptoms down his left leg – and was diagnosed with a recurrent disc herniation at L5-S1, the same disc that had ruptured previously. Again Claimant underwent disc surgery, and again his symptoms almost completely resolved, allowing him to resume both recreational and work activities without restriction.
7. Having reached an end medical result for his 1992 injury, in November 1993 Claimant’s treating surgeon rated him with a 10% permanent impairment of the spine. Defendant accepted this rating and paid permanent partial disability benefits accordingly. In doing so it made no attempt to determine whether some portion of Claimant’s permanent impairment should have been allocated back to his 1987 injury.
8. Claimant injured his back for the third time in June 1997, again while working with a patient in the course of his employment for Defendant. As before, his symptoms included low back pain and radicular symptoms down his left leg. Once again, Claimant was diagnosed with a recurrent disc herniation at L5-S1, for which he underwent surgery and then successfully recovered.
9. Claimant was not rated for his permanent impairment after the 1997 injury, and was not paid any permanent partial disability benefits referable to it.
Claimant’s Medical Course Following the June 2002 Low Back Injury
10. Claimant’s symptoms following the June 2002 injury were different from those he had experienced after any of his three previous injuries. Whereas the predominant symptoms after his prior injuries were radicular pain, numbness and tingling down his left lower extremity, this time Claimant’s low back pain was predominant, and his radicular symptoms were both left- and right-sided.
11. Claimant treated with Dr. Cyr, a chiropractor, following his 2002 injury. Diagnostic x-rays taken shortly after the event showed mild degenerative changes at L4, L5 and S1. A July 2002 MRI study revealed a small recurrent left-sided disc herniation at L5-S1, but did not note abnormalities at any other level. Specifically, the study did not mention any findings whatsoever at the L4-5 level.
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12. Claimant opted not to treat surgically for his 2002 injury. Dr. Tranmer, a spine surgeon with whom he consulted in August 2002, remarked that as he was managing “reasonably well” with exercises and chiropractic care, surgery to remove the recurrent disc herniation likely was not necessary. Dr. Krag, the surgeon who had treated Claimant following his 1997 injury, concurred with this assessment. In his opinion, it was unlikely that Claimant’s symptoms were associated with the July 2002 MRI findings. It was more likely that the June 2002 incident caused a muscle strain or ligament injury, and that Claimant’s current symptoms were attributable to resulting back spasms, perhaps also with a component of disc degeneration. Rather than surgery, therefore, as treatment Dr. Krag recommended physical therapy and home exercises aimed at strengthening Claimant’s back.
13. Given Claimant’s extensive history of low back injuries and surgeries, Dr. Tranmer, Dr. Krag and Dr. Cyr all recommended as well that Claimant not return to his prior job and that instead he seek less physically demanding work. The results of a January 2003 functional capacities evaluation indicated likewise.
14. Claimant treated regularly with Dr. Cyr throughout the fall and winter of 2002, and also underwent a course of physical therapy. On February 24, 2003 Dr. Cyr determined that Claimant had reached the point of maximum medical improvement, or end medical result. As discussed further infra, using the fifth edition of the AMA Guides Dr. Cyr rated Claimant with an 8% whole person impairment referable to the spine.
15. Unlike his course following his previous injuries, after reaching an end medical result for his 2002 injury Claimant still experienced lingering low back pain and radiculopathy. Having been advised not to return to his prior job, he was frustrated in his efforts to find suitable alternative work. He also was frustrated by his inability to resume the recreational activities he had enjoyed in the past.
16. Claimant voiced his frustration to Dr. Curchin, his primary care physician, at various times in 2004. At Dr. Curchin’s referral, he underwent an MRI study in November 2004 and then consulted with Dr. Grzyb, a spine specialist, in March 2005. The MRI revealed chronic changes at L5-S1, the site of Claimant’s previous disc injuries and surgeries. It also showed a disc protrusion at L4-5, possibly affecting the right L5 nerve root. This was a new finding, one that had not been evident at the time of Claimant’s July 2002 MRI. Notably, the possibility of right L5 nerve root irritation is consistent with Claimant’s right-sided radicular symptoms.
17. At Dr. Grzyb’s referral, in April 2005 Claimant underwent an evaluation with Dr. Borrello, a pain management specialist. Dr. Borrello suggested injection therapy, but Claimant was not interested, such treatments having proved ineffective in conjunction with one of his prior low back injuries. Instead he opted for medication as his primary pain management tool.
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18. Claimant continues to use prescribed medications for pain relief. Other than that, the medical records do not reflect that he has treated actively for his ongoing symptoms since 2005. His pain significantly limits his activities, and has continued to worsen in the years since Dr. Cyr declared him at end medical result. Claimant still has not returned to work.
The February 2004 Permanency Agreement
19. As noted above, Finding of Fact No. 14 supra, after determining that Claimant had reached an end medical result for his June 2002 injury, in February 2003 his treating physician, Dr. Cyr, rated him with an 8% whole person impairment referable to the spine. Both Claimant and Defendant accepted this permanency rating and entered into an Agreement for Permanent Partial Disability Compensation (Form 22) in accordance with it. As part of the agreement, the parties acknowledged that Claimant previously had been compensated for a 10% impairment of the spine in conjunction with his 1992 injury, see Finding of Fact No. 7 supra. That impairment having been calculated according to an earlier version of the AMA Guides, it was converted under the current version to a 6% whole person impairment. As mandated by statute, 21 V.S.A. §648(d), the parties then agreed to subtract that amount from the 8% that Dr. Cyr had rated, leaving 2% still owed as attributable to the June 2002 injury.
20. The Department approved the parties’ Form 22, and thus awarded Claimant permanency benefits equating to a 2% whole person impairment on February 3, 2004. Defendant timely paid these benefits.
21. At no time during the process of rating or paying the permanency due Claimant on account of his 2002 injury did Defendant raise the issue whether it was entitled to further apportionment of Dr. Cyr’s 8% rating on account of any permanency that might have been attributable to Claimant’s 1987 and/or 1997 injuries. Nor did Claimant investigate whether in fact he might have been owed additional permanency as a consequence of those injuries.
Defendant’s Denial of Payment for Drs. Grzyb and Borrello Evaluations
22. As noted above, Findings of Fact Nos. 16 and 17 supra, in March and April 2005 Claimant underwent evaluations with Dr. Grzyb, a spine specialist, and Dr. Borrello, a pain management specialist. The reason for these evaluations was to determine what, if any, additional treatments might prove effective at managing Claimant’s back pain and associated symptoms. Defendant denied payment of both bills on the grounds that the evaluations were not causally related to the June 2002 injury, but rather were for the purpose of supporting Claimant’s application for social security disability benefits. I find that although this issue may have been discussed, it was not the primary purpose of either doctor’s evaluation.
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23. Defendant’s denials, which were dated in August and September 2005 respectively, were issued well outside the 30-day time limit for either accepting or denying workers’ compensation-related medical bills under Workers’ Compensation Rule 40.021(C). In addition, Defendant mistakenly addressed both denials. As a result, Claimant did not receive either of them and therefore was not seasonably apprised of Defendant’s action. I find that Defendant had Claimant’s correct mailing address in its possession, and particularly when one of the denials was returned stamped “unable to forward,” it should have realized its mistake and acted to correct it. By its failure to do so, I find that Claimant was prejudiced in his ability to appeal Defendant’s determination.
24. It is unclear from the record whether these bills were paid by other insurance, whether Claimant himself paid them, or whether they remain unpaid to date.
Expert Opinions as to Claimant’s Permanent Impairment
25. Claimant has undergone three evaluations directed at assessing the extent of his permanent impairment following the June 2002 injury. As noted above, Finding of Fact No. 14 supra, Dr. Cyr rated Claimant’s permanent impairment in February 2003, after determining that he had reached an end medical result for the 2002 injury. At his attorney’s referral in July 2008, and as revised in August 2010, Dr. Banerjee rendered a second impairment rating. Last, at Defendant’s referral Dr. Boucher issued a third permanency rating in March 2010. In deriving their ratings, each doctor reviewed Claimant’s medical history, conducted his own evaluation and applied his findings in accordance with his particular interpretation of the AMA Guides.
(a) General Rating Principles under the AMA Guides
26. The AMA Guides provide two alternative methods for calculating permanent impairment referable to the lumbar spine. Under the “Diagnosis-Related Estimates” (DRE) method, the permanency rating is derived by assigning an individual to one of five categories of impairment based on his or her symptoms, signs and diagnostic test results. AMA Guides §15.3 at p. 381 and §15.4 at p. 384. Under the “Range of Motion” (ROM) method, in addition to considering the individual’s diagnosis, both range of motion deficits and nerve root impairment are factored in as well. Id. at §15.8 et seq. Particularly with respect to quantifying an individual’s range of motion, the Guides give specific instructions so as to ensure that all of the measurements used are valid and reproducible. This includes allowing the patient adequate opportunity to warm up prior to taking any measurements, requiring that measurements be discarded if they change substantially with repeated efforts, and taking care that the measurement device is properly positioned on the spine. Id. at §§15.8a and 15.8b.
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27. The AMA Guides direct evaluators to use the DRE method as the “principal methodology” for rating impairment due to a distinct injury. Id. at §15.2, p. 379. In some situations, however, the ROM method is preferable. For example, where there is multilevel involvement in the same spinal region (such as multiple lumbar disc herniations), or where there is recurrent radiculopathy caused by a recurrent disc herniation or injury, the Guides direct that the ROM method be used. Id. at p. 380. Last, recognizing that there exist some instances in which either method might be appropriate, the Guides direct the evaluator to use whichever one will yield the higher rating. Id.
28. As for apportioning impairment between a current and a prior injury, the Guides first acknowledge that “most states have their own customized methods for calculating apportionment.” Id. at §1.6b, p. 12. An examiner must therefore defer to the “jurisdiction practices” that will apply given the particular context in which an impairment rating is to be considered. Id. at §15.2a, p. 381. Within that framework, the Guides instruct as follows:
If requested, apportion findings to the current or prior condition, following jurisdiction practices and assuming adequate information is available on the prior condition. In some instances, to apportion ratings, the percent impairment due to previous findings can simply be subtracted from the percent based on the current findings. Ideally, use the same method to compare the individual’s prior and present conditions. If the ROM method has been used previously, it must be used again. If the previous evaluation was based on the DRE method and the individual now is evaluated with the ROM method, and prior ROM measurements do not exist to calculate a ROM impairment rating, the previous DRE percent can be subtracted from the ROM ratings. Because there are two methods and complete data may not exist on an earlier assessment, the apportionment calculation may be a less than ideal estimate.
Id.
(b) Dr. Cyr’s Impairment Rating
29. Dr. Cyr specifically referenced the DRE method as the basis for the 8% impairment rating he calculated in February 2003. Notably, at the time of Dr. Cyr’s rating there was not yet any indication that Claimant’s L4-5 disc was in any way contributing to his symptoms, and therefore presumably no basis yet existed for discarding the DRE method due to multilevel disc involvement. AMA Guides at p. 380, see Finding of Fact No. 27 supra. Similarly, although Dr. Cyr was well aware at the time that Claimant previously had suffered recurrent disc herniations at the L5-S1 level, there was no mention in his report of recurrent radiculopathy. Id. With this in mind, it is by no means clear from the evidence presented that Dr. Cyr was wrong to have used the DRE method given Claimant’s symptoms, signs and diagnostic test results as of February 2003.
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30. Dr. Cyr did not also calculate Claimant’s impairment using the ROM method, and therefore there is no way to know whether that method would have yielded a higher or lower rating than the 8% he calculated according to the DRE method.
(c) Dr. Banerjee’s Impairment Rating
31. Dr. Banerjee first evaluated Claimant in July 2008, more than six years after his injury. Dr. Banerjee is board certified in physical and rehabilitation medicine. He reviewed Claimant’s medical records and conducted his own physical examination. From that, he concluded that Claimant’s current symptoms were related to a right L4-5 disc herniation resulting from the June 2002 work injury. In reaching this conclusion, Dr. Banerjee relied primarily on the fact that Claimant’s current complaints had begun with the June 2002 injury and had remained consistent thereafter.
32. In formulating his opinion, Dr. Banerjee failed to explain why, if the June 2002 injury had caused an L4-5 disc herniation, this would not have been apparent on the July 2002 MRI study. As he did not personally review the study, he could only speculate that perhaps the finding had been missed. Dr. Banerjee also did not explain why in his opinion the L4-5 disc herniation was more likely due to injury-associated trauma as opposed to either age-related degeneration or some other cause. Disc herniations are very common in people of Claimant’s age, and although certainly they can be triggered by injury-related trauma, they often occur for no apparent reason at all.
33. Because he believed that Claimant’s current symptoms were entirely attributable to a different disc level (L4-5) from the one involved in his earlier injuries (L5-S1), initially Dr. Banerjee interpreted the AMA Guides as allowing a DRE-based impairment rating. Using this method, he calculated a 13% whole person impairment referable to the June 2002 injury. The difference between this rating and Dr. Cyr’s earlier 8% rating lies at least partially in the extent of the radicular signs that each doctor observed. Whereas Dr. Cyr did not mention radicular complaints at all as a basis for his DRE rating, Dr. Banerjee’s rating depended in part on them. I find from this evidence that Claimant’s radicular symptoms likely worsened in the years between Dr. Cyr’s evaluation and Dr. Banerjee’s.
34. Dr. Banerjee later determined that his interpretation of the AMA Guides had been incorrect, and that because Claimant had suffered lumbar disc herniations at multiple levels, it was more appropriate to rate impairment using the ROM method rather than the DRE method. Using the ROM method, Dr. Banerjee calculated Claimant’s current impairment at 25% whole person. He then apportioned away the 8% previously rated and paid in accordance with Dr. Cyr’s 2003 DRE-based evaluation, leaving 17% additional whole person impairment attributable to the June 2002 injury.
(d) Dr. Boucher’s Impairment Rating
35. Dr. Boucher evaluated Claimant in March 2010, at Defendant’s request. Dr. Boucher is board certified in occupational medicine. He is experienced at rating permanency under the AMA Guides, and was a contributor to the most recent edition.
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36. Based both on his review of Claimant’s medical records and on his physical examination findings, Dr. Boucher concluded that the June 2002 work injury consisted of a lumbosacral strain, which aggravated some pre-existing degenerative changes in his lumbar spine but did not in any way cause the L4-5 disc herniation. In Dr. Boucher’s opinion, more likely than not the June 2002 injury is no longer contributing significantly to Claimant’s ongoing complaints.
37. As Dr. Banerjee had, Dr. Boucher used the ROM method to calculate the extent of Claimant’s current impairment, which he rated at 20% whole person. The difference between this rating and Dr. Banerjee’s 25% rating is attributable to two factors. First, Claimant exhibited less severe range of motion deficits on Dr. Boucher’s examination than he had at the time of Dr. Banerjee’s evaluation. Second, having determined that the L4-5 disc herniation was not contributing in any way to Claimant’s current complaints, Dr. Boucher did not factor it into his rating, while Dr. Banerjee did.
38. Where Dr. Boucher’s opinion diverged most sharply from Dr. Banerjee’s was as to how best to apportion Claimant’s permanency between the current impairment and whatever impairment was – or should have been – rated previously. As noted above, Finding of Fact No. 34 supra, Dr. Banerjee did so simply by subtracting from his own 25% rating the 8% previously rated and paid in accordance with Dr. Cyr’s 2003 evaluation. As Dr. Banerjee’s rating was based on the ROM method, and Dr. Cyr’s on the DRE method, apportioning in this way may have led to what the AMA Guides acknowledge is “a less than ideal estimate.” AMA Guides §15.2a at p. 381; see Finding of Fact No. 28 supra. Nonetheless, it is what the Guides recommend where, as here, prior ROM measurements are not available. Id.
39. Dr. Boucher approached the problem differently. In his opinion, given Claimant’s multiple injuries and surgeries it would be inappropriate to use a DRE-based impairment rating for any part of the apportionment calculation. Instead, Dr. Boucher made a number of assumptions as to the range of motion deficits that he thought Claimant would have suffered after his 1997 surgery, and from those he attempted to recreate what he estimated Claimant’s ROM-based impairment would have been just prior to the June 2002 injury.
40. Using this methodology, Dr. Boucher determined that Claimant’s prior impairment would have been 18% whole person. Subtracting that amount from the 20% impairment Dr. Boucher rated at the time of his evaluation left an impairment of only 2% referable to the June 2002 injury. This is exactly the amount that was paid in accordance with the parties’ February 2004 permanency agreement. According to Dr. Boucher’s calculations, therefore, Claimant is not due any additional permanency relative to his June 2002 injury.
41. Given the care with which the AMA Guides instruct practitioners to measure range of motion deficits, see Finding of Fact No. 26 supra, the methodology Dr. Boucher employed seems particularly imprecise. For that reason, I find that Dr. Banerjee’s apportionment methodology comports more closely with the Guides’ directives.
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CONCLUSIONS OF LAW:
1. At issue in this case is Claimant’s claim to additional medical and permanency benefits causally related to his June 2002 work injury. Claimant alleges that his current low back pain and radicular symptoms are directly attributable to that injury. He bears the burden of proof, Egbert v. The Book Press, 144 Vt. 367 (1984), and as the issues presented are beyond a layperson’s expertise, he must establish his claim by way of credible expert testimony. Marsigli’s Estate v. Granite City Auto Sales, Inc., 124 Vt. 95 (1964).
2. Here, Claimant offered Dr. Banerjee’s testimony in support of his claims, while Defendant countered with that of Dr. Boucher. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
Claimant’s Entitlement to Additional Permanency Benefits
3. Claimant has presented two alternative grounds in support of his claim for additional permanency benefits. On the one hand, he asserts that his condition has worsened appreciably since his original permanency award in February 2004. On those grounds, he argues, the award should be modified and additional benefits paid in accordance with Dr. Banerjee’s 2008 evaluation and subsequent ROM-based impairment rating. See 21 V.S.A. §668.
4. Alternatively, Claimant asserts that because the parties were mutually mistaken as to the extent of Claimant’s permanent impairment as rated by Dr. Cyr in 2003, their prior Form 22 permanency agreement should be invalidated and Dr. Banerjee’s rating substituted instead. The basis for this assertion is that Dr. Cyr improperly interpreted the AMA Guides by deriving Claimant’s impairment using DRE-based rather than ROM methodology.
(a) Modification of Award on Grounds of Change in Condition
5. I cannot accept Claimant’s first argument. It is true that Claimant’s condition has worsened since Dr. Cyr first rated his impairment in 2003. This much is clear simply by comparing his 8% rating to Dr. Banerjee’s 13% DRE-based rating in 2008. Dr. Banerjee’s rating was based on his opinion that Claimant’s ongoing symptoms were attributable to an L4-5 disc herniation, which he believed occurred as a result of the June 2002 work injury even though it was not diagnosed until 2004.
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6. Dr. Banerjee’s opinion is deficient in two important respects, however. First, he failed adequately to explain why, if the June 2002 injury in fact caused the L4-5 disc herniation, this finding would not have been noted at the time of the July 2002 MRI. Second, he failed adequately to explain the basis for his conclusion that the herniation resulted from injury-related trauma as opposed to some other cause, such as, for example, age-related degeneration. Given these omissions, I find that Dr. Banerjee’s opinion lacks clarity, thoroughness and objective support.
7. In contrast, Dr. Boucher’s causation opinion – that the June 2002 work injury did not cause Claimant’s L4-5 disc herniation and is not responsible for his current condition – adequately accounts for the differences between the 2002 and 2004 MRI findings.
8. Considering the weaknesses in Dr. Banerjee’s analysis, I cannot accept his opinion as more credible than Dr. Boucher’s. As Claimant bears the burden of proof on this issue, I cannot conclude, therefore, that the June 2002 injury was responsible either for his worsened condition or for his increased permanent impairment in 2008.
(b) Material Mistake of Fact as Basis for Re-Opening Prior Permanency Award
9. As an alternative argument in support of his claim for additional permanency, Claimant asserts that the parties’ prior Form 22 permanency agreement is subject to reopening on the grounds that it was based on a material mistake of fact. I disagree.
10. It is generally accepted that once the parties to a workers’ compensation claim execute a Form 22 or other form agreement, and the Commissioner (or her designee) approves it, it becomes a binding and enforceable contract. Workers’ Compensation Rule 17.0000; Lushima v. Cathedral Square Corporation, Opinion No. 38-09WC (September 29, 2009). Absent evidence of fraud or material mistake of fact, the parties will be deemed to have waived their right to contest the material portions of the form, and the Department will consider it to represent a final determination of any dispute as to its contents. Id.
11. It is important to note, first of all, that the “material portion” of the Form 22 at issue here concerns only the impairment rating to which the parties agreed – 8% whole person – not the methodology used to derive it. No evidence was introduced as to what that impairment rating would have been had Dr. Cyr calculated it according to the ROM method, as Claimant alleges he should have, rather than according to the DRE method. It is impossible to know, therefore, whether the 8% permanency to which the parties ultimately agreed would have been higher, or lower, or perhaps just the same.
12. Even if Dr. Cyr’s interpretation of the AMA Guides was mistaken, furthermore, I still cannot categorize the outcome as a mistake of fact. As the Guides acknowledge, rating impairment is both an “art” and a “science.” AMA Guides §1.5 at p. 11. The process combines objective, scientifically based data with a physician’s clinical judgment to produce an estimate that reflects the severity of an individual’s medical condition. Id. §1.2a at p. 4 and §1.5. The result is an opinion, not a fact.
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13. I conclude that there is no basis for awarding Claimant additional permanency benefits on the grounds that his prior award was based on a mutual mistake of fact.1
Defendant’s Responsibility for Medical Charges Denied in 2005
14. As a final issue, Claimant asserts that Defendant should be deemed responsible for the medical charges it denied in 2005, on the grounds that it failed to notify Claimant seasonably of its denial. I agree.
15. The workers’ compensation rules require prompt written notification to a claimant whenever an employer seeks to deny benefits. Workers’ Compensation Rule 3.0900. Where the employer fails to comply, the Commissioner has discretion to order that benefits be paid. Workers’ Compensation Rule 3.1300.
16. It is appropriate to exercise that discretion here. Defendant’s mistake was avoidable, and Claimant was prejudiced as a result. I conclude that Defendant is obligated to pay the medical charges associated with Dr. Grzyb’s and Dr. Borrello’s March and April 2005 evaluations, with interest from the date payment should have been made under Workers’ Compensation Rule 40.021(C). If either of these bills has already been paid, Defendant shall reimburse the payor, with interest.
17. Having already concluded that Claimant has failed to sustain his burden of proving that his current condition is causally related to his June 2002 work injury, his claim for ongoing medical benefits (aside from those denied in 2005) must fail as well.
Costs and Attorney Fees
18. Claimant having failed to substantially prevail on his claim, he is not entitled to an award of costs or attorney fees.
1 Having determined that Claimant is not entitled to additional permanency on either of the grounds he asserted, I need not decide the merits of Defendant’s statute of limitations defense. Nor is it necessary to consider Defendant’s claim that it is entitled to apportionment as a consequence of Claimant’s 1987 and/or 1997 injuries.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for additional permanent partial disability and/or ongoing medical benefits causally related to his June 6, 2002 work-related injury is hereby DENIED. Defendant is hereby ORDERED to pay:
1. Medical benefits in accordance with Conclusion of Law No. 16 above, with interest as required by 21 V.S.A. §664.
DATED at Montpelier, Vermont this 25th day of January 2011.
_____________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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Clifford Hill v. Lamell Lumber Corp. (November 14, 2012)

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

Clifford Hill v. Lamell Lumber Corp. (November 14, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Clifford Hill Opinion No. 27-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Lamell Lumber Corp.
For: Anne M. Noonan
Commissioner
State File No. CC-00915
OPINION AND ORDER
Hearing held in Montpelier on August 29, 2012
Record closed on October 3, 2012
APPEARANCES:
Frank Talbott, Esq., for Claimant
Justin Sluka, Esq., for Defendant
ISSUES PRESENTED:
1. Did Claimant suffer an injury arising out of and in the course of his employment, either on or about December 21, 2009 and/or on December 31, 2009?
2. If yes, to what temporary total and/or permanent partial disability benefits is Claimant entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Medical records
Claimant’s Exhibit 1: Copy of time card for week ending 1/5/10
Claimant’s Exhibit 2: Copies of time cards for weeks ending 1/5/10 and 12/29/09
Claimant’s Exhibit 3: Employment termination notice, February 23, 2010
Claimant’s Exhibit 4: Payroll register, January 1, 2009 to December 31, 2009
Claimant’s Exhibit 5: Memo to employees, December 14, 2009
Claimant’s Exhibit 7: Original time card, week ending 1/5/10
Claimant’s Exhibit 8: Original time card, week ending 12/29/09
Claimant’s Exhibit 9: Original time card, week ending 12/22/09
Defendant’s Exhibit A: December 2009 – January 2010 calendar
Defendant’s Exhibit B: Unemployment compensation determinations, 3-25-10 and 3-26-10
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Defendant’s Exhibit E: Cell phone record
CLAIM:
Temporary total disability benefits from January 4, 2010 to December 10, 2010, pursuant to 21 V.S.A. §642
Permanent partial disability benefits in accordance with a 39 percent whole person impairment referable to the spine, pursuant to 21 V.S.A. §648
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
3. As of December 2009 Claimant had been employed at Defendant’s sawmill as a yard worker for approximately five years. His primary assignment was running the de-barker, the machine that removes the bark from logs before they are sawed for lumber. His other duties included stacking lumber, running the front-end loader and sweeping up various areas of the mill.
Claimant’s Alleged Work-Related Injuries and Subsequent Medical Course
4. Claimant alleges two incidents at work in December 2009, both of which he asserts caused injury, neither of which were reported. The first incident occurred at some point during the week before Christmas.1 Claimant was working in a basement room that houses the apparatus for processing wood chips. Slabs of wood or bark make their way through a chipper to a series of vibrating screens, which sort them according to size. Appropriately sized chips are directed first into a blower, and from there into a steel chute that runs uphill, through the concrete outer wall and into a trailer parked outside.
5. On the day in question, Claimant was shoveling wood chips back into the blower from where they had fallen on the floor. Thinking he was further away from the chute than he was, as he turned to walk around it instead he walked into it. Claimant hit the left side of his head on the chute and fell down. The impact left a red mark on his forehead, but did not cause any bleeding or bruising. He recalled that he had a slight headache thereafter, for which he took some aspirin from the first-aid station. Other than that, he did not seek medical attention.2
1 Claimant did not specify the date on which this incident allegedly occurred – December 21, 2009 – until almost a year later, in the context of the December 2010 independent medical exam that his attorney arranged with Dr. White. See infra at Finding of Fact No. 14. In fact, Defendant’s time cards document that he did not work on that day. Claimant now asserts that the incident occurred at some point during the week prior to Christmas 2009, though he cannot recall exactly when.
2 Claimant testified that as soon as he left the chipper area he told his supervisor, Keith Lamell, that he had hit his head on the chute. Mr. Lamell was not called by either party to testify, and therefore there is no corroborating
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6. The second incident occurred approximately two weeks later, on Thursday, December 31, 2009. Although the sawmill was shut down for the Christmas holiday, Keith Lamell telephoned him that morning and asked him if he would help change a bearing in the de-barker machine. Claimant agreed to do so.
7. Claimant alleges as follows: At some point during the day he made use of a plastic bucket to retrieve some used oil from the maintenance shop, so that he could lubricate the chains on the log deck. After completing the job, he began walking back to the garage, plastic bucket in hand. As he traversed an icy metal cross-over in the lumber yard, he slipped and fell. As he went down, he struck his right ribs and chest on the bucket.3
8. Because the mill was still shut down for the holiday week, Claimant did not work in the days immediately following this alleged incident. Nor did he seek medical treatment. The following Monday, January 4, 2010, he arrived at the mill for his scheduled shift. While working that afternoon, he slipped again on some snow and ice in the yard, bruising his ribs for a second time. Concerned that he had aggravated his injury from the week before, he left work early and presented to the local walk-in clinic for evaluation and treatment.
9. The medical record of Claimant’s January 4, 2010 clinic visit is telling, both for what it contains and for what it omits. It reports the history of Claimant’s presenting injury as having occurred two days previously, when he slipped on the ice and fell, striking his right chest on what is described first as “an ash bucket” and later as “a plastic bucket.” Significantly, the record does not report the fall as having occurred at work. Nor does it reference the earlier incident, in which Claimant allegedly hit his head on the chipper chute, in any way.
10. As for symptoms, the January 4, 2010 record reports “persistent chest pain” as Claimant’s only complaint. Of note, a review of neurological systems was described as negative for both dizziness and weakness. Claimant was diagnosed with a chest wall contusion, for which he was prescribed anti-inflammatories and pain medications.
11. Three days later, on January 7, 2010 Claimant returned to the walk-in clinic, this time complaining that he had caught himself from falling “due to dizziness and legs seizing up on him.” He reported a three-week history of progressively worsening numbness and weakness in his extremities, gait difficulty and loss of balance, with the “current episode” beginning more than one week ago. This history is quite obviously different from the one reported in the context of Claimant’s January 4, 2010 clinic visit. Significantly, even in reporting this revised account Claimant still made no mention of having hit his head on
evidence for this testimony. Having reason to doubt Claimant’s ability to recall the specifics of this and other events, I cannot find as a fact that his recollection in this regard is accurate.
3 Claimant testified that he thought he reported this incident to Keith Lamell as well, though he admitted he was uncertain on this point. No First Report of Injury was filed, and Claimant did not seek workers’ compensation benefits on account of either this or the chipper chute incident until the following November, see Finding of Fact No. 36, infra.
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the chipper chute at work, though this would have occurred approximately three weeks previously. Nor did he recall any other recent head or neck trauma.
12. Claimant’s neurological signs and symptoms were serious enough to warrant immediate hospitalization. An MRI study revealed a large cervical disc herniation at C5-6, with cord compression. With a diagnosis of cervical myelopathy,4 on January 11, 2010 he underwent a C5-6 discectomy and fusion.
13. Claimant was followed post-operatively by his treating neurosurgeon, Dr. Jewell. Initially he reported some improvement in his symptoms, but this was relatively short-lived. By October 2010 he was complaining of “terrible” neck pain, ongoing numbness in his arms and legs and balance issues. A second MRI study demonstrated that his cervical spinal cord was well decompressed, leading Dr. Jewell to conclude that further surgery was not warranted. As a result, Claimant’s treatment since that time has consisted primarily of narcotic pain medications.
Expert Medical Opinions
(a) Dr. White
14. At the request of his attorney, in December 2010 Claimant underwent an independent medical examination with Dr. White, an occupational medicine specialist. In the course of this examination, for the first time Claimant reported having “banged my head” on the chipper chute at work on December 21, 2009 as the inciting event for his subsequent symptoms. Following that incident, he recalled, he had no feeling in his legs or hands, and his balance was impaired.
15. Dr. White concurred with Dr. Jewell’s diagnosis – C5-6 disc herniation with cervical myelopathy. He determined that Claimant had reached an end medical result and rated him with a 39 percent whole person impairment. A critical component of this rating was Dr. White’s conclusion that Dr. Jewell’s fusion surgery was not entirely curative, and that Claimant has continued to exhibit signs indicative of cervical myelopathy.
16. As for whether there was a causal link between Claimant’s condition and the alleged chipper chute incident at work, Dr. White had this to say:
In discussing the onset of his symptoms today, Mr. Hill describes a fall in which he struck his head,5 with immediate onset of symptoms at that time. If that is the correct description of the mechanism and chronology, there would indeed be a causal relationship, an aggravation of his underlying (previously asymptomatic) cervical problem.
4 Cervical myelopathy differs from radiculopathy in that it indicates damage to the spinal cord itself rather than to the peripheral nerve roots.
5 Dr. White later clarified that his description of the chipper chute incident as involving a “fall in which he struck his head” was erroneous, and that in fact Claimant had told him that he simply struck his head. Regardless, his opinion that the occurrence was the inciting event for Claimant’s subsequent symptoms remains unchanged.
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17. Dr. White specifically acknowledged that the mechanism of injury Claimant described was not corroborated in the medical records. As to this, he stated:
Obviously, I was not there at the time and I did not observe Mr. Hill falling and hitting his head. Furthermore, it is really not a medical question as to whether or not this incident occurred. However, as noted above, if indeed this was the injury mechanism, there is a causal relationship.
18. As Dr. White correctly noted, the contemporaneous medical records do not corroborate the mechanism of injury Claimant described. The credible evidence also fails to corroborate Dr. White’s assumptions as to the chronology of Claimant’s symptoms, specifically, that they began immediately after he struck his head on the chipper chute. Notwithstanding what he reported to Dr. White, at the formal hearing Claimant himself testified that aside from a minor headache, he did not experience any deleterious effects from that incident. Nor do the contemporaneous medical records indicate a connection between the onset of his symptoms and either that event or any other recent head or neck trauma. See Findings of Fact Nos. 9-11, supra. Considering this evidence, I cannot accept as credible Dr. White’s assumption that Claimant’s neurological symptoms began with the chipper chute incident.
19. Dr. White also addressed the causal link between the chipper chute incident and Claimant’s alleged slip and fall onto a plastic bucket at work, as follows:
In my opinion, the initial incident with the wood chipper represents the aggravating factor instigating Mr. Hill’s symptoms. Falling onto a bucket with enough force to trigger medical attention for chest pain could certainly involve a “whiplash” mechanism that could further aggravate the situation.
20. Again, the credible evidence provides no support for Dr. White’s theory that Claimant’s fall onto the plastic bucket might have involved a whiplash component. Claimant did not describe the fall in that way, either in his testimony or, more significantly, in reporting the event to his medical providers at the time.
(b) Dr. Boucher
21. At Defendant’s request, in May 2012 Dr. Boucher reviewed Claimant’s medical records. Like Dr. White, Dr. Boucher is a specialist in occupational medicine. Unlike Dr. White, he did not personally examine Claimant. Dr. Boucher rendered opinions both as to the cause of Claimant’s cervical condition and as to permanency.
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22. As to causation, Dr. Boucher acknowledged that although Claimant likely suffered from preexisting degenerative disc disease in his cervical spine, his C5-6 disc herniation was likely the result of an acute event, not merely further degeneration. In this respect, he concurred with Dr. White. However, he strongly disputed Dr. White’s conclusion that the chipper chute incident was the likely culprit. According to Dr. Boucher, for a cervical disc herniation to result from a blow to the head requires a very strong impact, one that would at least cause a visible abrasion and swelling, and more likely concussion and/or loss of consciousness as well. Even though the impact Claimant described caused him to fall and resulted in a red mark on his forehead, it was not serious enough to warrant medical treatment, and he did not mention it when, three weeks later, he first complained to his treating providers of neurological symptoms. Claimant himself treated the incident as relatively minor, and in Dr. Boucher’s opinion, rightly so. I find this reasoning persuasive.
23. As Dr. White had, Dr. Boucher theorized that Claimant’s alleged slip and fall onto a plastic bucket might have included a whiplash component, which could possibly have been a factor in causing his C5-6 disc herniation. As noted previously, the credible evidence does not provide any support for this hypothesis.
24. As for permanency, Dr. Boucher rated Claimant with a 26 percent whole person impairment rating on account of his cervical fusion surgery. Unlike Dr. White, Dr. Boucher did not add any additional impairment for ongoing cervical myelopathy. In his opinion, the numbness in his extremities and loss of balance that Claimant reported, both before and after his alleged work-related injuries, most likely resulted from peripheral neuropathy, not cervical myelopathy. According to Dr. Boucher, Claimant had a long history of alcohol dependence and abuse, and neuropathies of this type are common in such cases.
25. I find reason to doubt Dr. Boucher’s conclusion in this regard. I am skeptical, first of all, of a diagnosis reached solely on the basis of a records review, particularly one that contradicts the treating neurosurgeon’s diagnosis, both pre- and post-operatively. Second, while Claimant’s history of alcoholism is well documented in the record, none of the diagnostic testing completed at the time of his January 2010 hospitalization, including liver function studies, brain scan, CT and MRI, revealed any evidence of alcohol-related disease or associated motor disturbance. Dr. Boucher did not consider these test results to be relevant. However, Dr. White credibly explained why they made it less likely that the physical signs Claimant displayed were a consequence of alcoholism-related peripheral neuropathy, and more likely that they were indicative of cervical myelopathy. I find his reasoning on this point more persuasive than Dr. Boucher’s.
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Defense Witnesses as to Claimant’s Credibility
26. The importance that Dr. White in particular ascribed to the history Claimant reported warrants close examination of the latter’s credibility. Three witnesses testified on Defendant’s behalf on this issue – Ron Lamell, Sr., Ron Lamell, Jr. and Dennis Farley.
(a) Ron Lamell, Sr.
27. Ron Lamell, Sr. is Defendant’s president and owner. His father started the sawmill, and he began working there as a teenager. Over the years he has worked at every aspect of the business’ operation, though currently he spends most of his time in the office.
28. Mr. Lamell presented in all respects as a competent, responsible employer. His 35 employees, many of whom have been with the company for years, enjoy such benefits as health insurance, a generous profit sharing plan and Christmas bonuses. For the past four or five years, Mr. Lamell also has offered a workers’ compensation bonus program. According to this program, so long as no work-related lost-time injuries are reported during the preceding year, in addition to their Christmas bonuses employees also are paid for the holiday shut-down week. In Mr. Lamell’s experience, this program has not deterred employees from reporting work-related injuries as they occur. I find this testimony credible.
29. Mr. Lamell has known both Claimant and his father for many years. In addition to working at the mill, at times in the past Claimant had helped him work on antique cars and cut firewood. Claimant also was Mr. Lamell’s tenant, and was helping him renovate the rental property in which he lived. Mr. Lamell testified credibly that he and Claimant had long enjoyed a cordial, friendly relationship.
30. Mr. Lamell found reason to doubt Claimant’s account of having hit his head on the chipper chute, primarily because he could not believe that Claimant would have been in that area while the mill was running. The chipper machinery is particularly dangerous, and for that reason the room in which it is located is always chained off. The only time employees are instructed to clean up in that area is when the mill is shut down, on Saturday afternoons, for example. According to Mr. Lamell, for Claimant to have been shoveling chips there at the time he alleged, while the machinery was running, was prohibited.
31. At the same time, however, Mr. Lamell acknowledged that he knew Claimant to be an employee who did things his own way, including even wandering off occasionally to do whatever he thought needed to be done. I accept this characterization of Claimant’s work habits as credible.
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32. Mr. Lamell also doubted Claimant’s account of having fallen onto a plastic bucket at work on December 31, 2009. His reasons for doing so can be summarized as follows:
• According to Mr. Lamell, given the ever-present risk of a calamitous fire, open buckets of the type Claimant described were not available at the mill. Instead, only closed buckets with spouts were used to retrieve flammables such as grease or used oil from the maintenance shop;
• Claimant never reported the injury as work-related. To the contrary, when he left work early on January 4, 2010 and failed to show the next day, Mr. Lamell visited him at his home. According to Mr. Lamell, Claimant told him at that time that he had tripped over an ash bucket at home the previous Friday and hurt his ribs.
(b) Ron Lamell, Jr.
33. Ron Lamell, Jr. is the mill foreman. Like his father, he has worked there for his entire adult life. Unlike the senior Mr. Lamell, he spends most of his work day outdoors rather than in the office.
34. Mr. Lamell gave no testimony as to Claimant’s first alleged injury, involving the chipper chute. As to the second injury, Mr. Lamell testified that Claimant told him on Monday, January 4, 2010 that he had slipped and fallen on an ash bucket at home and jammed his ribs. Later that day, he left work early and never returned.
35. In late February 2010 Mr. Lamell visited Claimant at his home, to inquire as to his medical status and particularly, whether and when he might be planning to return to work. Claimant’s response was vague and indefinite, whereupon Mr. Lamell presented him with a letter terminating his employment. During the course of their conversation, Mr. Lamell never asked whether Claimant’s condition was in any way work-related, nor did Claimant ever volunteer that it was.
36. Claimant testified that the reason he did not report either having hit his head on the chipper chute or having fallen in the mill yard as work-related accidents was because he did not want to disqualify his co-employees from receiving their year-end workers’ compensation bonus. This reasoning might explain why he was reluctant to make a workers’ compensation claim initially. I cannot accept it as a credible explanation for his failure to do so after February 2010, when his employment for Defendant terminated. Indeed, at that juncture, rather than pursuing a claim for workers’ compensation benefits Claimant filed instead for unemployment compensation. Because he was as yet medically unable to work, his claim was denied. It was still some eight months after that before he first alleged having been injured at work. This he did by way of a Notice of Injury and Claim for Compensation (Form 5) filed by his attorney in November 2010.
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(c) Dennis Farley
37. Dennis Farley has been employed at the sawmill for 30 years. He recalled drinking coffee and chatting with Claimant in the break room on Monday, January 4, 2010, their first morning back at work after the holiday shut-down. According to Mr. Farley, Claimant told him that he had been working with sheetrock at home over the weekend and had hurt his neck. To Mr. Farley’s eye, however, Claimant did not look like he had hurt either his neck or his ribs.
Claimant’s Intellectual Functioning and Possible Memory Deficits
38. In the years since his alleged work injuries, Claimant has struggled at times with major depression.6 In the context of one such episode, in April 2011 he was hospitalized for more than two weeks for acute in-patient psychiatric treatment. In the course of that hospitalization, he underwent neuropsychological testing. Although the final report from that evaluation was not made part of the joint medical exhibit, preliminary results suggested that he suffered from longstanding memory deficits and other intellectual impairments. Notably, Claimant was described as being confident in his ability to recall information even though he did so incorrectly.
39. That Claimant was a vague historian is apparent from the medical records. The discrepancy between the history he reported to the walk-in clinic providers on January 4, 2010 and the one he reported only three days later has already been noted, see Finding of Fact No. 11, supra. Having closely evaluated his credibility as a witness, I can find no reason to believe that he concocted out of whole cloth either the chipper chute incident or the incident in which he fell on a bucket and injured his chest. That said, I have no confidence, and therefore cannot find, that those events occurred when and where he says they did, or that they led directly to the symptoms from which he subsequently complained.
CONCLUSIONS OF LAW:
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). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the 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 the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
6 The disputed claims in the pending litigation were limited solely to the compensability of Claimant’s cervical injury. Whether his bouts with depression are causally related has not yet been put in issue.
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2. This claim turns entirely on Claimant’s credibility in describing two alleged work-related incidents, both unwitnessed, followed by a ten-month delay prior to asserting a claim for workers’ compensation benefits. In such instances, the trier of fact must evaluate the factual evidence carefully so as to explore any inconsistencies. Whether these are due to “hidden or not-so-hidden motivations,” Fanger v. Village Inn, Opinion No. 5-95WC (April 20, 1995), or merely to faulty recollections, if a claimant cannot sustain his burden of proving that the relevant events occurred as and when he alleges they did, his claim must fail.
3. The commissioner has in the past enumerated four questions to assist in the process of evaluating a claimant’s credibility in such claims. First, are there medical records contemporaneous with the claimed injury and/or a credible history of continuing complaints? Second, does the claimant lack knowledge of the workers’ compensation reporting process? Third, is the work performed consistent with the claimant’s complaints? And fourth, is there persuasive medical evidence supporting causation? Jurden v. Northern Power Systems, Inc., Opinion No. 39-08WC (October 6, 2008); Larrabee v. Heavensent Farm, Opinion No. 13-05WC (February 4, 2005), citing Seguin v. Ethan Allen, Opinion No. 28S-02WC (July 25, 2002).
4. The contemporaneous medical records here do not help Claimant’s cause as to either of the work-related incidents he has alleged. They make no mention whatsoever of the chipper chute incident, and report vague and inconsistent histories as to both the timing and mechanism of his fall onto a bucket some three weeks later. The chronology of the symptoms Claimant reported at the time is likewise confused and variable. And while Claimant exhibited a credible history of continuing complaints after his cervical injury was discovered, this is of no use in determining what came before that injury.
5. No evidence was produced in answer to the second question listed above, whether Claimant lacked knowledge of the workers’ compensation reporting process. Claimant was aware of Defendant’s workers’ compensation bonus program, and testified that he was deterred from reporting his injuries as work-related for fear of disqualifying his co-employees from receiving their bonuses. As noted above, Finding of Fact No. 36, supra, I cannot accept this as a credible explanation for his decision to delay for as long as he did.
6. Was the work Claimant was performing at the time of the alleged incidents consistent with his subsequent complaints? Notwithstanding Mr. Lamell, Sr.’s credible testimony that Claimant should not have been working in or around the chipper chute while the mill was running, I can accept that on some day during the week before Christmas he likely did so nevertheless. I can also accept that he hit his head on the chute, in exactly the manner he alleged. What I cannot accept is that that event led immediately to the neurological symptoms he later described. I simply cannot believe that Claimant would have failed to mention the chipper chute incident to his medical providers had the temporal link to those symptoms been as obvious as he later asserted. I thus conclude that the work he was performing at the time does not credibly account for his subsequent complaints.
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7. As for the second alleged incident, I conclude that Claimant has failed to sustain his burden of proving that the event occurred at work rather than at home. Considered against Mr. Lamell, Sr.’s credible testimony regarding the ever-present risk of fire at a sawmill, Claimant did not adequately explain how he came to be carrying a flammable substance in an open container there. Nor did he once report the fall as having occurred at work, either to his medical providers, to Mr. Lamell, Sr. or to Mr. Lamell, Jr. It may be that despite these inconsistencies Claimant’s version of events is accurate nonetheless, but in the end I am unconvinced.
8. Conflicting testimony was offered as to the final factor, whether the medical evidence supports work-related causation. Dr. White acknowledged that his causation opinion was based entirely on factual assumptions as to both the mechanism of Claimant’s alleged chipper chute injury and the chronology of his subsequent symptoms. Dr. Boucher credibly assailed the first assumption, explaining why, given Claimant’s own description of the incident, it was doubtful that he hit his head with enough force to cause a cervical disc herniation. Lacking persuasive evidence to support a clear temporal link between that event and the neurological symptoms Claimant later reported I must reject Dr. White’s second assumption as well.
9. Even assuming that the second alleged incident, involving the fall onto a bucket, occurred at work rather than at home, the medical evidence establishing a causal link is similarly unconvincing. Both Dr. White and Dr. Boucher theorized that a fall of this type might have included a whiplash component, but their testimony was purely speculative, and unsupported either by Claimant’s own description of the event or by the contemporaneous medical records.
10. Considering the totality of the evidence, and with due regard for the questions raised in cases such as this, I conclude that Claimant has failed to sustain his burden of proving that either of the work-related incidents he alleged were the likely triggers for his cervical injury. Therefore, his claim for workers’ compensation benefits must fail.
11. Having concluded that Claimant’s cervical condition is not compensable, I need not decide which of the two permanency opinions offered is the most credible. I note nevertheless that Dr. White benefitted from having personally examined Claimant, and therefore was better able to evaluate his current symptoms. To the extent this informed his decision to add an additional impairment for ongoing cervical myelopathy, whereas Dr. Boucher failed to do so, I already have found Dr. White’s rating to be the more credible one. See Finding of Fact No. 25, supra.
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12. Claimant having failed to prevail on his claim for benefits, he is not entitled to an award of costs and attorney fees.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for workers’ compensation benefits causally related to his cervical condition is hereby DENIED.
DATED at Montpelier, Vermont this 14th day of November 2012.
_______________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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Scott Davis v. Wal-Mart (May 16, 2012)

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

Scott Davis v. Wal-Mart (May 16, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Scott Davis Opinion No. 14-12WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Wal-Mart
For: Anne M. Noonan
Commissioner
State File No. Z-52910 OPINION AND ORDER
Hearing held in Montpelier, Vermont on December 13, 2011
Record closed on March 15, 2012
APPEARANCES:
Ronald Fox, Esq., for Claimant
Marion Ferguson, Esq. and Glenn Morgan Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant entitled to permanent total disability benefits as a consequence of his August and September 2007 compensable work injuries?
2. If not, is Claimant entitled to permanent partial disability benefits as a consequence of his August and September 2007 compensable work injuries?
3. Is Claimant entitled to additional medical benefits as a consequence of his August and September 2007 compensable work injuries?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Vocational assessment, May 27, 2011
Claimant’s Exhibit 2: Curriculum vitae, Mark Bucksbaum, M.D.
Claimant’s Exhibit 3: Curriculum vitae, James Parker
Claimant’s Exhibit 4: Curriculum vitae, Louise Lynch
Claimant’s Exhibit 5: Photo of Claimant with deer
Claimant’s Exhibit 6: Correspondence to Dr. Wieneke, February 7, 2008
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Defendant’s Exhibit A: Photo of Claimant with deer
Defendant’s Exhibit B: Correspondence to Claimant, February 25, 2008
Defendant’s Exhibit C: Correspondence to Wendy Madigan, March 5, 2008
Defendant’s Exhibit D: Correspondence to Claimant (undated)
Defendant’s Exhibit E: Curriculum vitae, Kuhrt Wieneke, M.D.
CLAIM:
Permanent total disability benefits pursuant to 21 V.S.A. §644
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Medical benefits pursuant to 21 V.S.A. §640
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant is currently 33 years old. He began working at Defendant’s Bennington, Vermont store as an overnight stocker in 2002. He excelled at his job and over the course of the ensuing five years was regularly promoted – first to inventory control specialist, then to customer service manager, then to sporting goods department manager, and then to assistant manager at Defendant’s Pittsfield, Massachusetts store. Claimant returned to the Bennington area for personal reasons in January 2007, whereupon he resumed his prior position as sporting goods department manager in the Bennington store.
Claimant’s Prior Medical History
4. Claimant stands at 6 feet, 1 inch tall. He has struggled with obesity since elementary school. In high school he weighed 380 pounds. With diet and exercise, he lost some weight thereafter, down to approximately 350 pounds in March 2006, but by September 2007 it had increased again, back up to 385 pounds. In February 2008 he weighed 395 pounds. By February 2010, he weighed 491 pounds. As of September 2011 he weighed more than 500 pounds.
5. Claimant was diagnosed with both diabetes and high blood pressure in 2006. He also suffers from chronic gastroesophageal reflux disease (GERD), edema and peripheral neuropathy.
6. According to the medical records, Claimant has a strong family history of obesity. Both of his parents are obese, as are two of his three siblings. His father, mother and four maternal aunts and uncles suffer from diabetes.
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7. Despite his obesity and related medical issues, as of August and September 2007 Claimant was fully able to work and engage in activities of daily living. He enjoyed hiking, camping, fishing, four-wheeling, going places and reading. He could walk, bend, kneel and squat without limitation.
Claimant’s August and September 2007 Work Injuries
8. In late August 2007 Claimant was assisting a co-employee to retrieve an elliptical machine from a high shelf. The machine, which was boxed, weighed between 80 and 100 pounds. As the co-employee, who was standing on a ladder, handed the box down to Claimant, it slipped from his grasp, dropped 1 or 2 feet and struck Claimant on the left side of his head and neck. Claimant felt a sharp pain in his neck, but shook it off and continued working.
9. Claimant reported the incident to Defendant’s human resources department. He remained at work, but gradually developed pain in his right shoulder, particularly with lifting. Then, on September 3, 2007 he was walking through the store when he tripped over the edge of a pallet and fell backwards onto a mobile staircase. Claimant hit both his neck and lower back on two of the staircase’s stability bars.
10. Claimant lay on the floor for some time, as he was in extreme pain. He screamed for help, but no one heard his cries. Ultimately he managed to get to the employee break room. A co-employee called the assistant manager, and Claimant called his wife, who took him to the hospital emergency department.
Claimant’s Post-Injury Medical Course
11. Initially Claimant treated with Dr. Whittum, an orthopedist. He also consulted with Dr. Hazard, another orthopedist, at Dartmouth Hitchcock Medical Center. Claimant’s symptoms included right shoulder and neck pain and low back pain with numbness extending into his lower extremities. A lumbar MRI study revealed chronic degenerative disc disease at both L4-5 and L5-S1, likely aggravated by more recent trauma and including some nerve root compression as well. A cervical MRI failed to reveal any clear nerve root impingement. Claimant’s shoulder symptoms were attributed either to acute bursitis and/or to a possible rotator cuff tear.
12. Claimant has undergone only limited treatment for his work injuries. He was unable to complete a course of physical therapy due to pain complaints, and could not undergo epidural steroid injections because of his large body mass. Neither the lumbar nor the cervical MRI scans suggested surgery as an appropriate treatment option. At one point Dr. Hazard suggested that Claimant consider pursuing a functional rehabilitation approach, but Defendant refused to authorize an evaluation. From the credible medical evidence, I find that such an approach was unlikely to be successful in any event. See Finding of Fact No. 37, infra.
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13. Numerous independent medical evaluators, including Dr. Wieneke, Dr. McLarney and Dr. Kinley, have commented on the fact that Claimant’s pain complaints are non-verifiable and, for the most part, subjective. In multiple examinations he has exhibited positive Waddell’s signs, including give-away weakness, hypersensitivity, unreliable range of motion and non-physiologic pain radiation. Claimant exhibited some of these signs in the context of two functional capacity evaluations as well, one in October 2008 and another in March 2011. Such signs are indicative of a psychological or non-organic component to his pain, but do not necessarily signify malingering or deception.
14. Currently Claimant manages his pain with narcotic and other medications. He is largely inactive on most days. He reports constant low back pain and fatigue. He rarely leaves his house and spends most of his time alternating between sitting in his recliner and standing. He walks to his mailbox daily, a distance of 20-25 yards; the excursion typically takes him almost 30 minutes to complete. Because he has difficulty focusing, he no longer reads to the extent that he used to, and can only sit at his computer for brief intervals. His sleep is not restorative, and he suffers from sleep apnea. He is severely deconditioned, from both a muscular and a cardiovascular standpoint. He cannot bend over or tie his shoes.
15. The medical evidence establishes that many of Claimant’s current deficits are due primarily to his obesity. His obesity is to blame for the fact that he is severely deconditioned cardiovascularly, for example. In addition, both his difficulty focusing and his fatigue are likely a consequence of his sleep apnea, which is itself a consequence of his obesity.
Claimant’s 2010 Weight Loss Efforts
16. At his primary care provider’s referral, in February 2010 Claimant began treatment in the Albany Medical Center’s Bariatric Surgery & Nutrition program. At the time he weighed 491 pounds, an increase of 106 pounds in the two and a half years since his 2007 work injuries. Claimant’s goal in attending this program was to lose sufficient weight – approximately 50 pounds – to be eligible for weight loss surgery. As reported in the program records, his motivation was “to extend his life and lose weight and hopefully eliminate diabetes and hypertension and possibly to relieve his back pain.”
17. Claimant was monitored in the bariatric program, in terms of both diet and exercise, by a clinical dietician, a bariatric surgeon and a clinical nutritionist. Upon entering the program he reported that despite his chronic low back and neck pain he already was exercising, walking 30 minutes daily four days per week.
18. By the end of April 2010 Claimant had lost 12 pounds. Again, despite his chronic low back and neck pain he was still walking regularly, and had added squats and wall pushups to his exercise regimen as well.
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19. By May 2010 Claimant was reporting “no difficulty” with brisk, 40-minute daily walks. Unfortunately, however, he had gained two pounds in little more than a week, possibly as a result of edema in his ankles. Notwithstanding this setback, Claimant reported that he was still compliant with both his diet and his walking regimen.
20. In early June 2010 Claimant reported that his back pain precluded him from walking more than 40 minutes daily, but that he was able to maintain that amount, with two hills included. His edema had worsened, however, and in the intervening month he had gained an additional five and a half pounds. Claimant was advised to consult with his primary care physician about his blood pressure and edema, but otherwise to continue with his current diet and exercise program.
21. Two days later, Claimant presented to the hospital emergency room complaining of increased edema and burning pain in his right lower leg. The next day he followed up with his primary care physician, who attributed the condition primarily to his weight, and possibly aggravated by a recent salty meal he had eaten.
22. By mid-July 2010 Claimant was reporting to his primary care physician that his lower extremity edema had worsened to the point that he could not even walk up a flight of stairs. The following week he reported to his bariatric program nutritionist that he had been rendered sedentary because of the condition. Claimant had gained another five and a half pounds since June, and now weighed 493 pounds, two pounds more than when he had entered the program in February. As Claimant consistently had reported that he was vigilant with his diet throughout this period, it seems likely that his weight gain was largely attributable either to his edema itself and/or to his inability to exercise as a result.
23. Claimant did not schedule his planned follow-up appointments, and did not participate further in the bariatric program after mid-July 2010. Although the record is somewhat unclear as to exactly why he dropped out, I find that it was in no way connected to his work-related injuries.
24. With a change in medications, by October 2010 Claimant’s edema had improved. He did not resume his exercise regimen, however. By the time of his March 2011 functional capacity evaluation he became extremely short of breath after walking just 150 feet, and needed three rest breaks in a span of three minutes to do so. There having been no reported change in his chronic low back pain during the intervening months, I find that this reduced capacity likely was not due to any worsening of his work-related injuries.
6
Medical Opinions as to the Extent of Claimant’s Permanent Partial Impairment
25. Drs. McLarney, Kinley, Bucksbaum and Wieneke all have rendered permanent impairment ratings relative to Claimant’s work-related neck, shoulder and lower back injuries. Drs. McLarney and Bucksbaum were retained by Claimant to do so; Drs. Kinley and Wieneke did so on Defendant’s behalf.
(a) Dr. McLarney
26. Dr. McLarney is an orthopedic surgeon. She conducted an independent medical evaluation of Claimant, at his attorney’s request, in April 2009.
27. Dr. McLarney diagnosed Claimant with the following conditions attributable to his work-related injuries:
• Right upper extremity cervical radiculopathy, without identifiable cause on MRI;
• Right shoulder weakness consistent with either rotator cuff tendinopathy or tear; and
• Chronic low back pain with L4 radiculopathy.
28. With reference to the AMA Guides to the Evaluation of Permanent Impairment (5th ed.), Dr. McLarney assessed the following permanent impairment ratings attributable to these injuries:
• An 8 percent whole person impairment attributable to Claimant’s cervical spine, based on non-verifiable radicular complaints without objective findings (DRE cervical category II);
• A 12 percent whole person impairment attributable to range of motion deficits in Claimant’s right shoulder; and
• An 8 percent whole person impairment attributable to Claimant’s lumbar spine, based on asymmetric loss of range of motion and non-verifiable radicular complaints (DRE lumbar category II).
29. Dr. McLarney failed to specify whether she complied with the protocol mandated by the AMA Guides for consistently and reliably measuring a patient’s range of motion. Nor did she combine her ratings to achieve a final whole person impairment, as is also required by the Guides.1 For these reasons, I find her analysis to be incomplete.
1 Under Vermont law, the basis for calculating permanency benefits differs with respect to injuries referable to the spine as opposed to those referable to other body parts. 21 V.S.A. §§648(a) and (c); Workers’ Compensation Rule 11.2000. As to Dr. McLarney’s rating, therefore, only the cervical and lumbar spine ratings should have been combined as required by the AMA Guides; the right shoulder rating would then be added in separately. Workers’ Compensation Rule 11.2220.
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30. Barring Claimant’s possible participation in a multidisciplinary pain clinic, Dr. McLarney determined that he had reached an end medical result as of the date of her evaluation, April 9, 2009.
(b) Dr. Kinley
31. Dr. Kinley, an orthopedic surgeon, evaluated Claimant at Defendant’s request in July 2009.
32. Dr. Kinley diagnosed Claimant with a cervical strain causally related to his work injuries, for which he found no ratable impairment. Nor did he rate any impairment for the right shoulder, as he concluded that Claimant’s range of motion testing was completely subjective and therefore unreliable.
33. Dr. Kinley did find some permanent impairment referable to Claimant’s lumbar spine, but his 9 percent whole person rating was calculated according to the 6th edition of the AMA Guides rather than the 5th edition, as is required by Vermont law, 21 V.S.A. §648(b). For that reason, I cannot consider it.
(c) Dr. Bucksbaum
34. At Claimant’s request, Dr. Bucksbaum conducted an independent medical examination in April 2011. Dr. Bucksbaum is board certified in physical and rehabilitative medicine.
35. Dr. Bucksbaum rated the permanency attributable to Claimant’s work-related injuries as follows:
• A 5 percent whole person impairment attributable to Claimant’s chronic cervical sprain/strain (DRE cervical category II);
• An 8 percent whole person impairment attributable to Claimant’s chronic right rotator cuff injury with residual loss in range of motion; and
• An 8 percent whole person impairment attributable to Claimant’s chronic mechanical low back pain (DRE lumbar category II).
36. Using the AMA Guides’ combined values chart, Dr. Bucksbaum determined that the total whole person impairment referable to Claimant’s work-related injuries was 19 percent.2
37. Dr. Bucksbaum specifically noted in his report that his range of motion measurements were calculated in compliance with the Guides’ protocol. For that reason, although their analyses were quite similar I find that Dr. Bucksbaum’s impairment rating is more reliable, and therefore more persuasive, than Dr. McLarney’s.
2 As noted in footnote 1 supra, though consistent with the AMA Guides’ protocol, in order to comply with Vermont law Dr. Bucksbaum should not have combined all three impairments to arrive at a final rating, but rather only the two attributable to the spine.
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38. Dr. Bucksbaum determined that Claimant had reached an end medical result for his work-related injuries by the date of his evaluation, April 20, 2011. He did recommend that Claimant pursue bariatric surgery options and also that he maintain a home exercise program, but these recommendations were directed at prolonging Claimant’s life, not at treating his work injuries. Dr. Bucksbaum expressed doubt that the type of multidisciplinary functional restoration program first suggested by Dr. Hazard in 2007 and later reiterated by Dr. McLarney would be effective at increasing Claimant’s work capacity or otherwise improving his condition. I find his reasoning in this regard credible.
(d) Dr. Wieneke
39. At Defendant’s request, Dr. Wieneke conducted an independent medical examination for the purposes of rating Claimant’s permanent impairment in September 2011.3 Dr. Wieneke is a board certified orthopedic surgeon.
40. Dr. Wieneke diagnosed Claimant with chronic neck and right shoulder girdle pain and low back pain. Having observed no positive findings either on clinical examination or on diagnostic studies, Dr. Wieneke found no ratable impairment to Claimant’s cervical spine. Nor did he rate any impairment to Claimant’s right shoulder. As for Claimant’s lower back, Dr. Wieneke rated a 5 percent whole person impairment based on non-verifiable radicular pain (DRE lumbar category II).
41. Dr. Wieneke admitted in his deposition testimony that he did not use the protocol mandated by the AMA Guides for measuring the extent of any range of motion deficits, as Dr. Bucksbaum did. For that reason, I find his impairment rating to be less reliable.
Medical Opinions as to Work Capacity and Permanent Total Disability
42. Claimant has not worked since his September 3, 2007 injury. Initially his treating providers disabled him from working, and Defendant paid temporary total disability benefits accordingly.
(a) Discontinuance of Temporary Disability and Medical Benefits
43. At Defendant’s request, in early February 2008 Claimant underwent an independent medical examination with Dr. Wieneke. In the context of this evaluation Dr. Wieneke recommended that Claimant undergo further diagnostic studies to rule out cervical radiculopathy. If the results were negative, Dr. Wieneke stated that Claimant would be able to return to work, first as a greeter and then at his regular job.
3 Claimant underwent a prior independent medical examination with Dr. Wieneke, also at Defendant’s request, in February 2008. See Finding of Fact No. 43, infra.
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44. Shortly after making this recommendation, in mid-February 2008 Dr. Wieneke was presented with a photograph that purported to show Claimant exhibiting a deer he had killed during the October 2007 bow hunting season. Upon viewing the photo, Dr. Wieneke revised his opinion as to work capacity. If Claimant was capable of the type of physical activity required to successfully hunt a deer, Dr. Wieneke reasoned, then he was capable of returning to work full-time, at least as a greeter and probably at his regular job as well.
45. In fact, Claimant did not hunt or kill the deer depicted in the photograph. According to his testimony, which I find credible, an acquaintance had shot the deer, but because he lacked the proper license, or “tag” for it, he asked Claimant to use his tag instead. Even though this was an illegal use of Claimant’s tag, he agreed to do so. He thus accompanied the friend to the weigh station and was photographed with the tagged deer.
46. Notwithstanding this explanation of events, and based instead on Dr. Wieneke’s revised work capacity opinion, on February 25, 2008 Defendant wrote to offer Claimant light duty work as a greeter. Claimant did not respond. Thereafter, Defendant filed a Notice of Intent to Discontinue Payments (Form 27), in which it sought to terminate Claimant’s temporary total disability benefits effective March 6, 2008 on the grounds that he had refused a suitable offer of modified duty work. The Department rejected the discontinuance. Having found that Dr. Wieneke’s revised opinion was based on a faulty premise, that is, that Claimant had shown himself to be capable of hunting when in fact he was not, I find that it was proper for the Department to do so.
47. Following a medical records review by Dr. Rosati, an occupational medicine specialist, in November 2008 Defendant again sought to terminate Claimant’s temporary total disability benefits on the grounds that he was capable of returning to modified duty work as a greeter and had failed to do so when requested. Defendant also sought to discontinue Claimant’s narcotic pain medications, based on Dr. Rosati’s assessment that these constituted inappropriate treatment for complaints that were unconfirmed by MRI studies. This time the Department approved the discontinuance, effective November 27, 2008.
48. Claimant’s new primary care provider, Mark Schiffner, a physician’s assistant, disagreed with Dr. Rosati’s assessment as to Claimant’s modified duty work capacity. Mr. Schiffner had only recently assumed Claimant’s care, and had not yet reviewed his medical history. Nevertheless, he recommended that Claimant remain out of work “until further notice.” Mr. Schiffner failed to specify the rationale behind his recommendation, and therefore I find it to be relatively unpersuasive. Instead, based on Dr. Rosati’s records review I find that Claimant’s temporary total disability benefits were appropriately terminated in November 2008.
49. I find that Dr. Rosati’s records review did not provide sufficient support for Defendant to have discontinued Claimant’s narcotic pain medications, however. Dr. Bucksbaum has recommended that so long as Claimant continues to be monitored with periodic urine toxicology and appropriate laboratory studies, his prescribed medications constitute reasonable and appropriate treatment. I find this reasoning persuasive.
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(b) Functional Capacity Evaluations
50. Claimant has undergone two functional capacity evaluations – the first in October 2008 with Robb Wright, an occupational therapist, and the second in March 2011 with Louise Lynch, a physical therapist.
51. Claimant’s performance on the October 2008 functional capacity evaluation was striking for its unreliable results. According to Mr. Wright, Claimant demonstrated subjective limitations that were incongruous and out of proportion to his presenting musculoskeletal challenges. His pain sense and perception of disability were maladaptive. Perhaps most disturbing, to Mr. Wright’s observation Claimant made no effort to adapt, compensate or explore ways in which to enhance his ability or tolerance. To the contrary, he consistently self-limited and on at least one test appeared actively to under-represent his ability level.
52. In light of Claimant’s unreliable effort in testing, Mr. Wright felt unable to fully understand or appreciate the extent of his low back and right shoulder complaints. Nor was he able to delineate those complaints from the ones attributable to Claimant’s gross obesity, poor conditioning and cardiovascular challenge. Thus, although Mr. Wright categorized Claimant’s work capacity as “none/undetermined to sedentary,” he emphasized that this was intended only as a description of Claimant’s performance, not as an accurate determination of his functional capacities. I concur.
53. Claimant was determined to have a less than sedentary work capacity following Ms. Lynch’s March 2011 functional capacity evaluation as well, but this time his performance was not deemed nearly as unreliable as it had been with the earlier testing. Ms. Lynch observed that Claimant was willing to attempt all activities, but needed verbal cues and encouragement to exhibit full effort. Without implying any bad motive or intent, Ms. Lynch concluded from this that Claimant likely was capable at times of doing more physically than he demonstrated. I find her conclusion in this regard to be credible.
54. Claimant’s activity level, both as he reported it and as demonstrated during Ms. Lynch’s testing, was markedly less than what he had been able to achieve and maintain a year earlier, when he was engaged in the Albany Medical Center bariatric program. He was extremely short of breath and sweaty, even when sitting, and severely limited in walking. His endurance level and cardiovascular conditioning were poor as well.
55. Ms. Lynch concluded that Claimant’s functional limitations precluded even sedentary work. She attributed these deficits to Claimant’s work injuries, stating that they “[have] led to significant cardiovascular and muscular deconditioning and weight gain that make most daily functional activities difficult.” Notably, I cannot discern from the record whether in reaching this conclusion Ms. Lynch was aware of Claimant’s exercise tolerance while in the Albany Medical Center bariatric program. Given that it was Claimant’s edema, a condition related solely to his other medical issues and not at all to his work injuries, that caused him to curtail his activities while in that program, I must question her conclusion that the latter are to blame for his current limitations.
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(c) Claimant’s Vocational Rehabilitation Prospects
56. In the opinion of his vocational rehabilitation expert, James Parker, the multiple disabilities and related functional limitations from which Claimant suffers have effectively disabled him from regular gainful employment in any well known branch of the labor market.
57. Mr. Parker based his assessment of Claimant’s vocational prospects in large part on the results of Ms. Lynch’s March 2011 functional capacity evaluation. I do not discern from Mr. Parker’s analysis any consideration of the extent to which Claimant may have self-limited his activity level in that testing, as even Ms. Lynch observed. Mr. Parker acknowledged, furthermore, that chronic pain, which Claimant identified as his most significant limiting factor, is difficult to quantify. Nevertheless, I find that there is sufficient objective evidence in Ms. Lynch’s evaluation, including notations as to Claimant’s heart rate, sweaty skin and shortness of breath, to justify Mr. Parker’s reliance on that report. Certainly, to the extent that Claimant’s severe deconditioning, fatigue and endurance levels impact his ability to sustain work activities, I accept that these pose significant, and likely insurmountable, vocational barriers.
(d) Permanent Total Disability
58. In the context of his April 2011 independent medical examination, Dr. Bucksbaum concluded, to a reasonable degree of medical certainty, that Claimant’s neck, right shoulder and low back injuries were causally related to his August and September 2007 accidents at work. Based both on Ms. Lynch’s determination that Claimant is unable to work at even a sedentary level, and on his own determination that Claimant has reached an end medical result for his work-related injuries, Dr. Bucksbaum further concluded that Claimant is now permanently and totally disabled. I find that these conclusions are adequately supported by the credible evidence.
59. As to the causal relationship between Claimant’s work injuries and his permanent inability to work, Dr. Bucksbaum’s opinion is somewhat less clear. Dr. Bucksbaum attributes only 65 pounds (approximately one-half) of Claimant’s post-injury weight gain to inactivity; the rest, in his opinion, is a consequence of Claimant’s dietary habits. Dr. Bucksbaum did not state any opinion as to whether Claimant would have been permanently and totally disabled had his weight gain been limited only to that attributable to his work injuries and not also to his food intake. I find this gap in his reasoning troublesome.
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60. Equally troublesome is Dr. Bucksbaum’s failure to address the increased activity level that Claimant demonstrated while enrolled in the Albany Medical Center bariatric program in 2010. Given his own training in nutrition and weight loss, which includes membership in the American Society of Bariatric Physicians, I would have expected Dr. Bucksbaum to scrutinize closely the reasons behind Claimant’s failed weight loss attempt in that program. More importantly, I would have expected Dr. Bucksbaum to explain why either the chronic pain and/or the weight gain attributable to Claimant’s 2007 work injuries would be causing such an extreme degree of inactivity now when they did not do so in 2010. Again, the fact that Dr. Bucksbaum did not address these issues renders his opinion as to the causal connection between Claimant’s work injuries and his permanent total disability less persuasive.
Claimant’s Credibility
61. Defendant cited to various incidents in Claimant’s past that it alleges indicate a pattern of dishonesty serious enough to call his credibility into question. These include:
• The incident referred to above, Finding of Fact No. 45 supra, in which Claimant allowed his own deer tag to be used to weigh in and register his friend’s kill, even though he knew it was illegal to do so;
• Claimant’s acceptance of wages paid “under the table” by a former employer; and
• Claimant’s use of a separate address (the basement of his parent’s home) as a means of qualifying for food stamps and fuel assistance even though he did not actually live there.
62. I agree with Defendant that these instances of questionable conduct demonstrate a disturbing tendency on Claimant’s part either to mislead authorities and/or to flaunt the law for financial gain. I also agree that these events provide good cause for me to examine closely Claimant’s assertions as to his chronic pain and inability to function. I will not go so far, however, as to conclude that he is purposely exaggerating his pain complaints or intentionally faking his disability.
CONCLUSIONS OF LAW:
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). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the 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 the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
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2. In addition to establishing the connection between a claimant’s injury and his or her employment, another prerequisite to any workers’ compensation award is proof of a causal nexus between the injury and the specific benefits claimed. This applies to both medical and indemnity benefits. See, e.g., Mujic v. Vermont Teddy Bear Factory, Opinion No. 04-12WC (February 7, 2012); Pitaniello v. GE Transportation, Opinion No. 03-08WC (January 17, 2008).
Permanent Total Disability
3. Claimant’s claim for permanent total disability benefits is based on his assertion that the chronic pain and inactivity attributable to his work injuries combined with his preexisting obesity to cause him to become totally incapacitated from ever maintaining regular gainful employment. Should the medical evidence establish, to the required degree of medical certainty, that the work injuries did in fact aggravate, accelerate or otherwise contribute to cause Claimant’s ultimate disability, then he will have laid the appropriate foundation for this claim. Jackson v. True Temper Corp., 151 Vt. 592 (1989).
4. Claimant points to Dr. Bucksbaum’s opinion to establish the required connection. Dr. Bucksbaum did conclude, to a reasonable degree of medical certainty, that Claimant’s inactivity from September 2007 forward likely caused him to gain approximately 65 pounds. I have no reason to doubt this conclusion.
5. What I do doubt, however, is Dr. Bucksbaum’s conclusion that Claimant’s inactivity, and therefore 65 pounds of his weight gain, was attributable to his work injuries. To my mind, Claimant’s ability to maintain a significantly higher activity level while enrolled in the Albany Medical Center bariatric program – taking brisk, 40-minute daily walks, for example – effectively undercuts any such conclusion. That this occurred in early 2010, more than two and a half years after the work injuries and by which point Claimant already had gained 106 pounds, means that notwithstanding any injury-related sequelae he was capable of walking, standing, squatting and moving about to a far greater extent than he is now. There being no evidence that Claimant’s work-related injuries have worsened since 2010, I can only attribute the dramatically increased functional limitations he now exhibits to other, non-injury-related factors.
6. Similarly, I find significant the fact that, after his initial success in the bariatric center program, Claimant’s weight loss efforts were derailed not by any work injury-related complications or consequences, but rather by a serious bout of edema. Again, I conclude from this that Claimant’s work injuries were not a factor in his subsequent decline.
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7. I acknowledge that aside from Defendant’s assertion that Claimant may have been exaggerating his subjective pain complaints, the evidence as to his current functional limitations and vocational rehabilitation potential was largely undisputed. The most significant of these limitations, however, and the ones that impact most upon his vocational potential, relate to Claimant’s limited endurance, severe deconditioning and fatigue levels, deficits that I cannot attribute to his work injuries. Thus, while I reasonably can conclude that Claimant likely is permanently and totally disabled, I cannot conclude that this disability was caused, aggravated or accelerated by his compensable work injuries. For that reason, his claim for permanent total disability benefits must fail.
Permanent Partial Disability
8. Conflicting medical evidence was submitted as to the extent of Claimant’s permanent partial disability. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
9. With particular reliance on the third factor, I conclude that Dr. Bucksbaum’s permanency opinion is the most credible. Dr. Bucksbaum demonstrated the greatest familiarity with the AMA Guides and scrupulously documented his adherence to the appropriate impairment rating protocol. For that reason, his ratings are both more reliable and more persuasive than those of Drs. McLarney, Kinley or Wieneke.
10. I conclude, therefore, that as a result of his work-related injuries Claimant has sustained a 5 percent whole person permanent impairment referable to his cervical spine, an 8 percent whole person impairment referable to his lumbar spine and an 8 percent whole person impairment referable to his right shoulder.
11. I must disregard Dr. Bucksbaum’s 19 percent total combined whole person impairment rating, however, as his methodology does not comply with the requirements of 21 V.S.A. §648 and Workers’ Compensation Rule 11.2220. Taking judicial notice of the AMA Guides’ combined values chart (5th ed., p. 604), I conclude that Claimant is entitled to permanent partial disability benefits in accordance with a 13 percent whole person permanent impairment referable to his spine and an 8 percent whole person permanent impairment referable to his right shoulder.
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12. The permanency benefits so awarded constitute lump sum compensation for a permanent impairment that will affect Claimant for the rest of his life. Calculated from the date of the formal hearing, at which point he was 33 years old, according to National Vital Statistics Reports, Vol. 54, No. 14 (April 19, 2006) Claimant’s remaining life expectancy is 47 years, or 564 months. Claimant may submit a request to prorate the amounts awarded for his permanent disability in accordance with 21 V.S.A. §652.
13. Claimant has submitted a request for reimbursement of costs totaling $8,670.13 and attorney fees totaling $17,636.50.4 As Claimant has prevailed only on his claim for permanent partial disability benefits, he is entitled to an award of only those costs that relate directly thereto. Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003), citing Brown v. Whiting, Opinion No. 7-97WC (June 13, 1997).
14. I conclude that the costs billed for Ms. Lynch’s and Mr. Parker’s services, totaling $3,935.00, related solely to Claimant’s claim for permanent total disability benefits. As he failed to prevail on this claim, these costs are disallowed. The remaining costs, totaling $4,735.13, are hereby awarded.
15. As for attorney fees, in cases where a claimant has only partially prevailed, the Commissioner typically exercises her discretion to award fees commensurate with the extent of the claimant’s success. Here, Claimant prevailed only on his claim for permanent partial disability benefits, the value of which is significantly less than his unsuccessful permanent total disability claim. With that in mind, I conclude that it is appropriate to award him 30 percent of his requested fees, or $5,290.95.
4 Claimant’s fee request details 27.6 hours billed prior to June 15, 2010, for which the maximum reimbursement rate according to Workers’ Compensation Rule 10 was $90.00 per hour, and 104.5 hours billed thereafter, for which the reimbursement rate is $145.00 per hour.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Permanent partial disability benefits as compensation for a 13 percent whole person impairment referable to the spine, a total of 71.5 weeks, and an 8 percent whole person impairment referable to the shoulder, a total of 32.4 weeks, in accordance with 21 V.S.A. §648 and Workers’ Compensation Rule 11.2220;
2. Interest on the above calculated from the date when temporary total disability benefits terminated (November 27, 2008), in accordance with 21 V.S.A. §664;
3. Medical benefits for ongoing treatment of Claimant’s compensable injuries, including coverage for prescription pain medications, in accordance with 21 V.S.A. §640; and
4. Costs totaling $4,735.13 and attorney fees totaling $5,290.95, in accordance with 21 V.S.A. §675.
DATED at Montpelier, Vermont this 16th day of May 2012.
_______________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

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Curtis Smiley v. State of Vermont (June 3, 2013)

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

Curtis Smiley v. State of Vermont (June 3, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Curtis Smiley Opinion No. 15-13WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
State of Vermont
For: Anne M. Noonan
Commissioner
State File No. J-15114
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
William Blake, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant’s claim for permanent partial disability benefits referable to his
January 29, 1996 compensable work injury barred by the applicable statute of
limitations?
2. If yes, is Defendant barred from asserting the defense?
EXHIBITS:
Defendant’s Exhibit A: Dr. Thatcher medical record, July 8, 1996
Defendant’s Exhibit B: Dr. Backus report, January 20, 2011
Defendant’s Exhibit C : Dr. White report, March 24, 2011
Defendant’s Exhibit D: Case note, March 6, 1996
Defendant’s Exhibit E: Workers’ Compensation Rule 18 (effective May 15, 1996)
Claimant’s Exhibit 1: Dr. Backus report, January 20, 2011
Claimant’s Exhibit 2: Workers’ Compensation Rule 18 (effective May 15, 1996)
Claimant’s Exhibit 3: Dr. Thatcher medical record, July 8, 1996
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FINDINGS OF FACT:
The following facts are undisputed:
1. This case arises out of an accepted work injury that occurred on January 29, 1996. See
Smiley v. State of Vermont, Opinion No. 12-12WC (April 15, 2012), and exhibits
admitted therein.
2. Following a course of medical treatment with Dr. Thatcher, by July 8, 1996 Claimant had
returned to work, and overall appeared to be doing quite well. He declined physical
therapy for his lingering symptoms. Dr. Thatcher anticipated that these would continue
to improve over time, and therefore advised him to return for treatment only as needed.
3. There was no further activity on Claimant’s claim file for more than fourteen years, until
October 21, 2010. On that date, Claimant’s attorney entered his appearance.
Subsequently, the attorney advised Defendant that Claimant was pursuing a claim for
permanent partial disability benefits referable to his 1996 work injury.
4. In November and December 2010, Claimant’s attorney requested that Defendant
schedule a permanency evaluation. In response, Defendant scheduled an independent
medical evaluation with Dr. Backus, which Claimant attended on January 20, 2011.
5. Dr. Backus determined that Claimant had suffered a one percent whole person permanent
impairment referable to his 1996 work injury. Following an evaluation in March 2011,
Claimant’s own medical expert, Dr. White, also calculated his ratable impairment at one
percent.
6. Dr. Backus determined that Claimant probably had reached an end medical result for his
work-related injury “back in 1996.” Dr. White as well determined that Claimant had
reached an end medical result, but did not specify a date when this likely occurred.
7. On May 16, 2011 Defendant filed a Denial of Workers’ Compensation Benefits (Form 2),
in which it denied Claimant’s demand that permanency benefits be paid on the grounds
that his claim was time-barred.
8. On June 3, 2011 Claimant filed a Notice and Application for Hearing (Form 6) as to
whether he was entitled to permanent partial disability benefits referable to his 1996 work
injury.
9. On September 7, 2011 Defendant’s counsel filed its answer, which pled the affirmative
defense of statute of limitations.
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10. Claimant initially argued that Defendant had waived its right to assert a statute of
limitations defense by scheduling Dr. Backus’ January 2011 permanency evaluation. In a
ruling dated April 15, 2012 the Commissioner determined that Defendant’s statute of
limitations defense was still viable. Smiley v. State of Vermont, Opinion No. 12-12WC
(April 15, 2012).
11. The remaining issue is whether Claimant’s claim for permanent partial disability benefits
is in fact time-barred, and if so, whether Defendant should be barred from asserting the
defense.
DISCUSSION:
1. In order to prevail on a motion for summary judgment, the moving party must show that
there exist no genuine issues of material fact, such that it is entitled to a judgment in its
favor as a matter of law. Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25
(1996). Summary judgment is appropriate only when the facts in question are clear,
undisputed or unrefuted. State v. Realty of Vermont, 137 Vt. 425 (1979). That is the case
here.
2. The legal issues raised by this claim are similar to those that the Vermont Supreme Court
has considered in Longe v. Boise Cascade Corp., 171 Vt. 214 (2000), and Sanz v.
Douglas Collins Construction, 2006 VT 102. As in Longe, Defendant argues that
Claimant’s claim for permanency benefits is barred by the applicable statute of
limitations, because he failed to assert it within six years after reaching an end medical
result for his work-related injury.1 Also as in Longe, Claimant argues in response that
Defendant should be barred from asserting the statute of limitations as a defense because
it owed, and breached, a legal duty to investigate whether any permanent impairment had
been suffered. As in Sanz, the question whether such a duty existed depends on whether
an amended rule should be applied retroactively to govern the parties’ rights and
responsibilities in this case.
Statute of Limitations
3. According to Vermont’s workers’ compensation statute, the controlling date for
determining when the applicable statute of limitations begins to run is the “date of
injury.” 21 V.S.A. §660(a). That phrase has long been interpreted to mean “the point in
time when an injury becomes reasonably discoverable and apparent.” Longe, supra at
219, citing Hartman v. Ouellette Plumbing & Heating Corp., 146 Vt. 443, 447 (1985).
1 The statute of limitations for initiating a claim for workers’ compensation benefits has since been amended, and is
now three years. 21 V.S.A. §660(a).
4
4. Determining when an injury has become “reasonably discoverable and apparent” is a
question of fact that necessarily varies from case to case. Kraby v. Vermont Telephone
Co., 2004 VT 120, ¶6; see also, Lillicrap v. Martin, 156 Vt. 165, 172 (1989) (applying
reasonable discovery rule in medical malpractice context). Notably, a litigant “need not
have an airtight case before the limitations period begins to run,” but merely “should
have obtained information sufficient to put a reasonable person on notice that a particular
defendant may have been liable” for his or her injuries. Rodrigue v. Valco Enterprises,
169 Vt. 539, 540-41 (1999) (applying reasonable discovery rule in dram shop action).
The limitations period itself affords ample opportunity subsequently to flesh out the facts
and pursue available remedies. Id.
5. In the context of a claim for permanent partial disability benefits, the reasonable
discovery rule typically requires that the statute of limitations not begin to run until the
claimant reaches an end medical result. Kraby, supra; Longe, supra. “The claim period
can only begin to run when there is in fact something to claim,” Hartman, supra at 446.
Not every work-related injury justifies permanency compensation. Until treatment
concludes, the ongoing medical recovery process still might yield a full recovery with no
permanent impairment at all. Richardson v. Regular Veteran’s Association Post #514,
Opinion No. 04-11WC (February 16, 2011).
6. Applying these rules to the current claim, and considering the evidence in the light most
favorable to Claimant as the non-moving party, State v. Delaney, 157 Vt. 247, 252
(1991), I conclude as a matter of law that the statute of limitations on Claimant’s claim
for permanent partial disability benefits began to run on or about July 8, 1996. This was
the date on which his treating physician released him from active care, with instructions
to follow up only as needed. By this time Claimant had returned to work and there is no
evidence that he ever considered resuming treatment subsequently. The logical inference
is that both Claimant and his doctor appropriately perceived that treatment for the workrelated
injury had concluded.
7. What expert evidence there is also establishes July 1996 as the most likely end medical
result date. With no record of any subsequent treatment, Dr. Backus’ conclusion that
Claimant probably had reached the point of maximum medical improvement “back in
1996” likely refers to that timeframe. That his opinion necessarily was retrospective in
nature does not in any way disqualify it. See, e.g., Kraby, supra (treating surgeon’s
retrospective declaration of end medical result accepted as determinative).
5
8. Claimant argues that because the determination of end medical result is a medical opinion
requiring expert evidence, and because he is not an expert, he cannot be charged with
knowledge of that event sufficient to trigger the statute of limitations until an expert so
declared it. I disagree. It is true that medical expert testimony is required to establish
those elements of a workers’ compensation claim about which “a layman could have had
no well-grounded opinion,” most notably the causal relationship between an injured
worker’s employment and his or her injury. Lapan v. Berno’s, Inc., 137 Vt. 393, 395
(1979). It does not necessarily follow that a lay person can never be deemed to know
whether he or she has concluded treatment, either with or without lingering deficits or
dysfunction. Such matters are not so far beyond “the untutored understanding of the
average layman” that they are only reasonably discoverable with an expert’s assistance.
See Lillicrap, supra at 174 (noting that recipient of health care services may be aware of
fact of a “disability or dysfunction,” though admittedly not of its cause); see also, Bruno
v. Directech Holding Co., Opinion No. 18-10WC (May 19, 2010) (extension of end
medical result date not justified where claimant had failed to actively treat during period
in question).
9. As the court explained in Hartman, supra at 447, the issue raised by the reasonable
discovery standard is simply “whether the claimant had any reasonable occasion to file a
claim sooner than he did.” Though this is ordinarily a question of fact, the evidence here
is so clear as to render it a matter of law. Claimant probably would not have described
his situation in these terms, but as of July 1996 he knew, or should have known, that he
had reached an end medical result, and that whatever deficits he was left with were likely
permanent in nature. He then had six years within which to investigate and pursue his
legal remedies. Having failed to do so, I conclude that his claim for permanent partial
disability benefits is now time-barred.
Duty to Investigate
10. Notwithstanding that Claimant’s claim for permanency benefits is time-barred, Defendant
still might be precluded from asserting the statute of limitations as a defense if it is shown
to have had, and breached, a duty to investigate the extent of his permanent impairment
in a more seasonable fashion. Such a duty can be imposed either by way of an applicable
statute or rule, or by operation of the doctrines of equitable estoppel or equitable tolling.
Longe, supra at 223.
(a) The 1996 Amendments to Workers’ Compensation Rule 18
11. In 1983, when the injury under consideration in Longe occurred, neither the workers’
compensation statute nor the applicable rules imposed an affirmative duty on an
employer to investigate whether an injured worker had suffered a permanent impairment
as a result of a work-related injury. Longe, supra at 222. Nor was there any duty owed
to notify the worker of his or her right to permanency benefits. Id. at 223.
6
12. Effective May 15, 1996 the Department amended Workers’ Compensation Rule 18 and
imposed upon employers a duty to investigate the extent of an injured worker’s
permanent impairment. As amended, the rule now states:
The employer (insurer) shall take action necessary to determine whether
an employee has any permanent impairment as a result of the work injury
at such time as the employee reaches a medical end result.
. . .
A determination as to whether the claimant has any permanent impairment
shall be made within 45 days of filing the notice of termination [of
temporary disability compensation].
Workers’ Compensation Rules 18.1100 and 18.1200 (formerly Rules 18(a)(1) and
18(a)(2)).
13. Had Claimant’s work injury occurred after May 15, 1996, the effective date of these
amendments, there would be no reason to question their applicability to his pending claim
for permanency benefits. The injury at issue here occurred some five months earlier,
however, in January 1996. Under these circumstances, the question arises whether the
amendments properly should control the parties’ respective rights and responsibilities in
this case.
14. Vermont law provides that the amendment of a statutory provision “shall not affect any
right, privilege, obligation or liability acquired, accrued or incurred” prior to the
amendment’s effective date. 1 V.S.A. §214(b)(2); Myott v. Myott, 149 Vt. 573, 575-76
(1988). Phrased alternatively, this general rule of statutory construction prohibits
legislative amendments that affect substantive rights and responsibilities from being
applied retroactively. In contrast, amendments that are solely procedural can be given
retroactive effect, and therefore can be applied to claims that already are pending at the
time the new statute becomes effective. Id.
15. The Supreme Court has applied these well-established rules specifically to workers’
compensation claims. Citing to 1 V.S.A. §214, in Montgomery v. Brinver Corp., 142 Vt.
461, 463 (1983), the court declared, “The right to compensation for an injury under the
Workmen’s Compensation Act is governed by the law in force at the time of occurrence
of such injury.” The date of an employee’s work-related injury is thus the controlling
date for determining whether a substantive amendment to the statute will apply.
7
16. The court clarified what constitutes the “right to compensation” for the purposes of
determining whether a statutory amendment is substantive or procedural in Sanz, supra at
¶6. A post-injury amendment that “fundamentally changes the right to benefits or the
obligation to pay them” is substantive, and cannot be applied retroactively. An
amendment that does not fundamentally change pre-existing rights and responsibilities is
procedural, and can be applied in a pending action.2 Id.
17. The claimant in Sanz suffered a work-related injury in 1998, for which he reached an end
medical result in 2003. After some dispute regarding the extent of his permanent
impairment, in 2004 the employer accepted his claim for permanent total disability
benefits. However, it refused to honor his request that benefits be paid in a lump sum
rather than weekly. Relying on a 2000 amendment to the statute, which empowered the
commissioner to order payment in a lump sum even without the employer’s consent, the
claimant sought redress, first before the commissioner and then before the Supreme
Court. The issue was whether the amendment to the statute, which was enacted after the
claimant’s injury occurred but before his claim for permanent total disability benefits
accrued, properly governed his case.
18. Claimant premised his assertion that the amended statute applied to his circumstance on
two grounds. First, he argued that because the employer’s obligation to pay permanency
benefits did not arise until he reached an end medical result in 2003, the law in effect as
of that date should control. The court disagreed. Relying on the rule enunciated in
Montgomery, supra, it held that regardless of when a statutorily defined benefit is
required to be paid, the right to receive it – “the right to compensation” – is still acquired
at the time of the injury. Sanz, supra at ¶11. By the same token, the court continued,
“the obligation to pay those benefits is also governed by the law in force at the time of
injury.” Id.
19. Next, the claimant in Sanz argued that because the amendment in question altered only
the method by which an employer might be obligated to pay permanency benefits, but not
the obligation to pay benefits itself, it was procedural rather than substantive in nature,
and therefore could be applied retroactively to his claim. The court rejected this
argument as well. By allowing the commissioner to order an employer to discharge its
payment obligation all at once rather than gradually, it reasoned, the amendment would
“fundamentally alter” the employer’s obligation. Id. at ¶13. Just as significantly, by
awarding claimants the opportunity to use or invest a large up-front payment, the
amendment would “fundamentally change” the benefit owed them. Id. Thus, because
the amendment substantially affected both the claimant’s right to compensation and the
employer’s obligation to pay it, the court concluded that it was substantive in nature. As
a consequence, it could not be applied retroactively to injuries that predated its
enactment. Id.
2 The same substantive-versus-procedural analysis applies to amendments to the administrative rules that govern
workers’ compensation proceedings. Workers’ Compensation Rule 46.1000; see, e.g., Taft v. Central Vermont
Public Service Corp., Opinion No. 03-11WC (January 25, 2011).
8
20. Claimant here makes essentially the same arguments as were asserted in Sanz. First, he
argues that although the amendments to Rule 18 were not enacted until after his work
injury occurred, nevertheless they should govern his claim for permanency benefits
because they became effective before he reached an end medical result. The court
specifically rejected this argument in Sanz, supra at ¶11, and so I do as well.
21. Second, Claimant asserts that the amendments to Rule 18 can be applied retroactively,
because they did not alter any of the parties’ fundamental rights or obligations and
therefore are appropriately characterized as procedural rather than substantive in nature.
Again, I disagree. As the result in Longe demonstrated, both the duty to pay permanency
benefits and the duty to investigate whether such benefits are payable go to the heart of
the responsibilities owed by an employer to an injured worker. By imposing the latter
obligation on employers where clearly, according to the court in Longe, none had existed
before, the amended rule fundamentally altered each party’s respective rights and
responsibilities. As a consequence, the amendments can only be applied prospectively, to
claims involving injuries that occurred after their effective date. That is not the case here.
(b) Equitable Estoppel and Equitable Tolling
22. Having concluded that the duty to investigate imposed by the amended Rule 18 did not
apply to Defendant’s conduct here, the only other basis for excusing Claimant’s failure to
pursue his permanency claim in a timely manner is if the circumstances justify invoking
the doctrines of equitable estoppel or equitable tolling. Longe, supra at 226. The
undisputed facts do not support applying either doctrine.
23. The doctrine of equitable estoppel promotes fair dealing and good faith “by preventing
‘one party from asserting rights which may have existed against another party who in
good faith has changed his or her position in reliance upon earlier representations.’”
Beecher v. Stratton Corp., 170 Vt. 137, 139 (1990), quoting Fisher v. Poole, 142 Vt. 162,
168 (1982). At the doctrine’s core is the concept that through its conduct, the party
against whom estoppel is asserted must have intended that the other party would be
misled to his or her detriment. Id.; Longe, supra at 224.
24. Absent either a promise or some degree of fraudulent misrepresentation or concealment,
generally the doctrine of equitable estoppel will not bar a defendant from asserting the
statute of limitations as a defense to another party’s claim. Beecher, supra. In the
workers’ compensation context, estoppel applies “when the conduct or statements of an
employer or its representatives lull the employee into a false sense of security, thereby
causing the employee to delay the assertion of his or her rights.” Freese v. Carl’s
Service, 375 N.W.2d 484, 487 (Minn. 1985), quoted in Longe, supra at 224.
25. The doctrine of equitable tolling has even more limited application. It is justified only
when either “‘(1) the defendant actively misled the plaintiff or prevented the plaintiff in
some extraordinary way from filing a timely lawsuit; or (2) the plaintiff timely raised the
precise claim in the wrong forum.’” Longe, supra at 224-225, quoting Beecher, supra at
143.
9
26. Claimant has failed to assert any facts here from which I might conclude that he was
misled to his detriment as a result of Defendant’s conduct. That he was unaware of his
right to seek permanency benefits is apparent from his own failure to act, but this is not
sufficient to establish estoppel. Longe, supra. What is required is that his failure must
have been induced in some way by Defendant’s intentional conduct. There is no
evidence whatsoever that this is what occurred.
27. Even considering the evidence in the light most favorable to Claimant, I conclude as a
matter of law that neither the doctrine of equitable estoppel nor that of equitable tolling
justifies barring Defendant from asserting the statute of limitations as a defense to
Claimant’s claim for permanency benefits.
Summary
28. “The burden is generally on the party seeking relief to take some affirmative action in
order to protect his or her rights.” Longe, supra at 225. If he or she fails to do so,
thereby letting the statute of limitations expire, then “absent a legal disability or
circumstances sufficient to invoke the doctrines of equitable estoppel or equitable tolling,
he has no right to relief.” Id. at 226. Claimant here did not take action until some years
after the statute of limitations on his claim for permanency benefits had expired. His
failure to do so is not excused by any neglect of duty on Defendant’s part, nor by
circumstances sufficient to justify equitable relief in his favor. As a matter of law, his
claim is time-barred.
ORDER:
Defendant’s Motion for Summary Judgment is hereby GRANTED. Claimant’s claim for
permanent partial disability benefits referable to his January 29, 1996 work-related injury is
barred by the applicable statute of limitations and is therefore DENIED.
DATED at Montpelier, Vermont this 3rd day of June 2013.
_____________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions
of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont
Supreme Court. 21 V.S.A. §§670, 672.

09 Jul2015 Comments
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Catherine Heller v. Bast & Rood Architects (May 9, 2013)

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

Catherine Heller v. Bast & Rood Architects (May 9, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Catherine Heller Opinion No. 14-13WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Bast & Rood Architects
For: Anne M. Noonan
Commissioner
State File No. T-12409
OPINION AND ORDER
Hearing held in Montpelier, Vermont on March 11, 2013
Record closed on April 11, 2013
APPEARANCES:
Frank Talbott, Esq., for Claimant
Robin Ober Cooley, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant entitled to additional permanent partial disability benefits referable to
her January 2003 compensable work injury?
2. If yes, what is the extent of the additional permanent impairment she has
suffered?
3. Is Claimant entitled to reimbursement of Dr. Harvie’s evaluation charges as a
medical expense under 21 V.S.A. §640(a)?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit IA: Medical records
Joint Exhibit II: Medical records
Claimant’s Exhibit 2: Curriculum vitae, Keith Harvie, D.O.
Claimant’s Exhibit 3: Independent medical evaluation invoice, 2/28/2012
Defendant’s Exhibit A: Curriculum vitae, Thomas Grace, M.D.
2
CLAIM:
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Medical benefits pursuant to 21 V.S.A. §640(a)
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was
her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the
Department’s file relating to this claim. Judicial notice also is taken of the
commissioner’s prior decision in Heller v. Bast & Rood Architects, Opinion No. 32-
10WC (October 5, 2010), aff’d, Vermont Supreme Court Docket No. 2010-405 (May
Term, 2011).
Claimant’s January 2003 Work Injury
3. Claimant worked for Defendant’s architectural firm. On January 2, 2003 she slipped and
fell on the icy driveway while maneuvering to get into her car at the end of her workday.
In her First Report of Injury, Claimant described a backwards fall that “slammed” her
onto the ice, causing injury to her back, neck, shoulders and hips.
4. Although it disputed the causal relationship between Claimant’s fall and some of her
subsequent complaints, Defendant accepted as compensable those referable to her lower
back. It did so notwithstanding that she had a prior history of treatment for lower back
pain following motor vehicle accidents in 1986 and 2001. In fact, x-ray studies
undertaken some years before her 2003 work injury documented degenerative changes
not only in her lumbar spine, but in her cervical and thoracic spine as well.
5. In 2010 the parties litigated the compensability of Claimant’s other complaints, which
included pain in her cervical and thoracic spine, her knees and her hips. Following a
formal hearing, the Commissioner determined that only the bursitis in Claimant’s left hip
was causally related to the 2003 fall; her other complaints were all referable to
preexisting injuries or conditions.
6. The parties also litigated the question whether proposed prolotherapy injections
constituted reasonable treatment for Claimant’s lower back injury. The Commissioner
determined that they were.
3
Claimant’s 2004 and 2005 Permanency Ratings
7. Claimant was first determined to have reached an end medical result for her compensable
lower back injury in June 2004, following an independent medical examination with Dr.
Grace, a board certified orthopedic surgeon retained by Defendant for this purpose.1 Dr.
Grace diagnosed Claimant with grade 1 spondylolisthesis, a degenerative condition, at
the L4-5 level of her lumbar spine. Based solely on this diagnosis, in accordance with the
AMA Guides to the Evaluation of Permanent Impairment (5th ed.), he determined that
Claimant had suffered a seven percent whole person permanent impairment referable to
her 2003 work injury. Notably, during this examination Claimant demonstrated 70
degrees of lumbar spine flexion (forward bending) and 25 degrees of extension
(backwards bending). According to the AMA Guides, these measurements were
insufficient to qualify her for any additional impairment based on reduced range of
motion.
8. Dr. Grace next examined Claimant in August 2005. This time he calculated her
permanent impairment at ten percent whole person. The increase was attributable to two
factors. First, consistent with another independent medical examiner’s determination, Dr.
Grace added one percent impairment for documented degenerative disc disease at L2-3,
which he concluded was referable to Claimant’s work injury along with the degeneration
he previously had rated at L4-5. Second, because Claimant now was demonstrating only
40 degrees of lumbar flexion (down from 70 degrees in 2004), under the AMA Guides she
now qualified for an additional two percent impairment on account of her reduced range
of motion, which Dr. Grace determined was attributable to the work injury as well.
9. In June 2007 the Department approved the parties’ Agreement for Permanent Partial
Disability Compensation (Form 22), by the terms of which Defendant agreed to pay
permanency benefits in accordance with Dr. Grace’s August 2005 impairment rating. In
the Agreement, the parties described the compensable injury as “degenerative disc
disease and related symptoms.”
Claimant’s More Recent Treatment and Permanency Ratings
10. Following the Commissioner’s determination in her favor as to the reasonableness of
prolotherapy injections, Finding of Fact No. 6 supra, in 2010 Claimant resumed
treatment for her compensable lower back condition. Between January and April 2011
she underwent both lumbar epidural and facet injections, the purpose of which was
concurrently diagnostic – to help differentiate her spinal pathology from her hip
pathology – and therapeutic. In June and July 2011 she underwent prolotherapy
injections, which seemed to relieve some of the muscular dysfunction in her lower back,
at least for a time. For the most part, however, her pain persisted.
11. In February 2012 Claimant presented to Dr. Harvie, a board certified osteopath and
orthopedic surgeon, for evaluation. Claimant testified that her purpose for doing so was
1 Dr. Grace first evaluated Claimant in January 2004, but determined that she was not yet at end medical result. For
that reason, he estimated but did not conclusively rate her permanent impairment at that time.
4
to gain a better understanding of how the dysfunction in her lower back was evolving and
to learn whether a surgical solution might ultimately become necessary. I find that it was
appropriate for Claimant to seek out Dr. Harvie for this purpose, and also that it was
necessary for him both to review her voluminous medical file and to conduct a thorough
examination in order to provide well-reasoned and considered medical advice.
12. However, it is apparent from her attorney’s referral letter that the purpose of Dr. Harvie’s
evaluation was also to render an opinion regarding a variety of other medical and legal
issues facing Claimant, only some of which were related to her compensable lower back
condition. For example, in addition to soliciting a current permanent impairment rating
referable to her lower back, the attorney also asked Dr. Harvie to respond to questions
concerning the dysfunction in her right hip and right and left knees, all conditions that the
Commissioner previously had decided were not compensable. From reviewing Dr.
Harvie’s report and formal hearing testimony, I find that he likely devoted at least onethird
of his time to issues that were unrelated to Claimant’s compensable injury.
13. Dr. Harvie rated the extent of Claimant’s current whole person impairment referable to
her lumbar spine at 16 percent.2 As compared with the ten percent impairment that Dr.
Grace found in 2005, the difference lies in Claimant’s inability to extend backwards
during Dr. Harvie’s examination. According to the AMA Guides, this range of motion
deficit alone qualified her for an additional seven percent impairment. Using the AMA
Guides’ combined values chart, Dr. Harvie combined this impairment with (a) two
percent impairment for deficits in flexion; and (b) seven percent diagnosis-related
impairment to arrive at his final rating.
14. Dr. Grace also rendered an updated impairment rating, after conducting another
independent medical examination in April 2012.3 He too found that Claimant’s range of
motion had decreased since his 2005 exam, although the particulars were somewhat
different from Dr. Harvie’s.4 Dr. Grace’s final whole person impairment rating referable
to the lumbar spine was fifteen percent. The one-percent difference between the two
ratings relates to the manner in which the AMA Guides’ combined values chart was
applied; I find that Dr. Grace’s methodology was the correct one.
2 Dr. Harvie also rated a three percent impairment referable to Claimant’s compensable left hip condition.
Permanency benefits for this impairment were previously paid and are not currently at issue.
3 Dr. Grace also evaluated Claimant in 2007, for reasons unrelated to her lower back injury.
4 Whereas Dr. Harvie measured 45 degrees of flexion and zero degrees of extension in his evaluation, Dr. Grace
measured only 30 degrees of flexion, but ten degrees of extension. Added together, in both cases the resulting
impairment attributable to range of motion deficits is nine percent.
5
Expert Opinions as to Causation of Increased Impairment
15. Diagnostic imaging studies have documented that the degenerative disease in Claimant’s
lumbar spine has worsened in the years since Dr. Grace’s 2005 permanency evaluation.
Both Dr. Harvie and Dr. Grace attribute the increased range of motion deficits they
measured, and consequently Claimant’s increased permanent impairment, to the
progression of this condition. Where the two doctors differ is as to the role, if any, that
Claimant’s 2003 work injury has played in the process.
16. According to Dr. Harvie, a backwards fall onto the buttocks, such as the one Claimant
described, can result in significant trauma to the spine. In his opinion, that event likely
has had a “profound” impact on the rate at which the preexisting degenerative disease in
her lumbar spine has progressed.
17. Other factors likely have played a role in the progression of Claimant’s degenerative
disease as well. Dr. Harvie acknowledged that weight gain, lack of exercise and core
strength, family history and the aging process in general all have probably contributed.
He admitted that it would be impossible to quantify the extent to which any one factor
has caused the disease to accelerate. As a result, he could not break down the increase in
Claimant’s permanent impairment between 2005 and 2012 to that portion attributable to
trauma from her fall and those portions attributable to other causes.
18. Because Claimant’s condition is by its very nature a degenerative process, it likely will
continue to progress in the years to come. Notably, Dr. Harvie predicted that if she were
to lose weight she might be able to decrease the rate at which her range of motion
worsens over time. If she does not do so, her permanent impairment likely will continue
to increase.
19. Dr. Grace concurred with Dr. Harvie’s analysis as to the many factors that have
contributed to cause the degeneration in Claimant’s lumbar spine to worsen over time,
including prior injury, body mass, age and genetics. He acknowledged that the 2003 fall
likely played a role in the process. However, he disagreed that trauma from the fall
reasonably can be held accountable at this point for whatever ongoing degeneration has
occurred. Instead, he pointed to the aging phenomenon as the most likely causal factor.
With age come increased joint stiffness as well as arthritic degeneration, and therefore
decreased range of motion. In Dr. Grace’s opinion, it is difficult to speculate whether
Claimant would have exactly the same range of motion in her lumbar spine now even if
she had not suffered her 2003 work injury, but certainly she would have some additional
deficits as compared with 2005.
6
CONCLUSIONS OF LAW:
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). He or she must
establish by sufficient credible evidence the character and extent of the injury as well as
the causal connection between the 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 the resulting disability, and the inference from the facts proved
must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941);
Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
Modification of Permanency Award Based on “Change in the Conditions”
2. Claimant here seeks additional permanent partial disability benefits on the grounds that
her work-related lower back injury has progressed to the point of causing further
permanent impairment as compared to what was rated and paid in 2005. Defendant
agrees that her impairment has increased, but disputes both the legal and factual basis for
any additional award of benefits.
3. Vermont statute allows for an award of workers’ compensation benefits to be modified at
any time within six years from the date of the original award “upon the ground of a
change in the conditions.” 21 V.S.A. §668; see, e.g., Estate of Richardson v. Regular
Veteran’s Association Post #514, Opinion No. 04-11WC (February 16, 2011). The
statutory language does not exclude permanency awards from modification. However,
the very nature of such awards demands that a request for modification be closely
scrutinized. A permanency award is, after all, presumed in most cases to be permanent.
4. “[An] award for permanent incapacity looks to the future to compensate for the probable
reduction in earning power that will attend [an injured worker] for the remainder of his
working life.” Orvis v. Hutchins, 123 Vt. 18, 22 (1962). Thus, while temporary
disability benefits are payable during the healing process, permanency benefits do not
become due until the injured worker “is as far restored as the permanent character of his
injuries will permit.” Id. at 24. At this point, the worker is deemed to have reached the
“end result” of his or her physical recovery period. Bishop v. Town of Barre, 140 Vt.
564, 571 (1982).
5. Notably, by delineating the point at which the injured worker has recovered as much
function as possible following a work-related injury, the concepts of end medical result
and permanency focus on the extent to which a compensable injury or condition has
improved, not the extent to which it might continue to worsen. See Workers’
Compensation Rule 2.1200 (defining “end medical result”).
7
6. Recognizing that every award of permanent partial disability benefits thus encompasses
the possibility that a claimant’s condition still might continue to deteriorate even after an
end medical result is declared, the question becomes, under what circumstances should
modification on the grounds of “a change in the conditions” be granted?
7. One obvious requirement is that any change in an injured worker’s condition that results
in an increased permanent impairment must be shown to have been caused by the work
injury rather than non-work-related factors. Establishing this causal nexus is as necessary
in the context of modification as it is in the context of an initial award. Egbert, supra;
see, e.g., Marshall v. State of Vermont, Vermont State Hospital, Opinion No. 01-11WC
(January 25, 2011).
8. The interrelationship between end medical result and permanent partial disability dictates
a second requirement as well. For the same reason that a claimant cannot be awarded
permanency benefits initially until curative treatment has concluded and the condition has
stabilized, so too a prior award should not be modified unless additional curative
treatment has been undertaken and an end medical result reached. Otherwise, the
“permanent” aspect of the award will be lost, and piecemeal recoveries might result.
9. Considering the second requirement first, I conclude in this claim that the treatment
Claimant has undergone since 2010, including evaluations and referrals related to the
various injections referred to in Finding of Fact No. 10 supra, has been curative rather
than palliative in nature. As the credible medical evidence established, the purpose of
these treatments was both diagnostic and therapeutic. Prior decisions have routinely held
likewise. See, e.g., Luff v. Rent Way, Opinion No. 07-10WC (February 16, 2010); Abare
v. Ben & Jerry’s, Opinion No. 44-08WC (November 5, 2008).
10. As to the first requirement – the causal relationship between Claimant’s 2003 work injury
and her worsened permanent impairment – the parties presented conflicting expert
testimony. Where expert medical opinions are conflicting, the Commissioner
traditionally uses a five-part test to determine which expert’s opinion is the most
persuasive: (1) the nature of treatment and the length of time there has been a patientprovider
relationship; (2) whether the expert examined all pertinent records; (3) the
clarity, thoroughness and objective support underlying the opinion; (4) the
comprehensiveness of the evaluation; and (5) the qualifications of the experts, including
training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC
(September 17, 2003).
11. Neither of the medical experts here was a treating physician. However, Dr. Grace had the
benefit of conducting numerous independent medical examinations in the years since
Claimant’s 2003 injury, whereas Dr. Harvie only examined her once, some nine years
later. Given that the central issue in dispute involves the manner in which Claimant’s
condition has evolved over time, I conclude that this factor lends added credibility to Dr.
Grace’s opinion.
12. Beyond that, I conclude that Dr. Harvie’s opinion suffers from a lack of objective
support. He asserted that the 2003 work injury was still a factor contributing to the
8
ongoing degeneration in Claimant’s lumbar spine, but acknowledged that there was no
way to quantify to what extent this was so. He also admitted that she could control the
rate at which her range of motion would continue to decline (and thus the extent to which
her permanent impairment would continue to increase) through diet and exercise. The
logical inference is that such non-work-related factors are more likely driving Claimant’s
current circumstance, not an injury that occurred more than nine years ago.
13. In contrast, considering all of the factors that have played a role as Claimant’s condition
has continued to worsen, Dr. Grace credibly concluded that the natural aging process was
the most likely cause of her increased permanent impairment. In doing so, he recognized
how speculative it would be to predict the extent to which the degeneration in Claimant’s
lumbar spine would have progressed had her work injury not occurred. I agree.
14. Claimant points to the language of the parties’ previously approved permanency
agreement, in which the compensable injury was described as “degenerative disc
disease,” as the basis for imposing liability on Defendant for her increased permanent
impairment. I cannot accept this interpretation. That Claimant suffered from preexisting
degeneration in her lumbar spine was never disputed. It would make no sense to ascribe
its entire existence to her 2003 fall.
15. Though perhaps drafted inartfully, the injury Defendant accepted as compensable was not
the degenerative condition in Claimant’s lumbar spine itself, but rather the acceleration or
aggravation of that condition. By virtue of the permanency benefits it paid in 2005,
Defendant already has compensated Claimant for that compensable consequence. At
some point, the causal relationship between her work injury and the continued
progression of her disease becomes too attenuated, however. That point has now been
reached.
16. I conclude that Claimant has failed to sustain her burden of proving the extent, if any, to
which her 2003 work injury has caused her permanent impairment to increase since her
2005 permanency award.
Coverage for Dr. Harvie’s February 2012 Evaluation
17. Having previously found that at least one-third of Dr. Harvie’s February 2012 evaluation
was directed at issues unrelated to Claimant’s compensable injury, Finding of Fact No.
12 supra, I allocate one-third of the cost of that examination, or $1,695.00, to those
issues. The remaining two-thirds, or $3,441.00, I conclude are properly allocated to
reasonable medical services provided as treatment for Claimant’s compensable injury, for
which Defendant is responsible under 21 V.S.A. §640(a).
Costs and Attorney Fees
18. As Claimant has failed to substantially prevail on her claim for benefits, she is not
entitled to an award of costs and attorney fees.
ORDER:
9
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for additional
permanent partial disability benefits referable to her January 2003 compensable injury is hereby
DENIED. Defendant is hereby ORDERED to pay:
1. Medical benefits totaling $3,441.00 in accordance with 21 V.S.A. §640(a).
DATED at Montpelier, Vermont this 9th day of May 2013.
____________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions
of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont
Supreme Court. 21 V.S.A. §§670, 672.

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Curtis Smiley v. State of Vermont (June 3, 2013)

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

Curtis Smiley v. State of Vermont (June 3, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Curtis Smiley Opinion No. 15-13WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
State of Vermont
For: Anne M. Noonan
Commissioner
State File No. J-15114
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
William Blake, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant’s claim for permanent partial disability benefits referable to his
January 29, 1996 compensable work injury barred by the applicable statute of
limitations?
2. If yes, is Defendant barred from asserting the defense?
EXHIBITS:
Defendant’s Exhibit A: Dr. Thatcher medical record, July 8, 1996
Defendant’s Exhibit B: Dr. Backus report, January 20, 2011
Defendant’s Exhibit C : Dr. White report, March 24, 2011
Defendant’s Exhibit D: Case note, March 6, 1996
Defendant’s Exhibit E: Workers’ Compensation Rule 18 (effective May 15, 1996)
Claimant’s Exhibit 1: Dr. Backus report, January 20, 2011
Claimant’s Exhibit 2: Workers’ Compensation Rule 18 (effective May 15, 1996)
Claimant’s Exhibit 3: Dr. Thatcher medical record, July 8, 1996
2
FINDINGS OF FACT:
The following facts are undisputed:
1. This case arises out of an accepted work injury that occurred on January 29, 1996. See
Smiley v. State of Vermont, Opinion No. 12-12WC (April 15, 2012), and exhibits
admitted therein.
2. Following a course of medical treatment with Dr. Thatcher, by July 8, 1996 Claimant had
returned to work, and overall appeared to be doing quite well. He declined physical
therapy for his lingering symptoms. Dr. Thatcher anticipated that these would continue
to improve over time, and therefore advised him to return for treatment only as needed.
3. There was no further activity on Claimant’s claim file for more than fourteen years, until
October 21, 2010. On that date, Claimant’s attorney entered his appearance.
Subsequently, the attorney advised Defendant that Claimant was pursuing a claim for
permanent partial disability benefits referable to his 1996 work injury.
4. In November and December 2010, Claimant’s attorney requested that Defendant
schedule a permanency evaluation. In response, Defendant scheduled an independent
medical evaluation with Dr. Backus, which Claimant attended on January 20, 2011.
5. Dr. Backus determined that Claimant had suffered a one percent whole person permanent
impairment referable to his 1996 work injury. Following an evaluation in March 2011,
Claimant’s own medical expert, Dr. White, also calculated his ratable impairment at one
percent.
6. Dr. Backus determined that Claimant probably had reached an end medical result for his
work-related injury “back in 1996.” Dr. White as well determined that Claimant had
reached an end medical result, but did not specify a date when this likely occurred.
7. On May 16, 2011 Defendant filed a Denial of Workers’ Compensation Benefits (Form 2),
in which it denied Claimant’s demand that permanency benefits be paid on the grounds
that his claim was time-barred.
8. On June 3, 2011 Claimant filed a Notice and Application for Hearing (Form 6) as to
whether he was entitled to permanent partial disability benefits referable to his 1996 work
injury.
9. On September 7, 2011 Defendant’s counsel filed its answer, which pled the affirmative
defense of statute of limitations.
3
10. Claimant initially argued that Defendant had waived its right to assert a statute of
limitations defense by scheduling Dr. Backus’ January 2011 permanency evaluation. In a
ruling dated April 15, 2012 the Commissioner determined that Defendant’s statute of
limitations defense was still viable. Smiley v. State of Vermont, Opinion No. 12-12WC
(April 15, 2012).
11. The remaining issue is whether Claimant’s claim for permanent partial disability benefits
is in fact time-barred, and if so, whether Defendant should be barred from asserting the
defense.
DISCUSSION:
1. In order to prevail on a motion for summary judgment, the moving party must show that
there exist no genuine issues of material fact, such that it is entitled to a judgment in its
favor as a matter of law. Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25
(1996). Summary judgment is appropriate only when the facts in question are clear,
undisputed or unrefuted. State v. Realty of Vermont, 137 Vt. 425 (1979). That is the case
here.
2. The legal issues raised by this claim are similar to those that the Vermont Supreme Court
has considered in Longe v. Boise Cascade Corp., 171 Vt. 214 (2000), and Sanz v.
Douglas Collins Construction, 2006 VT 102. As in Longe, Defendant argues that
Claimant’s claim for permanency benefits is barred by the applicable statute of
limitations, because he failed to assert it within six years after reaching an end medical
result for his work-related injury.1 Also as in Longe, Claimant argues in response that
Defendant should be barred from asserting the statute of limitations as a defense because
it owed, and breached, a legal duty to investigate whether any permanent impairment had
been suffered. As in Sanz, the question whether such a duty existed depends on whether
an amended rule should be applied retroactively to govern the parties’ rights and
responsibilities in this case.
Statute of Limitations
3. According to Vermont’s workers’ compensation statute, the controlling date for
determining when the applicable statute of limitations begins to run is the “date of
injury.” 21 V.S.A. §660(a). That phrase has long been interpreted to mean “the point in
time when an injury becomes reasonably discoverable and apparent.” Longe, supra at
219, citing Hartman v. Ouellette Plumbing & Heating Corp., 146 Vt. 443, 447 (1985).
1 The statute of limitations for initiating a claim for workers’ compensation benefits has since been amended, and is
now three years. 21 V.S.A. §660(a).
4
4. Determining when an injury has become “reasonably discoverable and apparent” is a
question of fact that necessarily varies from case to case. Kraby v. Vermont Telephone
Co., 2004 VT 120, ¶6; see also, Lillicrap v. Martin, 156 Vt. 165, 172 (1989) (applying
reasonable discovery rule in medical malpractice context). Notably, a litigant “need not
have an airtight case before the limitations period begins to run,” but merely “should
have obtained information sufficient to put a reasonable person on notice that a particular
defendant may have been liable” for his or her injuries. Rodrigue v. Valco Enterprises,
169 Vt. 539, 540-41 (1999) (applying reasonable discovery rule in dram shop action).
The limitations period itself affords ample opportunity subsequently to flesh out the facts
and pursue available remedies. Id.
5. In the context of a claim for permanent partial disability benefits, the reasonable
discovery rule typically requires that the statute of limitations not begin to run until the
claimant reaches an end medical result. Kraby, supra; Longe, supra. “The claim period
can only begin to run when there is in fact something to claim,” Hartman, supra at 446.
Not every work-related injury justifies permanency compensation. Until treatment
concludes, the ongoing medical recovery process still might yield a full recovery with no
permanent impairment at all. Richardson v. Regular Veteran’s Association Post #514,
Opinion No. 04-11WC (February 16, 2011).
6. Applying these rules to the current claim, and considering the evidence in the light most
favorable to Claimant as the non-moving party, State v. Delaney, 157 Vt. 247, 252
(1991), I conclude as a matter of law that the statute of limitations on Claimant’s claim
for permanent partial disability benefits began to run on or about July 8, 1996. This was
the date on which his treating physician released him from active care, with instructions
to follow up only as needed. By this time Claimant had returned to work and there is no
evidence that he ever considered resuming treatment subsequently. The logical inference
is that both Claimant and his doctor appropriately perceived that treatment for the workrelated
injury had concluded.
7. What expert evidence there is also establishes July 1996 as the most likely end medical
result date. With no record of any subsequent treatment, Dr. Backus’ conclusion that
Claimant probably had reached the point of maximum medical improvement “back in
1996” likely refers to that timeframe. That his opinion necessarily was retrospective in
nature does not in any way disqualify it. See, e.g., Kraby, supra (treating surgeon’s
retrospective declaration of end medical result accepted as determinative).
5
8. Claimant argues that because the determination of end medical result is a medical opinion
requiring expert evidence, and because he is not an expert, he cannot be charged with
knowledge of that event sufficient to trigger the statute of limitations until an expert so
declared it. I disagree. It is true that medical expert testimony is required to establish
those elements of a workers’ compensation claim about which “a layman could have had
no well-grounded opinion,” most notably the causal relationship between an injured
worker’s employment and his or her injury. Lapan v. Berno’s, Inc., 137 Vt. 393, 395
(1979). It does not necessarily follow that a lay person can never be deemed to know
whether he or she has concluded treatment, either with or without lingering deficits or
dysfunction. Such matters are not so far beyond “the untutored understanding of the
average layman” that they are only reasonably discoverable with an expert’s assistance.
See Lillicrap, supra at 174 (noting that recipient of health care services may be aware of
fact of a “disability or dysfunction,” though admittedly not of its cause); see also, Bruno
v. Directech Holding Co., Opinion No. 18-10WC (May 19, 2010) (extension of end
medical result date not justified where claimant had failed to actively treat during period
in question).
9. As the court explained in Hartman, supra at 447, the issue raised by the reasonable
discovery standard is simply “whether the claimant had any reasonable occasion to file a
claim sooner than he did.” Though this is ordinarily a question of fact, the evidence here
is so clear as to render it a matter of law. Claimant probably would not have described
his situation in these terms, but as of July 1996 he knew, or should have known, that he
had reached an end medical result, and that whatever deficits he was left with were likely
permanent in nature. He then had six years within which to investigate and pursue his
legal remedies. Having failed to do so, I conclude that his claim for permanent partial
disability benefits is now time-barred.
Duty to Investigate
10. Notwithstanding that Claimant’s claim for permanency benefits is time-barred, Defendant
still might be precluded from asserting the statute of limitations as a defense if it is shown
to have had, and breached, a duty to investigate the extent of his permanent impairment
in a more seasonable fashion. Such a duty can be imposed either by way of an applicable
statute or rule, or by operation of the doctrines of equitable estoppel or equitable tolling.
Longe, supra at 223.
(a) The 1996 Amendments to Workers’ Compensation Rule 18
11. In 1983, when the injury under consideration in Longe occurred, neither the workers’
compensation statute nor the applicable rules imposed an affirmative duty on an
employer to investigate whether an injured worker had suffered a permanent impairment
as a result of a work-related injury. Longe, supra at 222. Nor was there any duty owed
to notify the worker of his or her right to permanency benefits. Id. at 223.
6
12. Effective May 15, 1996 the Department amended Workers’ Compensation Rule 18 and
imposed upon employers a duty to investigate the extent of an injured worker’s
permanent impairment. As amended, the rule now states:
The employer (insurer) shall take action necessary to determine whether
an employee has any permanent impairment as a result of the work injury
at such time as the employee reaches a medical end result.
. . .
A determination as to whether the claimant has any permanent impairment
shall be made within 45 days of filing the notice of termination [of
temporary disability compensation].
Workers’ Compensation Rules 18.1100 and 18.1200 (formerly Rules 18(a)(1) and
18(a)(2)).
13. Had Claimant’s work injury occurred after May 15, 1996, the effective date of these
amendments, there would be no reason to question their applicability to his pending claim
for permanency benefits. The injury at issue here occurred some five months earlier,
however, in January 1996. Under these circumstances, the question arises whether the
amendments properly should control the parties’ respective rights and responsibilities in
this case.
14. Vermont law provides that the amendment of a statutory provision “shall not affect any
right, privilege, obligation or liability acquired, accrued or incurred” prior to the
amendment’s effective date. 1 V.S.A. §214(b)(2); Myott v. Myott, 149 Vt. 573, 575-76
(1988). Phrased alternatively, this general rule of statutory construction prohibits
legislative amendments that affect substantive rights and responsibilities from being
applied retroactively. In contrast, amendments that are solely procedural can be given
retroactive effect, and therefore can be applied to claims that already are pending at the
time the new statute becomes effective. Id.
15. The Supreme Court has applied these well-established rules specifically to workers’
compensation claims. Citing to 1 V.S.A. §214, in Montgomery v. Brinver Corp., 142 Vt.
461, 463 (1983), the court declared, “The right to compensation for an injury under the
Workmen’s Compensation Act is governed by the law in force at the time of occurrence
of such injury.” The date of an employee’s work-related injury is thus the controlling
date for determining whether a substantive amendment to the statute will apply.
7
16. The court clarified what constitutes the “right to compensation” for the purposes of
determining whether a statutory amendment is substantive or procedural in Sanz, supra at
¶6. A post-injury amendment that “fundamentally changes the right to benefits or the
obligation to pay them” is substantive, and cannot be applied retroactively. An
amendment that does not fundamentally change pre-existing rights and responsibilities is
procedural, and can be applied in a pending action.2 Id.
17. The claimant in Sanz suffered a work-related injury in 1998, for which he reached an end
medical result in 2003. After some dispute regarding the extent of his permanent
impairment, in 2004 the employer accepted his claim for permanent total disability
benefits. However, it refused to honor his request that benefits be paid in a lump sum
rather than weekly. Relying on a 2000 amendment to the statute, which empowered the
commissioner to order payment in a lump sum even without the employer’s consent, the
claimant sought redress, first before the commissioner and then before the Supreme
Court. The issue was whether the amendment to the statute, which was enacted after the
claimant’s injury occurred but before his claim for permanent total disability benefits
accrued, properly governed his case.
18. Claimant premised his assertion that the amended statute applied to his circumstance on
two grounds. First, he argued that because the employer’s obligation to pay permanency
benefits did not arise until he reached an end medical result in 2003, the law in effect as
of that date should control. The court disagreed. Relying on the rule enunciated in
Montgomery, supra, it held that regardless of when a statutorily defined benefit is
required to be paid, the right to receive it – “the right to compensation” – is still acquired
at the time of the injury. Sanz, supra at ¶11. By the same token, the court continued,
“the obligation to pay those benefits is also governed by the law in force at the time of
injury.” Id.
19. Next, the claimant in Sanz argued that because the amendment in question altered only
the method by which an employer might be obligated to pay permanency benefits, but not
the obligation to pay benefits itself, it was procedural rather than substantive in nature,
and therefore could be applied retroactively to his claim. The court rejected this
argument as well. By allowing the commissioner to order an employer to discharge its
payment obligation all at once rather than gradually, it reasoned, the amendment would
“fundamentally alter” the employer’s obligation. Id. at ¶13. Just as significantly, by
awarding claimants the opportunity to use or invest a large up-front payment, the
amendment would “fundamentally change” the benefit owed them. Id. Thus, because
the amendment substantially affected both the claimant’s right to compensation and the
employer’s obligation to pay it, the court concluded that it was substantive in nature. As
a consequence, it could not be applied retroactively to injuries that predated its
enactment. Id.
2 The same substantive-versus-procedural analysis applies to amendments to the administrative rules that govern
workers’ compensation proceedings. Workers’ Compensation Rule 46.1000; see, e.g., Taft v. Central Vermont
Public Service Corp., Opinion No. 03-11WC (January 25, 2011).
8
20. Claimant here makes essentially the same arguments as were asserted in Sanz. First, he
argues that although the amendments to Rule 18 were not enacted until after his work
injury occurred, nevertheless they should govern his claim for permanency benefits
because they became effective before he reached an end medical result. The court
specifically rejected this argument in Sanz, supra at ¶11, and so I do as well.
21. Second, Claimant asserts that the amendments to Rule 18 can be applied retroactively,
because they did not alter any of the parties’ fundamental rights or obligations and
therefore are appropriately characterized as procedural rather than substantive in nature.
Again, I disagree. As the result in Longe demonstrated, both the duty to pay permanency
benefits and the duty to investigate whether such benefits are payable go to the heart of
the responsibilities owed by an employer to an injured worker. By imposing the latter
obligation on employers where clearly, according to the court in Longe, none had existed
before, the amended rule fundamentally altered each party’s respective rights and
responsibilities. As a consequence, the amendments can only be applied prospectively, to
claims involving injuries that occurred after their effective date. That is not the case here.
(b) Equitable Estoppel and Equitable Tolling
22. Having concluded that the duty to investigate imposed by the amended Rule 18 did not
apply to Defendant’s conduct here, the only other basis for excusing Claimant’s failure to
pursue his permanency claim in a timely manner is if the circumstances justify invoking
the doctrines of equitable estoppel or equitable tolling. Longe, supra at 226. The
undisputed facts do not support applying either doctrine.
23. The doctrine of equitable estoppel promotes fair dealing and good faith “by preventing
‘one party from asserting rights which may have existed against another party who in
good faith has changed his or her position in reliance upon earlier representations.’”
Beecher v. Stratton Corp., 170 Vt. 137, 139 (1990), quoting Fisher v. Poole, 142 Vt. 162,
168 (1982). At the doctrine’s core is the concept that through its conduct, the party
against whom estoppel is asserted must have intended that the other party would be
misled to his or her detriment. Id.; Longe, supra at 224.
24. Absent either a promise or some degree of fraudulent misrepresentation or concealment,
generally the doctrine of equitable estoppel will not bar a defendant from asserting the
statute of limitations as a defense to another party’s claim. Beecher, supra. In the
workers’ compensation context, estoppel applies “when the conduct or statements of an
employer or its representatives lull the employee into a false sense of security, thereby
causing the employee to delay the assertion of his or her rights.” Freese v. Carl’s
Service, 375 N.W.2d 484, 487 (Minn. 1985), quoted in Longe, supra at 224.
25. The doctrine of equitable tolling has even more limited application. It is justified only
when either “‘(1) the defendant actively misled the plaintiff or prevented the plaintiff in
some extraordinary way from filing a timely lawsuit; or (2) the plaintiff timely raised the
precise claim in the wrong forum.’” Longe, supra at 224-225, quoting Beecher, supra at
143.
9
26. Claimant has failed to assert any facts here from which I might conclude that he was
misled to his detriment as a result of Defendant’s conduct. That he was unaware of his
right to seek permanency benefits is apparent from his own failure to act, but this is not
sufficient to establish estoppel. Longe, supra. What is required is that his failure must
have been induced in some way by Defendant’s intentional conduct. There is no
evidence whatsoever that this is what occurred.
27. Even considering the evidence in the light most favorable to Claimant, I conclude as a
matter of law that neither the doctrine of equitable estoppel nor that of equitable tolling
justifies barring Defendant from asserting the statute of limitations as a defense to
Claimant’s claim for permanency benefits.
Summary
28. “The burden is generally on the party seeking relief to take some affirmative action in
order to protect his or her rights.” Longe, supra at 225. If he or she fails to do so,
thereby letting the statute of limitations expire, then “absent a legal disability or
circumstances sufficient to invoke the doctrines of equitable estoppel or equitable tolling,
he has no right to relief.” Id. at 226. Claimant here did not take action until some years
after the statute of limitations on his claim for permanency benefits had expired. His
failure to do so is not excused by any neglect of duty on Defendant’s part, nor by
circumstances sufficient to justify equitable relief in his favor. As a matter of law, his
claim is time-barred.
ORDER:
Defendant’s Motion for Summary Judgment is hereby GRANTED. Claimant’s claim for
permanent partial disability benefits referable to his January 29, 1996 work-related injury is
barred by the applicable statute of limitations and is therefore DENIED.
DATED at Montpelier, Vermont this 3rd day of June 2013.
_____________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions
of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont
Supreme Court. 21 V.S.A. §§670, 672.

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Calvin McKiernan v. Standard Register (December 2, 2009)

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

Calvin McKiernan v. Standard Register (December 2, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Calvin McKiernan Opinion No. 47-09WC
v. By: J. Stephen Monahan, Esq.
Division Director
Standard Register Co.
For: Patricia Moulton Powden
Commissioner
State File Numbers Z-01455 and T-14760
OPINION AND ORDER
Hearing held in Montpelier, Vermont on August 27, 2008
Record closed on September 15, 2008
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
David Berman, Esq., for Defendant Liberty Mutual Insurance Company
Justin Sluka, Esq., for Defendant Travelers Insurance Company
ISSUES PRESENTED:
1. Did Claimant’s current low back condition arise out of and in the course of his employment at Standard Register?
2. Did Claimant’s right shoulder injury arise out of and in the course of his employment at Standard Register?
3. Is Claimant entitled to temporary disability benefits for any time after Standard Register closed for business and he was laid off?
4. Has Claimant reached an end medical result with regard to his current back and shoulder condition?
5. Is Claimant entitled to permanent partial disability compensation for an earlier workers’ compensation claim that occurred in February 2003 while Travelers Insurance Company was on the risk?
2
PRE-HEARING MOTIONS:
Summary judgment shall be awarded to the moving party if it can demonstrate that there is no genuine issue as to any material fact and it is entitled to judgment as a matter of law. Summary judgment is mandated when, after an adequate time for discovery, a party “fails to make a showing sufficient to establish the existence of an element” essential to the case and on which it has the burden of proof at trial. Poplaski v. Lamphere, 152 Vt. 251 (1989), citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986). In evaluating the propriety of a summary judgment motion, the non-moving party is entitled to the benefit of all reasonable doubts and inferences. Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22 (1996); Murray v. White, 155 Vt. 621 (1991).
In this case, genuine issues of material fact exist that preclude summary judgment for any party. First, the parties dispute the relationship of Claimant’s current low back and shoulder complaints to his employment at Standard Register. Claimant’s evidence suggests that his stressful, repetitive work with the Hunkler2 machine aggravated his low back and shoulder condition. In contrast, one of Defendants’ experts is of the opinion that Claimant’s problems are the result of degenerative changes associated with the aging process. The evidence diverges on the critical question of causation, therefore, making summary judgment on the issue inappropriate.
Assuming that Claimant’s condition is found to be work-related, furthermore, the parties dispute whether he is either totally or partially disabled from working. Although the parties agree that the reason Claimant ceased working for Standard Register was because the company closed, not because of his injury, they dispute whether his injuries currently prevent him from finding employment. This too presents a genuine issue of material fact.
Last, Claimant and Defendant Travelers dispute whether he is entitled to any permanent partial disability benefits for the February 21, 2003 back injury. This issue as well poses genuine issues of material fact.
Because each of these issues raise disputed questions of material fact, summary judgment is not appropriate, and all such motions are denied.
FINDINGS OF FACTS:
1. At all times relevant to this proceeding, Claimant was an employee and Defendant Standard Register was his employer as these terms are defined in Vermont’s Workers’ Compensation Act.
2. Travelers Insurance Company (“Travelers”) was Defendant’s workers’ compensation insurer at the time of Claimant’s February 2003 compensable work-related injury (State File No. T-14760).
3
3. Liberty Mutual Insurance Company (“Liberty”) was Defendant’s workers’ compensation insurer from July 1, 2003 until Standard Register ceased doing business in Vermont. Thus, Liberty was on the risk at the time of Claimant’s March 2007 injury claim (State File No. Z-1425).
4. The parties have stipulated that Travelers does not bear any liability for Claimant’s current back and shoulder claim. It may be liable for permanency benefits related to the 2003 injury.
5. Standard Register closed and ceased business on or about March 27, 2007.
6. Claimant worked full-time for Standard Register until the day the company closed.
7. Claimant did not seek treatment for his current alleged low back injury between July 2003 and March 14, 2007 (six days prior to his last day of work). Claimant worked full-time during that period, and no medical provider restricted his work activities during that period.
8. Claimant also first reported shoulder complaints on March 14, 2007. He saw a physician but no work restrictions were placed on him at that time.
9. According to Claimant, he had both back and shoulder complaints between July 2003 and March 14, 2007, but he feared losing his job if he reported another injury and so decided not to do so until just a week prior to being laid off. I do not find Claimant’s fear-of-termination story credible. He had filed complaints in the past, and had not been penalized by the company. In fact, he filed a mental stress claim during this period, and even quit his job for a week, but was rehired with no loss of seniority or benefits. I think it more likely that if Claimant was reluctant to file a claim, it was because he feared that if he were taken out of work he would be deemed ineligible for the severance package that the company was offering.
10. By his own admission, Claimant was willing to tailor his story to achieve a possible end. For example, after learning that the plant would be closing, Claimant thought he might want to become a truck driver. To that end, he went to a Dr. Iqbal, told the doctor that he had no complaints at all and sought a medical opinion that he was physically able to drive a truck. Claimant now alleges that these statements were not accurate, and that he only made them in order to obtain a medical release to drive a truck.1
1 As an aside, Claimant’s entire truck-driver scheme was rather unorthodox and demonstrates questionable judgment. He did not seek any formal training or evaluation, and evidently did not fully comprehend the demands of truck driving in any respect. After arranging to drive a friend’s truck, Claimant discovered that the job was harder than he initially had imagined and thereafter abandoned the plan.
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11. Claimant’s testimony surrounding the termination of physical therapy treatment for his 2003 back injury is also telling. The physical therapy notes indicate that his condition was improving over time. On March 28, 2003 Claimant cancelled his appointment with the physical therapist, reporting that he had no symptoms. He sought no further treatment. At his deposition in 2008 Claimant acknowledged that his back had improved with physical therapy. At the formal hearing, however, Claimant’s testimony was somewhat different. There he stated that he cancelled his physical therapy appointment because he was unhappy and angry with his employer, who was asking when treatment would finish. Claimant also suggested that he did not like the “light duty” jobs offered by Standard Register, so he decided to stop going to physical therapy and return himself to full duty work status. This pattern of changing his story to achieve what he perceived to be a more beneficial result makes Claimant a less than credible witness.
Temporary Disability Benefits
12. Notwithstanding Claimant’s limited credibility, I find Dr. Bucksbaum’s opinion, supported in part by Dr. Ensalada’s opinion as well, compelling. Claimant was employed for several years in a difficult job. The stresses and strains of that job caused him injury and accelerated the onset of his arthritic degenerative condition.
13. Drs. Bucksbaum and Ensalada believe that Claimant’s current back injury is not a recurrence of his February 2003 injury. Rather, they believe that Claimant’s work at Standard Register after the arrival of the Hunkler2 machine in July 2003 resulted in an aggravation of his pre-existing condition.
14. In contrast, Dr. Johansson is of the opinion that Claimant’s current back and shoulder problems are the result of age-related degenerative changes, and have not been caused by his work for Standard Register. Dr. Johansson does not adequately address whether Claimant’s work in any way accelerated the pre-existing condition. In this respect, I find Dr. Johansson’s opinion to be both less complete and less credible than the opinions of Drs. Bucksbaum and Ensalada.
15. Based on the medical records submitted, Claimant did not seek medical treatment for his low back or right shoulder between November 2003 and August 2006.
16. On or about June 11, 2007 Dr. Bucksbaum placed work restrictions on Claimant but did not bar him from all work. According to Dr. Bucksbaum, Claimant had a limited work capacity dating back to March 20, 2007. Under the circumstances, I find that opinion too speculative to accept. Claimant had managed to work a full schedule right up until that date, and presumably would have continued to work thereafter had he not been laid off due to the company’s closure. I find that the evidence establishes that June 11, 2007 is the earliest date that Claimant established an entitlement to temporary partial disability.
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17. Claimant began looking for work, and kept a job search log as soon as he learned that he was required to do so. Claimant is entitled to temporary partial disability benefits from June 11, 2007 through April 2008, and thereafter for each week in which he establishes that he performed a good faith work search. Notwithstanding the fact that he has some work capacity, Claimant has not worked at all during this period. Therefore, his temporary partial disability rate is equivalent to the temporary total disability benefit – two-thirds of his average weekly wage for the twelve weeks preceding March 20, 2007.
Permanent Partial Disability Benefits
18. Claimant essentially declared himself at end medical result on March 28, 2003 when he cancelled his physical therapy appointment and announced that he was ready for full duty work. He made no request for permanent partial disability benefits at that time, and the insurer on the risk at the time (Travelers) made no effort to evaluate whether any permanency benefits were due.
19. In 2003 the applicable statute of limitations within which to make a workers’ compensation claim was six years. Claimant’s claim for permanency benefits attributable to this earlier injury is timely. Because of the lapse of time between claimant’s “medical end” relating to the 2003 injury and the date of his permanency evaluations, an accurate determination is difficult, but not impossible.
20. Workers’ Compensation Rule 18.1100 provides that “The employer (insurer) shall take action necessary to determine whether an employee has any permanent impairment as a result of the work injury at such time as the employee reaches a medical end result.” Taken in its proper context, the rule contemplates that the trigger for the insurer’s action will be either a medical opinion establishing end medical result or a claim for permanent disability benefits. The rule does not anticipate a circumstance where a claimant would deem him- or herself at end medical result. As that is essentially what happened in this instance, I will not interpret Rule 18.1100 to require the insurer to have sought a permanency opinion before a claim was made or a medical determination rendered. I do note, however, that an insurer certainly could protect itself by seeking a determination of both end medical result and permanency at the time a claimant returns to work.
21. I find that Claimant had no impairment after the 2003 injury. Although Dr. Bucksbaum offered an opinion that Claimant had a 5% whole person impairment, he could not credibly testify that Claimant exhibited muscle spasm or guarding, asymmetric loss of range of motion, or non-verifiable radicular complaints at the time he returned to full duty work. I am therefore left with the opinion of Dr. Ensalada, which, although it appears to be an effort to offer a legal opinion rather than a medical opinion, is at least consistent with the 5th edition of the AMA Guides. Since the burden of establishing an entitlement to any permanency benefits is on the claimant, and Claimant has not met that burden, no benefits are awarded.
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CONCLUSIONS OF LAW:
1. In workers’ compensation cases, sufficient competent evidence must be submitted verifying the causal connection between an injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984). Where the causal connection between an accident and an injury is obscure, and a lay person would have no well-grounded opinion as to causation, expert medical testimony is necessary. Lapan v. Berno’s Inc., 137 Vt. 393 (1979).
2. There must be created in the mind of the trier of fact something more than possibility, suspicion or surmise that the incidents complained of were the cause of the injury and resulting disability. Claimant must demonstrate that the most probable hypothesis is that the work incidents caused or aggravated the injury. See, Burton v. Holden Lumber, 112 Vt 17 (1941).
3. If a claimant has a pre-existing condition, he or she may still be entitled to workers’ compensation benefits if he or she is able to demonstrate that the work incident has aggravated or accelerated that pre-existing condition. See Jackson v. True Temper, 151 Vt. 592, 595 (1989).
4. The general rule is that a claimant who voluntarily quits his or her job for reasons unrelated to a compensable work injury is not entitled to temporary total disability. The workers’ compensation statute is remedial in nature, and so, to avoid harsh, unfair results, there is an exception to the general rule for a claimant who can demonstrate: (a) a work injury; (b) a reasonably diligent attempt to return to the work force; and (c) that the inability to return to the work force (or a return at reduced wages) is related to the work injury and not to other unrelated factors. See, e.g., J. D. v. Putney Paper Co., Opinion No. 13-08WC (April 8, 2008); J.P. v. Pollution Solutions of Vermont, Opinion No. 23A-01WC (October 5, 2001), citing Andrew v. Johnson Controls, Opinion No 3-93WC (June 13, 1993).
5. When a claimant had no wages prior to the date of disability, workers’ compensation benefits are calculated based on the pre-injury wages plus any additional cost of living increases that may have accrued in the interim. See J. D. v. Putney Paper Co., supra; J.P. v. Pollution Solutions of Vermont, supra.
6. I conclude that Claimant’s receipt of severance benefits does not prohibit his receiving workers’ compensation benefits for the same period. Severance benefits are paid in exchange for the release and waiver by the employee of any right to sue the employer. They are sufficiently different from wages so as not to be considered when evaluating a right to temporary disability benefits.
7. I also conclude that Claimant’s application for and receipt of unemployment benefits does not defeat his claim for temporary disability benefits. Claimant’s physician had placed work restrictions on him, but had not prohibited all forms of work. Furthermore, to the extent that Claimant receives temporary disability benefits during a period when he also received unemployment benefits, he will have to repay the latter.
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8. The Workers’ Compensation Act provides:
Where the disability for work resulting from an injury is partial, during the disability and beginning on the eighth day thereof, the employer shall pay the injured employee a weekly compensation equal to two-thirds of the difference between his average wage before the injury and the average weekly wage which he or she is able to earn thereafter.
21 V.S.A. §646.
9. Claimant has established that he was temporarily partially disabled as of June 11, 2007. He is entitled to temporary partial disability benefits from June 19, 2007 through April 2008, and thereafter for each week in which he establishes that he performed a good faith work search. Since Claimant was unable to find employment consistent with his limited ability to work payment shall be based on two-thirds of his average weekly wage for the twelve weeks preceding March 20, 2007.
10. For the purposes of workers’ compensation, “permanent disability” is established when the injured employee either reaches an end medical result or when maximum earning power is restored through resumption of employment. Wroten v. Lamphere, 147 Vt. 606, 610, (1987); Orvis v. Hutchins, 123 Vt. 18, (1962). The claimant has the burden of proving that a work injury has resulted in a permanent impairment. The degree of impairment must be determined using the 5th edition of the AMA guides. 21 V.S.A. §648. Claimant failed to meet his burden of establishing that he had a permanent partial disability impairment when he returned to full duty work in March of 2003.
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ORDER:
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby ORDERED that:
1. Claimant’s request for an award of permanent partial disability benefits based on the 2003 injury is DENIED.
2. Liberty Mutual is ORDERED to pay:
a. All medical benefits that are determined to be reasonable and necessary treatment for Claimant’s compensable March 2007 work injury;
b. Temporary partial disability benefits from June 19, 2007 through April 2008, and thereafter for each week in which Claimant establishes that he performed a good faith work search;
c. Liberty Mutual is further ordered to promptly evaluate Claimant’s entitlement to vocational rehabilitation services.
4. Claimant shall have 30 days from the date of this Order to submit his request for costs and attorney fees.
DATED at Montpelier, Vermont this 2nd day of December 2009.
__________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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William Belville v. RHC, Inc. dba Times Argus (July 29, 2009)

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

William Belville v. RHC, Inc. dba Times Argus (July 29, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
William Belville Opinion No. 29-09WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
RHC, Inc. d/b/a
Times Argus For: Patricia Moulton Powden
Commissioner
State File No. X-63007
OPINION AND ORDER
Hearing held in Montpelier on April 17, 2009
Record closed on May 22, 2009
APPEARANCES:
Craig Jarvis, Esq., for Claimant
Robert Cain, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant entitled to permanent partial disability benefits as a result of his May 24, 2006 compensable work injury?
2. If yes, to what extent, if any, should Claimant’s permanent partial impairment be apportioned between his May 2006 work injury and his pre-existing condition?
EXHIBITS:
Joint Exhibit I: Medical records
Defendant’s Exhibit 1: Curriculum vitae, William Boucher, M.D.
CLAIM:
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Interest pursuant to 21 V.S.A. §664
Costs and attorney fees pursuant to 21 V.S.A. §678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim. Judicial notice also is taken of relevant portions of the AMA Guides to the Evaluation of Permanent Impairment (5th ed.)(the “AMA Guides”).
3. Claimant has a varied work history. He has been a mason tender, a self-employed wood worker, a commercial truck driver, a parking garage superintendent and a microchip tester. At the time of the injury at issue here, he was employed part-time by Defendant as a newspaper delivery driver.
Claimant’s Prior Medical History
4. Claimant has a long and complicated history of low back injuries, surgeries and pain. His problems began in 1982, when he herniated his L4-5 disc while lifting a car at home. Claimant underwent an L4-5 laminectomy, after which he recovered well.
5. In 1989 Claimant suffered a work-related low back injury while employed for Casella Waste Management. Claimant treated conservatively for this injury, and his claim for workers’ compensation benefits was accepted. Claimant recalled being out of work for six to eight months, during which time he received temporary total disability benefits.
6. Claimant does not recall receiving any permanent partial disability benefits relating to his 1989 work injury. The Department’s computer record reflects that an Agreement for Permanent Partial Disability Compensation was filed in July 1990, but does not specify how many weeks of benefits were awarded. Both the Department’s and the employer’s paper files relating to this injury have been destroyed, and therefore there is no way at this point to verify what, if anything, was paid.
7. In late 1995 and early 1996 Claimant suffered two slip-and-falls on the ice, neither work-related, as a result of which his low back pain worsened and became chronic. In 1997 Claimant underwent surgery to implant a dorsal column stimulator; complications ensued and the device was removed and re-implanted in 1998, then ultimately removed permanently in 2000.
8. Also in 1997 Claimant was found entitled to Social Security Disability Insurance (SSDI) benefits because of his chronic disabling low back pain. There have been periods since then during which Claimant was able to work part-time (and a one-year stint of full-time employment as well), but he has never been pain-free. Claimant has been prescribed narcotic pain medications regularly since the mid-1990’s as treatment for his chronic pain.
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9. In 2005 Claimant underwent a surgical fusion at L5-S1. Following this surgery, Claimant felt much improved. Although still not pain-free, his low back pain moderated somewhat, and the symptoms he had been experiencing in his legs abated significantly. Despite these improvements, however, Claimant continued to receive SSDI benefits and worked only part-time. He also continued to use narcotic medications for chronic pain relief.
Claimant’s Work Injury
10. Claimant began working part-time for Defendant in April 2006. On May 24, 2006 he was involved in an accident while delivering papers when he was pinned by a forklift against the rear door of his truck. Claimant’s back hurt, and he left work early that day, but he did not immediately seek medical treatment. In fact, because he had promised to cover a co-employee’s vacation time in June, he continued to work until July 31, 2006. Claimant has not worked since.
11. Claimant testified that his low back pain is much worse since the May 2006 incident than it was at any time beforehand. It is unclear why this is so. Claimant’s current treating neurosurgeon, Dr. Jewell, has hypothesized that the forklift accident caused the nerves in the area of Claimant’s previous L5-S1 fusion to become stretched, but acknowledged that this was only a “guess,” unsupported by any scientific evidence, case reports or experience.
12. Claimant has consulted with both orthopedic and neurosurgeons as to whether there might be a surgical remedy for his chronic pain, but none have endorsed this approach with any conviction. He continues to use narcotic medications for pain control. According to a functional capacities evaluation completed in March 2008, he has no current work capacity.
Independent Medical Evaluations and Permanency Opinions
13. Claimant has undergone two independent medical evaluations – one with Dr. White, at his own attorney’s referral, and one with Dr. Boucher, at Defendant’s request. Although neither expert has been able to explain the anatomical basis for Claimant’s increased symptoms, both agree that his current complaints are causally related to the forklift incident. Both also agree that Claimant has reached an end medical result. The dispute between them centers on the appropriate permanency rating for Claimant’s condition. The analysis is complicated by the fact that Claimant has suffered prior injuries to his lumbar spine.
14. The AMA Guides provide two methods for calculating spinal impairment – the diagnosis-related estimate (DRE) method and the range-of-motion (ROM) method. The DRE method is generally favored, but in certain situations the Guides direct that the ROM method be used instead. Specifically, the Guides suggest that the ROM method be used “when there is multilevel involvement in the same spinal region,” AMA Guides §15.2, paragraph 2 at p. 380, or “where there is recurrent injury in the same spinal region,” Id. at paragraph 4.
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15. Dr. White determined that both of these exceptions applied to Claimant’s case – the first because he had suffered prior injuries at both L4-5 and L5-S1, and the second because the forklift incident had caused a repeat injury at the latter level. For those reasons, he applied the ROM method and concluded that Claimant now has a 26% whole person permanent impairment.
16. Dr. White next considered how much of that impairment probably pre-existed the forklift incident and therefore should be attributed to Claimant’s prior injuries instead. The AMA Guides offer guidance in this respect as well. Generally, the Guides suggest using a subtraction methodology – calculate the total current impairment, then subtract whatever impairment is referable to the prior injury; the remainder is the amount attributable to the current injury. AMA Guides §15.2a, paragraph 9 at p. 381. The Guides further state:
Ideally, use the same method to compare the individual’s prior and present conditions. If the ROM method has been used previously, it must be used again. If the previous evaluation was based on the DRE method and the individual now is evaluated with the ROM method, and prior ROM measurements do not exist to calculate a ROM impairment rating, the previous DRE percent can be subtracted from the ROM ratings. Because there are two methods and complete data may not exist on an earlier assessment, the apportionment calculation may be a less than ideal estimate.
Id.
17. No data exists from which to calculate Claimant’s prior impairment using the ROM method. With reference to the paragraph quoted above, Dr. White used the DRE method to determine that Claimant had suffered a 20% whole person impairment referable to his prior fusion surgery. Subtracting this amount from the 26% total current impairment Dr. White had derived using the ROM method, he concluded that Claimant had incurred a 6% whole person impairment referable to the forklift incident.
18. Dr. Boucher found Dr. White’s methodology to be flawed. In particular, he objected to Dr. White’s use of both the DRE and ROM methods in the same analysis. Dr. Boucher used a different approach. Noting that there was no objective evidence that the condition of Claimant’s spine had changed at all as a result of the forklift incident, he concluded that the DRE method properly should be applied to determine the extent of Claimant’s current impairment, not the ROM method. According to Dr. Boucher, doing so offered the further advantage of allowing for both the current and the prior impairment to be calculated via the same methodology.
19. Claimant’s impairment rating under the DRE method is straightforward. Both before and after the forklift incident, his L5-S1 fusion places him in Category IV, a 20-23% whole person impairment. The forklift incident having had no impact on the appropriate diagnosis-related category, according to Dr. Boucher’s analysis that event caused no additional permanent impairment, and therefore there is nothing to apportion.
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20. Both Dr. White and Dr. Boucher are well known to this Department as qualified experts. Both have substantial experience rating permanency in accordance with the AMA Guides. The fact that each used a different methodology to arrive at his impairment rating reflects their different interpretations of the same sections of the Guides.
21. With Dr. Boucher’s end medical result determination as support, Defendant terminated Claimant’s temporary disability benefits on April 28, 2008. Claimant’s compensation rate for permanent partial disability benefits as of that date was $186.76, updated to $194.23 as of July 1, 2008.
22. Claimant was 48 years old on April 28, 2008. According to Vermont’s Medicaid Manual, his remaining life expectancy as of that date was 28 years, or 336 months.
CONCLUSIONS OF LAW:
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). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the 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 the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The dispute here centers on the extent, if any, of the permanent impairment Claimant suffered as a result of the forklift incident. Vermont’s workers’ compensation statute specifically designates the AMA Guides as the controlling authority for making such a determination. 21 V.S.A. §648(b). Unfortunately, however, the Guides are not always so clear as to be subject to only one interpretation, and well-qualified medical experts often disagree as to their application in particular circumstances.
3. Here, I find Dr. White’s interpretation of the relevant sections of the Guides to be more compelling than Dr. Boucher’s. I agree with his reading of the Guides as directing that the ROM method be used in situations where, as here, a patient has suffered a recurrent injury to the same spinal region.1 I accept as valid, therefore, his conclusion that Claimant’s current total impairment is 26% whole person, calculated in accordance with that method.
4. I also concur with Dr. White’s assessment that the Guides contemplate circumstances in which it is necessary to mix a ROM-based impairment calculation with a DRE-based one in order to make an appropriate determination as to apportionment. Claimant’s case presents one of those circumstances. I accept Dr. White’s assessment that the extent of Claimant’s impairment attributable to the forklift incident is 6%.
1 Of note, the use of the term “recurrent” in the context of the AMA Guides should not be interpreted to conflict in any way with both Dr. White’s and Dr. Boucher’s determination that Claimant suffered an “aggravation” as a result of the forklift incident. Both terms have legal meanings completely distinct from their medical usage. Rolfe v. Textron, Inc., Opinion No. 08-00WC (May 16, 2000).
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5. What remains to be determined is whether apportionment is appropriate under the particular circumstances of this case. The AMA Guides specifically defer to state law on this issue. Kearney v. Addison-Rutland Supervisory Union, Opinion No. 21-09WC (June 24, 2000) (citing to §§1.6b, 2.5h and 15.2a of the AMA Guides); Langdell v. G.W. Savage Corp., Opinion No. 19-09WC (June 24, 2009) (same).
6. Vermont’s workers’ compensation statute requires apportionment in cases where a prior impairment has been both rated and paid. 21 V.S.A. §648(d). Absent those specific circumstances, the Commissioner retains discretion whether to apportion or not. Kearney, supra.
7. Although there is evidence in the current claim that Claimant’s prior impairment was rated, it is unclear whether anything was ever paid. The statute requires evidence of both a prior rating and prior payment in order for mandatory apportionment to be triggered. Langdell, supra. Thus, I conclude that the decision whether to allow apportionment here lies within my discretion, but is not required by the statute.
8. I am mindful of the remedial purpose of Vermont’s workers’ compensation statute, and the requirement that it be construed broadly in order to make injured workers “whole.” Hodgeman v. Jard Co., 157 Vt. 461, 464 (1991). Nevertheless, I am convinced that to award Claimant all of the permanency Dr. White has rated, with no apportionment at all for his many previous injuries, would be an abuse of discretion. The fact is Claimant’s prior spine injuries had caused him to be significantly disabled even before the forklift incident. He was receiving SSDI benefits, he was working only part-time and he was taking narcotic medications for chronic pain. These consequences did not result from the forklift incident; they were merely continued by it.
9. Claimant’s situation is distinguishable from that of the claimants in other recently decided apportionment claims. Kearney, supra; Murray v. Home Depot USA, Inc., Opinion No. 41-08WC (October 20, 2008); Kapusta v. State of Vermont Department of Health, Opinion No. 36-08WC (September 4, 2008). In each of those claims, the prior condition was no longer disabling and had resulted in few, if any, functional limitations at the time of the work injury. The difference between the circumstances of those claimants and the situation presented here is significant. Apportionment would have prevented those claimants from being made “whole.” Fairness dictates a different result in this case.
10. I conclude, therefore, that under the specific facts of this claim, it is appropriate to award Claimant only the permanency attributable to the forklift incident – 6% whole person according to Dr. White – and to apportion away that part of the total that is referable instead to his prior injuries.
11. Pursuant to 21 V.S.A. §652(c), Claimant is entitled to have these permanency benefits prorated over his life expectancy. In accordance with Finding of Fact No. 21 above, Claimant’s 6% permanency award totals $6,340.87. In accordance with Finding of Fact No. 22 above, and not including any reduction for attorney fees, Claimant’s permanency award is prorated at the rate of $18.87 per month for the remainder of his life expectancy.
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12. Claimant has filed a request for costs totaling $3,247.22 and attorney fees totaling $5,175.00 (57.5 hours at the mandated rate of $90.00 per hour). An award of costs to a prevailing claimant is mandatory under the statute. Although Claimant has only partially prevailed, it is impossible under the circumstances to separate out those costs that relate only to his successful claim. See Abare v. Ben & Jerry’s, Opinion No. 44-08WC (November 5, 2008); Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003). I decline to do so, therefore, and instead I award Claimant all of the costs he has requested.
13. As for attorney fees, in cases where a claimant has only partially prevailed, the Commissioner typically exercises her discretion to award fees commensurate with the extent of the claimant’s success. I find it appropriate to award Claimant 25% of the fees he has requested, or $1,293.75.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Permanent partial disability benefits totaling $6,340.87, representing a 6% whole person impairment to the spine;
2. Interest on the above amount pursuant to 21 V.S.A. §664, calculated from April 28, 2008;
3. Costs totaling $3,247.22 and attorney fees totaling $1,293.75.
DATED at Montpelier, Vermont this 29th day of July 2009.
__________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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