Retez Johnson v. Oly Equinox Holding Company (August 5, 2010)

Retez Johnson v. Oly Equinox Holding Company (August 5, 2010)

STATE OF VERMONT
DEPARTMENT OF LABOR

Retez Johnson Opinion No. 25-10WC

v. By: Phyllis Phillips, Esq.
Hearing Officer
Oly Equinox Holding Company
For: Valerie Rickert
Acting Commissioner

State File No. W-52247

OPINION AND ORDER

Hearing held in Montpelier, Vermont on February 5, 2010
Record closed on May 14, 2010

APPEARANCES:

Amy Palmer-Ellis, Esq., for Claimant
Corina Schaffner-Fegard, Esq., for Defendant

ISSUE PRESENTED:

Is Claimant entitled to a spinal cord stimulator trial as reasonable and necessary medical treatment for his September 5, 2004 work-related injury?

EXHIBITS:

Joint Exhibit I: Medical records

Claimant’s Exhibit 1: Preservation deposition of Dr. Al-Botros, February 2, 2010

Defendant’s Exhibit A: Curriculum vitae, Leon Ensalada, M.D., M.P.H.
Defendant’s Exhibit B: Dr. Ensalada diagram
Defendant’s Exhibit C: Preservation deposition of Dr. Drukteinis, February 25, 2010

CLAIM:

Medical benefits pursuant to 21 V.S.A. §640
Costs and attorney fees pursuant to 21 V.S.A. §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 contained in the Department’s file relating to this claim.

3. Claimant worked for Defendant as a sous chef at the Equinox Resort. On September 5, 2004 he was injured when a 300-pound warming cart toppled out of a catering truck and struck him in the area of his right hip, upper thigh and groin.

Claimant’s Prior Medical and Psychological History

4. Prior to his employment for Defendant, Claimant had both a varied work history and a fairly extensive history of work-related injuries as well. The most significant of these occurred in July 1997, when he was working on a Mississippi River cruise ship, the Delta Queen. According to the contemporaneous medical records, Claimant fell approximately 6 to 8 feet from the boat to the water, striking his head on the way down. Bystanders reported that he was pulled from the water within one minute, and remained alert throughout.

5. Initially Claimant was diagnosed with a post-concussive headache syndrome as a result of the Delta Queen incident. Later, in August and September 1997 he underwent an evaluation by Dr. Whatley, a clinical neuropsychologist, who diagnosed post-traumatic stress disorder as well.

6. Dr. Whatley administered a number of psychological tests in the course of his 1997 evaluation, including the Minnesota Multiphasic Personality Inventory-2 (MMPI-2). Notably, Dr. Whatley observed that individuals with MMPI-2 personality profiles similar to Claimant’s “often react to stress by developing physical symptoms,” and “demonstrate an extreme concern over their bodily functions.” Dr. Whatley concluded that Claimant was suffering from severe emotional distress and likely would need long-term individual psychotherapy.

7. Notwithstanding Dr. Whatley’s recommendations, Claimant appears not to have sought treatment for any emotional or psychological symptoms until June 1999, nearly two years later. At that point, he complained to Dr. Smalley, the neurologist who had treated him in the months following his 1997 injury, of insomnia, headaches, anxiety, depression, panic attacks and memory loss. Claimant also reported nighttime “spells,” but EEG monitoring revealed these to be pseudo seizures attributable to behavioral and emotional issues rather than to any abnormal brain activity. Dr. Smalley prescribed various psychotropic medications, including Xanax, Zoloft and Seroquel, to address Claimant’s symptoms, and referred him again to Dr. Whatley for further psychiatric treatment.

8. Claimant underwent individual psychotherapy with Dr. Whatley from November 1999 through March 2000, and with another psychiatrist, Dr. Dancer, from August 2000 until January 2001.

Claimant’s Medical Course following the September 5, 2004 Work Injury

9. Claimant initially treated at the Southwestern Vermont Medical Center Emergency Department following his September 5, 2004 work injury. He complained of severe right hip pain and was diagnosed with a hip contusion. Extensive imaging studies were negative for any fractures. Clinical examination did not reveal any signs of trauma around Claimant’s abdomen, genitals or peroneal region.

10. By October 2004, however, Claimant had begun to complain of worsening groin pain, radiating to his testicles, penis and upper thigh. The etiology of these symptoms has remained unclear. Most diagnoses have focused on a neuropathic source, likely related to ilioinguinal nerve damage that occurred as a result of the September 2004 work injury.

11. Claimant has undergone an extensive course of treatment for his symptoms, including physical therapy, epidural steroid injections, nerve blocks, acupuncture, inguinal hernia surgery and behavioral medicine counseling, all to no avail. At this point, his pain has become chronic. Claimant has been prescribed large dosages of Neurontin to treat his nerve pain, as well as various narcotic medications for pain management, but still routinely quantifies his pain as a 9 on a 10-point analog pain scale. He has not worked since the injury. He walks with a cane and testified that his life is stressful and painful.

12. In June 2007 the Department approved the parties’ Form 14 Settlement Agreement. This resolved Claimant’s claim for indemnity benefits on a full and final basis, but left open his entitlement to further medical and/or vocational rehabilitation benefits causally related to the September 2004 work injury.

Treatment Recommendation for Spinal Cord Stimulator

13. During the summer of 2007 Claimant and his wife moved to Oklahoma so that they could be closer to family and friends. Once there, Claimant began treating with Dr. Alhaj, a board-certified pain management specialist.

14. Among Dr. Alhaj’s initial treatment recommendations was that Claimant be considered for a spinal cord stimulator trial. A spinal cord stimulator is a surgically implanted electronic device that blocks the transmission of painful sensations from a peripheral nerve to the brain by transmitting a tingling sensation up the spinal cord instead.

15. Prior to implantation of a spinal cord stimulator, candidates first must undergo a psychological evaluation to determine if any psychological or emotional factors exist that might reduce the device’s efficacy. At Dr. Alhaj’s referral, Claimant underwent the required psychological evaluation with Dr. Hawkins, a clinical psychologist, in September 2007. Dr. Hawkins administered both the MMPI-2 and a pain inventory test. Based on this testing, he concluded that while Claimant exhibited clinical levels of anxiety and depression, these were “within normal limits for pain patients.” In Dr. Hawkins’ opinion, therefore, these findings did not disqualify Claimant from consideration for a spinal cord stimulator.

16. Dr. Hawkins did not provide the raw test data from which his conclusions were drawn, nor did he describe Claimant’s test results in any detail. There is no indication, furthermore, that he was aware of Claimant’s past medical or psychiatric history, particularly his diagnosis and treatment for post-traumatic stress disorder in the years following the 1997 Delta Queen incident.

Expert Medical Opinions in Opposition to Spinal Cord Stimulator

17. At Defendant’s request, both Dr. Ensalada and Dr. Drukteinis conducted medical records reviews and rendered opinions as to whether Claimant is an appropriate candidate for a spinal cord stimulator. Dr. Ensalada is board certified in anesthesiology and pain management and has substantial experience with a range of interventional treatments for chronic pain, including spinal cord stimulators. Dr. Drukteinis is board certified in psychiatry and neurology. Neither doctor personally evaluated Claimant prior to rendering their opinions, but both did review his complete medical file dating back to 1988.

18. In Dr. Ensalada’s opinion, Claimant is not an appropriate candidate for a spinal cord stimulator trial. In support of this opinion, Dr. Ensalada enumerated both scientific and individual factors that he feels effectively disqualify Claimant from consideration.

19. According to Dr. Ensalada, there is as yet no scientific basis for concluding that a spinal cord stimulator is a safe and effective treatment for the symptoms from which Claimant suffers. The device has been well-studied primarily in conjunction with two conditions – failed back surgery syndrome and complex regional pain syndrome – but there is no evidence to support its use for treatment of genitourinary or groin pain. Given the anatomy of the spinal cord, the stimulator works well for patients who have nerve root pain radiating to a single extremity, be it an arm or a leg. In Dr. Ensalada’s opinion, however, it would be very difficult to implant the device’s electrodes in such a way as to obtain coverage in the trunk, groin or pelvic area.

20. Beyond that concern, from his review of the medical records Dr. Ensalada concluded that individual factors related to Claimant’s psychological and behavioral makeup also made him an inappropriate candidate for a spinal cord stimulator. Dr. Ensalada noted what he believed to be evidence of Claimant’s long-standing tendency to exaggerate his response to physical injuries. He characterized this tendency as a somatoform disorder – a mental or behavior disorder in which a person unconsciously uses physical symptoms for psychological purposes.1 In Dr. Ensalada’s opinion, treatment with a spinal cord stimulator is specifically contraindicated in patients with that psychological profile.

21. Based on his own review of the medical records, Dr. Drukteinis also concluded that Claimant was not a suitable spinal cord stimulator candidate. In his opinion, Claimant’s treatment records suggested a strong psychosomatic component to his symptoms. In addition, the psychological tests that Dr. Whatley had administered following Claimant’s 1997 injury showed both a “significant psychological disturbance” and a “troubling personality makeup.” According to Dr. Drukteinis, this information warranted “extreme caution” for any invasive treatment, including a spinal cord stimulator.

22. In Dr. Drukteinis’ opinion, a longitudinal history of the patient is crucial to understanding how best to treat a pain disorder. For that reason, he specifically discounted Dr. Hawkins’ report in favor of a spinal cord stimulator trial. Because Dr. Hawkins apparently was not aware of Claimant’s extensive prior medical and psychological history, Dr. Drukteinis found his assessment incomplete and his conclusions unsustainable.

23. Claimant presented evidence from his current treating psychiatrist, Dr. Al-Botros, who testified that in his opinion Claimant does not suffer from somatoform disorder and that his current psychological state is “quite stable.” Dr. Al-Botros acknowledged, however, that his only role in Claimant’s current treatment is to prescribe and monitor his medication regimen. He does not provide psychotherapy. Dr. Al-Botros also acknowledged that he has not reviewed Claimant’s prior medical records and was not aware of any previous injuries or psychological treatment. Dr. Al-Botros was not identified as an expert on the specific question whether Claimant was an appropriate candidate for a spinal cord stimulator, and therefore did not express any opinion on that issue.

1 Somatoform disorder is not malingering. Malingering involves the voluntary manipulation of physical symptoms for external gain. With somatoform disorder, the manipulation is unconscious, involuntary and internally motivated.

CONCLUSIONS OF LAW:

1. At issue in this claim is whether Defendant should be obligated to pay for Claimant’s proposed spinal cord stimulator trial. Vermont’s workers’ compensation statute obligates an employer to pay only for those medical treatments that are determined to be both “reasonable” and causally related to the injured worker’s compensable injury. 21 V.S.A. §640(a). The Commissioner has discretion to determine what constitutes “reasonable” medical treatment given the particular circumstances of each case. The claimant bears the burden of proof on this issue. MacAskill v. Kelly Services, Opinion No. 04-09WC (January 30, 2009); P.M. v. Bennington Convalescent Center, Opinion No. 55-06WC (January 2, 2007).

2. Here, Claimant relies on the opinions of his treating physician, Dr. Alhaj, and Dr. Alhaj’s consulting psychologist, Dr. Hawkins, in support of his assertion that a spinal cord stimulator is an appropriate treatment option for him to pursue. Defendant relies on the opinions of its expert medical witnesses, Dr. Ensalada and Dr. Drukteinis, to establish that Claimant is not an appropriate candidate for the device.

3. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).

4. I find Dr. Ensalada’s and Dr. Drukteinis’ opinions to be the most credible here. Dr. Ensalada clearly described both the scientific and the individual factors that, taken together, disqualify Claimant as an appropriate spinal cord stimulator candidate. Dr. Drukteinis concurred, and pinpointed specific elements in Claimant’s psychological history to corroborate his opinion. Although neither doctor personally examined or evaluated Claimant, I find that their conclusions are well-supported nonetheless.

5. In contrast, the summary nature of both Dr. Alhaj’s and Dr. Hawkins’ conclusions makes it difficult for me to understand the basis for their opinions. The fact that neither undertook any comprehensive review of Claimant’s previous medical and psychological history prior to stating their positions further undermines their credibility. I do not doubt that they have their patient’s best interests at heart. Nevertheless, I cannot impose upon Defendant the obligation to pay for an invasive medical procedure that, based on the evidence before me, appears unlikely to succeed.

6. I conclude, therefore, that Claimant has failed to sustain his burden of proving that a spinal cord stimulator trial constitutes reasonable and necessary treatment for his September 5, 2004 work injury.

ORDER:

Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for medical benefits associated with a proposed spinal cord stimulator trial is hereby DENIED.

DATED at Montpelier, Vermont this _____ day of August 2010.

____________________
Valerie Rickert
Acting 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.

P. M v. Bennington Convalescent Center & FGB Corporation (January 2, 2007)

P. M v. Bennington Convalescent Center & FGB Corporation (January 2, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
P. M. Opinion No. 55-06WC
By: Margaret A. Mangan
v. Hearing Officer
Bennington Convalescent Center
and FGB Corporation For: Patricia Moulton Powden
Commissioner
State File No. A-25839 & U-00957
Hearing held in Montpelier on August 29, 2006
Record closed on October 2, 2006
APPEARANCES:
Patrick Biggam, Esq., for the Claimant
Tammy Denton, Esq., for Defendant NH Insurance Co./American Health Care.
Jeffrey W. Spencer, Esq. for Defendant FGB
ISSUES:
1. Was Claimant’s spinal surgery on April 14, 2003 reasonable?
2. Did Claimant suffer an aggravation or a recurrence of her previous work related back injury while working for FGB Corporation?
3. What, if any, benefits is the Claimant entitled to receive?
CLAIM:
1. Medical expenses in the amount of $57,854.11 for treatment of back injury, including surgery on April 14, 2003;
2. Legal fees in the amount of 20% of the value awarded, not to exceed $9,000;
3. Costs.
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EXHIBITS:
Joint I: Medical Records
Defendant NH Insurance Co./American Health Care:
A Verne Backus, M.D.’s Curriculum Vitae
B Kuhrt Wieneke, M.D.’s Curriculum Vitae
Defendant FGB Corp.: Photographs
Claimant’s 1: Medical Billing Packet
FINDINGS OF FACT:
1. On June 2, 1988, Claimant injured her low back while working as a nurse’s aid for American Health Care (“AHC”). The injury occurred as she bent over to catch a patient to prevent a fall. The workers’ compensation insurer for AHC accepted the claim.
2. Claimant’s attempts to return to light duty as a nurse’s aid failed.
3. In May of 1989, Dr. Gates performed a partial discectomy at L4-5, but Claimant’s pain and numbness persisted postoperatively. Later she was diagnosed with a failed back syndrome.
4. In November 1989 Claimant was released to work with a lifting restriction of ten to twelve pounds.
5. In 1990, Claimant had reached medical end result. Dr. Gates assessed permanency at 34%; Dr. Ford assessed a 28% impairment.
6. In the summer of 1991, Claimant’s work for AHC ended because she was unable to do the work.
7. Claimant continued to treat for back and leg pain and weakness. She received prescriptions for pain medication and a TENS unit.
8. A July 1992 CT scan revealed a herniated disc on the left at L4-5. Steroid therapy and facet injections followed.
9. In November 1992, Dr. Gates recommended further surgery to relieve her symptoms that he opined were related to a slow exacerbation of her work related injury. He later explained that with the disc pathology from the original injury, she had continued degeneration in the spine, narrowing the lateral recess and causing her pain.
10. The carrier refused to pay for the recommended surgery or other continued care, although it paid for medication.
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11. By November 1998, the Claimant had been babysitting children in her home for four to five years.
12. In November of 1998, Claimant began working for Defendant FGB at a Laundromat, six hours per day, five days per week. The Laundromat was self-serve. Her pain continued at the level it had been, an eight on a scale of one to ten.
13. Claimant loaded washers and dryers and folded clothes. She lifted only weight she was comfortable lifting, asking for help from coworkers for heavy items. At all times, Claimant was compliant with the twenty pound lifting restriction she had been given. In addition, she was free to take breaks and sit as needed.
14. Work at the Laundromat did not change the progression of Claimant’s pain. It worsened, but in the same way it had when she was not working. Nothing at work affected the pain.
15. Claimant missed some time from work for a shoulder injury in December 2002. When she returned in February 2003, no mention was made of any back problems. During her time out of work for the shoulder, her back symptoms progressed in the same way they did when she was working.
16. On April 14, 2003, Dr. Lapinsky performed back surgery on Claimant. The procedures were laminectomies, foraminotomies and a fusion.
17. AHC denied payment for the back surgery, arguing that the surgery was not reasonable or causally related to Claimant’s work as a nurses’ aid. Further it pointed to her later work at the Laundromat as the cause.
18. Dr. Lapinsky wrote that the basis for the fusion surgery was to address the spinal instability that would result from the decompression aspects of the surgical procedure. It was also intended to “stabilize the motion segments that have degenerated.”
19. AHC denied payment for surgery based on the opinion of Dr. Verne Backus, Occupational Medicine expert, that the fusion was not a reasonable procedure because it was performed for pain alone, without evidence of instability. However, Dr. Backus agreed that the medical community differs on this subject, with many surgeons recommending fusion surgery for pain.
20. Dr. Kuhrt Wieneke, certified in orthopedic surgery and spine surgery, performed and independent medical examination of the Claimant on November 8, 2004. Dr. Wieneke opined that the Claimant suffered a series of aggravations while working at the laundromat because her back pain was more severe at the end of the workday.
21. Dr. Christopher Brigham, an expert hired by FGB Corporation to conduct a review of the Claimant’s medical records, supported the compensability of the fusion surgery, noting that it was performed “because of the instability created by the removal of so much bone structure.”
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22. Furthermore, Dr. Brigham opined that Claimant’s condition has followed a natural history since she was injured as a nurses’ aid. That history is that of waxing and waning. He opined that nothing about the job at the Laundromat aggravated her back condition. In fact, he thought the light work there was therapeutic, as contrasted with completely sedentary work.
23. Medical records demonstrate that Claimant’s back problems began in 1988 when she hurt her back helping a patient. She developed a failed back syndrome after the first surgery. Another surgical procedure was recommended before she ever started working at the Laundromat. Claimant lived with a level of back pain that slowly increased, but with no relationship with work. Claimant continued to treat unabated from the time she was hurt in 1988 to the present. Nothing happened at the Laundromat that worsened her condition.
24. Claimant incurred $57,854.11 in expenses for treatment related to the back injury, including the surgery.
25. The Claimant is requesting attorney fees and costs. Claimant’s Counsel has a 33 and 1/3% Fee Agreement with the Claimant. The Claimant has included an itemized list of litigation costs totaling $810.75.
CONCLUSIONS OF LAW:
1. In a worker’s compensation case, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, Morse Co., 123 Vt. 161 (1962). The claimant 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).
2. There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the inference from the facts proven must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
Compensability of Surgery
3. On the reasonableness of the surgery, Claimant has the burden of proof pursuant to 21 V.S.A. § 640(a). “In determining what is reasonable under § 640(a), the decisive factor is not what the claimant desires or what [he] believes to be the most helpful. Rather, it is what is shown by competent expert evidence to be reasonable to relieve the claimant’s back symptoms and maintain [his] functional abilities.” Quinn v. Emery Worldwide, Opinion No. 29-00WC (2000).
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4. The strong opinions of Dr. Lapinsky and Dr. Brigham convince me that the surgery performed by Dr. Lapinksy was reasonable and, therefore, compensable. 21 V.S.A. § 678 (a). The argument against compensability comes from Dr. Backus who opined that a fusion is performed only for spinal instability. The other experts amply address this concern by explaining that bone loss from the other surgical procedures put the Claimant at risk for instability, supporting the decision for a fusion. Further, degeneration in the Claimant’s spine also led to the need to stabilize motion segments with a fusion.
5. Therefore, the responsible carrier must pay the medical bills related to Claimant’s back injury, including costs of the surgery Dr. Lapinsky performed on April 14, 2003, subject to the fee schedule in Workers’ Compensation Rule 40.000. That total is $57,854.11.
Aggravation or recurrence
6. Next is the question whether Claimant’s current condition is a recurrence, making AHC the responsible employer; or whether it is an aggravation, with FBG as the responsible party. “Generally, when two employers or insurers dispute liability for a workers’ compensation claim arising out of successive injuries, the liability remains with the first insurer or employer if the second injury is a recurrence of the first.” Farris, 177 Vt. at 458, citing Pacher v. Fairdale Farms, 166 Vt. 626, 627 (1997) (mem.). “If, however, the second incident aggravated, accelerated, or combined with a preexisting impairment or injury to produce a disability greater than would have resulted from the second injury alone, the second incident is an ‘aggravation,’ and the second employer becomes solely responsible for the entire disability at that point.” Id.
7. “[T]he employer or insurer at the time of the most recent personal injury …shall have the burden of proving another employer’s or insurer’s liability.” 21 V.S.A. § 662(c). Farris v. Bryant Grinder, 177 Vt. 456, 461 (2005). Therefore, FGB has the burden of proving AHC’s liability.
8. The question turns on the medical evidence. Dr. Backus and Dr. Wieneke believe that Claimant’s work at the Laundromat accelerated her back condition, making it an aggravation under the law of Vermont. On the other side are Dr. Brigham and Dr. Lapinsky, each of whom opined that Claimant’s current condition is the natural progression of her underlying condition.
9. Where medical experts disagree, the Department considers the following factors: (1) the nature of treatment and length of time there has been a patient-provider relationship; (2) whether accident, medical and treatment records were made available to and considered by the examining physician; (3) whether the report or evaluation at issue is clear and thorough and included objective support for the opinions expressed; (4) the comprehensiveness of the examination; and (5) the qualifications of the experts, including professional training and experience; Morrow v. Vt. Financial Services Corp., Opinion No. 50-98WC (Aug. 25, 1998); Durand v. Okemo Mountain, Opinion No. 41S-98WC (Jul. 20, 1998).
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10. Dr. Lapinsky’s opinion carries greater weight for several reasons. First, the Department has traditionally given greater weight to the treating physician’s opinion. Searles v. Price Chopper, Opinion No. 68S-98WC (1998) (citing Mulinski v. C&S Wholesale Grocers, Opinion No. 34-98WC (June 11, 1998)). This case is no exception; Dr. Lapinsky’s education and experience as an orthopedic surgeon grant him a greater understanding of the Claimant’s condition than either occupational medical expert. Also, while Doctors Wieneke and Lapinsky are both experienced orthopedic surgeons, Doctor Lapinsky’s first-hand knowledge again tips the balance in his favor.
11. The evidence further strengthens Dr. Lapinsky’s opinion regarding the diagnosis and treatment of the Claimant. First, Dr. Gates initially recommended a second surgery to treat the Claimant’s destabilized and degenerating condition six years before the Claimant ever began working for Defendant FGB. Second, the Claimant’s pain and disability continued steadily from the early 1990’s until the 2003 surgery. Finally, the Claimant continued to experience pain in the same manner whether or not she was performing work related activities.
12. Therefore, the evidence supports recurrence in this case.
Attorney Fees and Costs
Based on 21 V.S.A. § 678(a) and Rule 10, Claimant is awarded Attorney fees of 20% of the total award or $9,000, whichever is less.
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ORDER:
THEREFORE, based on the above Findings of Fact and Conclusions of Law, the Defendant NH Insurance Co./American Health Care is ORDERED to pay:
1. Medical expenses related to the back injury, including the April 2003 surgery, in the amount of $57, 854.11;
2. Interest from the date each medical expense was incurred;
3. Litigation costs of $810.75;
4. Attorney fees of 20% or $9,000.00, whichever is less.
Dated at Montpelier, Vermont this 2nd day of January 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.

Debra Morrisseau v. Hannaford Brothers (August 8, 2012)

Debra Morrisseau v. Hannaford Brothers (August 8, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Debra Morrisseau Opinion No. 21-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Hannaford Brothers
For: Anne M. Noonan
Commissioner
State File No. BB-00676
OPINION AND ORDER
Hearing held in Montpelier on May 9, 2012
Record closed on June 25, 2012
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Robert Mabey, Esq., for Defendant
ISSUES PRESENTED:
1. Does Dr. Fenton’s proposed treatment plan constitute reasonable medical treatment causally related to Claimant’s August 20, 2009 compensable work injury?
2. Did Claimant reach an end medical result for her compensable work injury on or before April 30, 2011?
3. Is Claimant entitled to additional temporary total and/or temporary partial disability benefits?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Temporary partial disability benefit calculation, with supporting pay stubs
Defendant’s Exhibit A: Medical records
Defendant’s Exhibit B: Curriculum vitae, Richard Levy, M.D.
Defendant’s Exhibit C: Dr. Levy report, October 2, 2011
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CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Temporary partial disability benefits pursuant to 21 V.S.A. §646
Medical benefits pursuant to 21 V.S.A. §640(a)
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 675
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 contained in the Department’s file relating to this claim.
3. Claimant began working as a part time associate in Defendant’s bakery in 2002. Her duties included preparing baked goods for sale, decorating cakes and generally servicing the bakery department.
Claimant’s August 2009 Work Injury and Subsequent Treatment Course
4. On August 20, 2009 Claimant was lifting a box of frozen cookie dough at work when she felt a pop in her right hand, followed by intense pain in her palm and triggering in her ring and small fingers. She reported the injury to her supervisor, and later in the day sought medical treatment.
5. Defendant accepted Claimant’s injury as compensable and began paying workers’ compensation benefits accordingly.
6. Initially Claimant was diagnosed with a right wrist sprain. Her pain predominated on the ulnar (outer) side of her palm and wrist, radiating out to her ring and small fingers and up into the ulnar area of her elbow. Intermittently she experienced sharp, severe pains, which she described as “zingers,” as well, emanating from the wrist joint itself.
7. When her symptoms failed to improve with physical therapy, in September 2009 Claimant was referred to Dr. Frenzen, an orthopedic surgeon, for further evaluation. Diagnostic imaging studies revealed a TFCC (triangular fibrocartilage complex) tear in her wrist, as well as some evidence of ulnar impaction syndrome. The latter condition occurs when there is a variance in length between the ulna and the radius (the two forearm bones) at the wrist.
8. Imaging studies also documented degenerative changes in Claimant’s wrist joint. These were most likely age-related and/or accelerated by a fracture she had sustained many years earlier on the distal (thumb) side of her wrist.
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9. Dr. Frenzen attributed Claimant’s ulnar-sided wrist pain to her TFCC tear. Without making a clear statement as to causal relationship, he acknowledged that “certainly the [August 2009 work injury] has set up a series of events by which her wrist has become painful.”
10. After rest and a cortisone injection proved ineffective, in December 2009 Dr. Frenzen performed arthroscopic surgery to address both the TFCC tear and the ulnar variance at Claimant’s wrist.
11. Post-surgery, Claimant continued to suffer aching pain and diminished range of motion in her wrist, intermittent but painful “zingers,” and numbness and tingling in her ring and small fingers. Electrodiagnostic studies in May 2010 documented mild carpal tunnel and cubital tunnel syndromes, as well as mild swelling of the ulnar nerve at the wrist. Dr. Frenzen was unable to explain these findings in the context of his TFCC repair surgery.
12. At Defendant’s request, in June 2010 Claimant underwent an independent medical evaluation with Dr. Davignon. Based both on his physical examination and on his review of the pertinent medical records, Dr. Davignon concluded as follows:
• That Claimant’s right wrist symptoms were causally related to her work injury;
• That all treatment to date had been reasonable and necessary; and
• That the degenerative changes in Claimant’s wrist were probably preexisting, but likely were aggravated by the work injury.
13. In June 2010 Dr. Frenzen referred Claimant to Dr. Johansson for further treatment. Dr. Johansson, an osteopath, is the medical director of the Vermont Center for Occupational Rehabilitation (VCOR). Among the services VCOR offers are physical therapy, myofascial therapy, biofeedback and pain management.
14. Claimant participated in the VCOR intensive rehabilitation program from June through November 2010. When her symptoms failed to respond to a cortisone injection midway through the program, Dr. Johansson referred her to Dr. Murphy, an orthopedic surgeon at Dartmouth Hitchcock Medical Center, for a second opinion.
15. Dr. Murphy evaluated Claimant in September 2010. He concluded that there was no good surgical solution to her ongoing symptoms. Instead, he recommended continued conservative management, including injections, splinting, anti-inflammatories and activity modification. From my review of the medical evidence, I find that Claimant already had undergone the therapies Dr. Murphy suggested, with no appreciable improvement in her symptoms.
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16. As for the cause of Claimant’s symptoms, Dr. Murphy concluded that the August 2009 work injury likely resulted in an aggravation of the preexisting, underlying arthritis and pathology in her wrist.1
17. Following Dr. Murphy’s examination, Claimant returned to VCOR to complete her rehabilitation program. At his final evaluation on November 30, 2010 Dr. Johansson commented that Claimant still experienced pain, swelling and “zingers” in her wrist, but that she had developed coping strategies to allow her to better manage her pain. Dr. Johansson concluded that Claimant had reached an end medical result for her work injury, and rated her with a 5 percent permanent impairment referable to her wrist. He also released her to return to work on a full time basis, but with permanent light duty restrictions. These included limitations against lifting more than 10 pounds occasionally or performing repetitive tasks.
18. Dr. Johansson attributed the cause of Claimant’s symptoms to a “flare up” of her preexisting osteoarthritic condition, which he asserted had been in a state “where it was more likely than not going to become a problem sooner rather than later” even had the August 2009 work injury not occurred. Notwithstanding this prediction, I find from the medical evidence that in fact Claimant’s preexisting condition had been entirely asymptomatic for many years prior to her work injury, and particularly that it had not restricted her ability to function in any respect. Dr. Johansson’s conclusion that despite ongoing pain and now permanent work restrictions Claimant had returned to her preexisting osteoarthritic baseline is plainly contradicted by this evidence.
19. At her attorney’s recommendation, and because she was dissatisfied with the conclusions stated in Dr. Johansson’s final report, in March 2011 Claimant returned to Dr. Murphy for an additional evaluation. Dr. Murphy found her condition to be essentially unchanged from his September 2010 exam, and reiterated his opinion that her symptoms would likely best be managed conservatively rather than surgically. Given the persistent numbness and tingling in her wrist, however, Dr. Murphy suggested that repeat electrodiagnostic studies would be helpful to determine whether her carpal tunnel syndrome had progressed.
20. With Dr. Johansson’s November 2010 end medical result determination as support, the Department approved Defendant’s discontinuance of temporary disability benefits effective April 30, 2011.
21. In June 2011 Claimant underwent repeat electrodiagnostic studies, as Dr. Murphy had suggested, with Dr. Zweber, the same neurologist who had performed her prior studies in May 2010. In his report, which documented no significant changes from the prior exam, Dr. Zweber noted that Claimant was considering a second opinion with Dr. Fenton, a specialist in interventional pain management. Dr. Zweber considered this to be an appropriate approach for Claimant to pursue.
Dr. Fenton’s Proposed Treatment Plan
1 Although Dr. Murphy did not specify the work injury as the cause of the aggravation in the report of his September 2010 evaluation, he did so later, in the context of his repeat evaluation in March 2011. See Finding of Fact No. 19, infra.
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22. Claimant began treating with Dr. Fenton on September 1, 2011. Dr. Fenton, an osteopath, is board certified in physical medicine and rehabilitation. His clinical focus is on musculoskeletal and non-surgical orthopedic medicine. Fifty percent of his current practice involves upper extremity conditions.
23. Dr. Fenton diagnosed Claimant with osteoarthritis, joint inflammation and mild carpal tunnel syndrome at the wrist, and cubital tunnel syndrome and nerve irritation, or neuritis, at the elbow. In his analysis, which I find credible, all of these conditions were either caused or aggravated by the August 2009 work injury. According to Dr. Fenton, the abnormal motion and muscle guarding that resulted from both the injury and the subsequent surgery likely caused Claimant’s ulnar neuritis to develop. Similarly, abnormal motion in the context of preexisting osteoarthritis in the wrist likely increased the pressure on her median nerve and thus led to the development of carpal tunnel syndrome.
24. The treatment approach that Dr. Fenton has suggested for these conditions is somewhat controversial. It is comprised of the following components:
• Diagnostic ultrasound of the median and ulnar nerves to better evaluate the extent of nerve compression and irritation;
• Ultrasound-guided hydro-dissection of the ulnar nerve at the elbow; and
• Ultrasound-guided corticosteroid injection in the wrist to identify the primary pain generator, followed by ultrasound-guided injections of platelet rich plasma.
25. Dr. Fenton has been using diagnostic ultrasound as a complement to electrodiagnostic testing for peripheral nerve entrapment disorders for more than eight years. Such testing is the standard of care among European orthopedists, and is also well accepted in the United States, though it is not prevalent in Vermont. Particularly with respect to diagnosing ulnar nerve compression, ultrasound has a very low false negative, meaning that it rarely misses abnormal findings. In contrast, although many U.S. doctors consider electrodiagnostic studies to be the gold standard for diagnosing both median and ulnar nerve compression syndromes, they yield a much higher rate of false negative findings and often do not correlate well with the severity of a patient’s symptoms.
26. In Claimant’s case, diagnostic ultrasound indicated fairly severe inflammation of the ulnar nerve at the elbow, which in Dr. Fenton’s assessment required further intervention. Given the correlation between Dr. Fenton’s findings and the severity of Claimant’s ongoing symptoms, I find his analysis in this regard credible.
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27. Dr. Fenton has recommended hydro-dissection as treatment for Claimant’s ulnar nerve irritation. This procedure uses a series of fluid injections to open up the space between the nerve and the tissue surrounding it, in much the same manner that a scalpel would during surgery. Though not experimental, hydro-dissection is still an emerging treatment approach, and therefore the medical literature as to its effectiveness is limited. Nevertheless, it is, as Dr. Fenton described it, “quite hot in the international pain world,” and is widely performed in that arena as a safer alternative to surgery.
28. Claimant already has undergone one hydro-dissection procedure in her elbow, in September 2011. Subsequently, her symptoms improved significantly for some time, with less discomfort and fewer “zingers” than previously. Dr. Fenton anticipates that Claimant will require one or two additional treatments, each spaced approximately twelve weeks apart, in order to realize lasting, restorative benefit. Given that Claimant derived substantial benefit from the first procedure, I find persuasive Dr. Fenton’s prediction of additional success with further treatments.
29. As for the wrist, with the benefit of ultrasound guided cortisone injections Dr. Fenton recently has identified an area on the thumb side of Claimant’s wrist as the most likely pain generator. As treatment, he has recommended that she undergo a series of platelet rich plasma (PRP) injections. Plasma that is highly concentrated in platelets is thought to release growth factors that attract stem cells and stimulate tissue regeneration. PRP injection therapy is widely accepted among sports medicine orthopedists, but due to the paucity of evidence-based studies is still considered experimental in cases involving joint injuries. In his own clinical experience, Dr. Fenton estimates he has obtained excellent results in approximately 75 percent of the wrist injuries he has treated with PRP injections.
30. Claimant has not yet undergone any PRP injections, as neither Defendant nor her group health insurer has agreed to cover them. As an alternative, Dr. Fenton has performed a series of local anesthetic injections. These have afforded Claimant some limited palliative relief of her wrist symptoms, but do not have any long-lasting, regenerative effect. Were she to undergo PRP injection therapy, Dr. Fenton anticipates a series of three injections, each four to six weeks apart.
31. Because both hydro-dissection and PRP injection therapies are restorative rather than palliative in nature, in Dr. Fenton’s opinion Claimant should not be considered at end medical result until both series of treatments have been completed.
32. Dr. Fenton acknowledged that he did not review Claimant’s medical records, was unfamiliar with the surgical technique Dr. Frenzen utilized to address the ulnar variance in her wrist and did not personally study the results of Dr. Zweber’s electrodiagnostic testing. I find that these omissions were not critical to the formulation of his treatment plan, which was based instead on his specialized experience with the therapies he has proposed.
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Dr. Levy
33. Defendant’s expert, Dr. Levy, presented a different view of Dr. Fenton’s proposed treatment plan. Dr. Levy is a board certified neurologist. He did not personally examine Claimant, but reviewed her medical records in October 2011.
34. Dr. Levy acknowledged that Claimant’s August 2009 work injury likely caused her TFCC tear, and that Dr. Frenzen’s surgery constituted reasonable treatment. He also concurred with Dr. Murphy’s opinion that the work injury likely aggravated the underlying osteoarthritis in her right wrist, at least for a time. In Dr. Levy’s opinion, however, at this point Claimant’s ongoing symptoms are due solely to the natural progression of that preexisting condition, and are no longer related to her work injury in any respect.
35. Dr. Levy also concluded that there likely was no causal relationship between Claimant’s work injury and her peripheral nerve entrapment disorders. In his opinion, an injury to the outer part of her wrist could not possibly have resulted in nerve compression at the elbow. As for her median nerve compression, Dr. Levy maintained that this likely was caused solely by preexisting osteoarthritis.
36. Dr. Levy acknowledged his unfamiliarity with the use of ultrasound as a tool for diagnosing peripheral nerve disorders, and emphasized instead that in Claimant’s case, electrodiagnostic studies had revealed only mild entrapment. In his opinion, those results did not justify anything other than conservative treatment, such as splinting, stretching, physical therapy and possibly corticosteroid injections. However, I find from the medical evidence that Claimant already has undergone these therapies, without any appreciable improvement in her symptoms.
37. Dr. Levy was also unfamiliar with the efficacy of either hydro-dissection or PRP injections as treatment for Claimant’s symptoms. He has no personal experience with either therapy, and gleaned only limited information about them from online research. In his opinion, neither treatment meets the recognized standard of care at this time.
Claimant’s Post-Injury Wages and Temporary Disability Claim
38. Claimant’s average weekly wage at the time of her August 2009 injury was $421.05. This yields a current weekly compensation rate for temporary total disability of $378.96.
39. As documented by her pay stubs, on August 14, 2011 Claimant began working as a home support aide for developmentally disabled adults. She also worked briefly as a substitute teacher, but stopped doing so when her home support aide hours increased. The work is non-physical and therefore is largely unaffected by the ongoing symptoms in her wrist. Claimant acknowledged in her formal hearing testimony that at least since February 2012 any differential between her current wages and her pre-injury wages is due primarily to client scheduling issues, not to any injury-related disability.
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40. In support of her claim for temporary partial disability benefits, Claimant submitted a calculation sheet purporting to summarize the weekly differentials between the wages she has received since returning to work and her pre-injury wages. The calculation sheet lists September 9, 2011 as the first week during which Claimant earned wages; however, the accompanying pay stubs show wages paid beginning on August 14, 2011. Factoring in those wages (two weeks at $206.94 per week), I find that through February 3, 2012 the total differential between Claimant’s pre-injury wages and her post-injury earnings was $4,418.64. Should she be deemed entitled to temporary partial disability benefits for this period, in accordance with 21 V.S.A. §646 the total amount owed would be $2,916.30.
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. Vermont’s workers’ compensation statute obligates an employer to pay only for those medical treatments that are determined to be both “reasonable” and causally related to the compensable injury. 21 V.S.A. §640(a); MacAskill v. Kelly Services, Opinion No. 04-09WC (January 30, 2009). The commissioner has discretion to determine what constitutes “reasonable” medical treatment given the particular circumstances of each case. Id. A treatment can be unreasonable either because it is not medically necessary or because it is not related to the compensable injury. Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January 20, 2010).
3. The disputed issues here implicate both of these grounds for determining reasonableness. Claimant asserts that her ongoing symptoms are causally related to her work injury, that Dr. Fenton’s proposed treatment plan is medically necessary, and that until she completes it she cannot be deemed to have reached an end medical result. Defendant argues that she has reached an end medical result for her work injury, that her ongoing symptoms are no longer causally related, and that even if they were Dr. Fenton’s proposed treatments are unproven and therefore medically inappropriate.
4. The parties presented conflicting medical evidence as to the causal relationship question. 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).
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5. Neither party’s expert dominates when considering these factors. Dr. Fenton failed to review the pertinent medical records, but benefitted nonetheless from having personally examined Claimant on numerous occasions. Dr. Levy conducted a complete file review, but never discussed the severity of Claimant’s symptoms directly with her. Both experts stated their causation opinions emphatically, but neither provided much in the way of detailed explanation. Both possess impressive qualifications, though their training and experience is in markedly different areas.
6. After closely considering the evidence, I conclude that Dr. Fenton’s causation analysis is the most credible. I am persuaded that Claimant’s current symptoms are attributable to the abnormal motion and muscle guarding that followed her August 2009 work injury and subsequent surgery, thus aggravating the preexisting pathology in her wrist.
7. Even Dr. Levy acknowledged that the work injury likely caused some aggravation of the underlying pathology in Claimant’s wrist, at least for a time. Without explaining when or why the consequences of that aggravation ended, however, I cannot accept his conclusion that her symptoms are no longer related. It is true that a temporal relationship alone is often insufficient to establish causation, Norse v. Melsur Corp., 143 Vt. 241, 244 (1983), but where symptoms that did not exist before are lit up by a work injury and then continue essentially unabated thereafter, breaking the causal link requires more than mere speculation. See J.G. v. Eden Park Nursing Home, Opinion No. 52-05WC (September 8, 2005), and cases cited therein.
8. Having concluded that Dr. Fenton’s treatment plan is reasonable in the sense that it is related to Claimant’s compensable injury, I next consider whether it is medically necessary. I conclude that it is.
9. The determination whether a treatment is medically necessary must be based primarily on evidence establishing the likelihood that it will improve the patient’s condition, either by relieving symptoms and/or by maintaining or increasing functional abilities. Cahill v. Benchmark Assisted Living, Opinion No. 13-12WC (April 27, 2012); Quinn v. Emery Worldwide, Opinion No. 29-00WC (September 11, 2000). An injured worker’s subjective preferences cannot render a medically unreasonable treatment reasonable. See, Britton v. Laidlaw Transit, Opinion No. 47-03WC (December 3, 2003). As is the case with many aspects of medical decision-making, however, there can be more than one right answer, and thus more than one reasonable treatment option for any given condition. Lackey v. Brattleboro Retreat, Opinion No. 15-10WC (April 21, 2010).
10. Weighing the expert testimony here, I conclude that Dr. Fenton’s opinion as to the efficacy of ultrasound as a complement to electrodiagnostic testing in cases such as Claimant’s is more credible than Dr. Levy’s. Dr. Levy acknowledged his unfamiliarity with the use of this technique, which renders his opinion less persuasive. In contrast, Dr. Fenton’s experience weighs heavily in his favor. The fact that ultrasound testing revealed findings consistent with the severity of Claimant’s symptoms, whereas electrodiagnostic studies failed to do so, is also telling. I conclude that the ultrasound testing was medically necessary and therefore compensable.
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11. I also conclude that Dr. Fenton’s proposed treatment plan, including both hydro-dissection of the ulnar nerve at the elbow and PRP injections at the wrist, are medically necessary and therefore compensable as well. Again, I accept Dr. Fenton’s opinion as more credible than Dr. Levy’s on this issue. I am convinced both by his clinical experience with other patients and by Claimant’s own positive response to the initial procedure that Dr. Fenton’s plan offers a reasonable prospect of symptom relief and improved function.
12. Dr. Levy’s principal argument against both hydro-dissection and PRP injections appears to be simply that they are new and unfamiliar to him. This is true. Dr. Levy did not cite to any specific studies establishing the treatments to be either unsafe or ineffective, however, and Dr. Fenton testified credibly that at least in his experience the opposite has so far proven true. Claimant already has tried the more conservative therapies Dr. Levy suggested without success, furthermore. Under the particular circumstances of this case, I conclude that it is appropriate to afford her the opportunity to attempt a different approach.
13. I conclude that Dr. Fenton’s treatment plan is medically necessary and therefore compensable. Because the treatment is intended to be restorative rather than merely palliative, furthermore, I conclude that Claimant cannot be considered at end medical result until she completes it. 21 V.S.A. §642; Coburn v. Frank Dodge & Sons, 165 Vt. 529 (1996).
14. As Claimant had neither reached an end medical result nor successfully returned to work as of April 30, 2011 I conclude that Defendant was not justified in terminating her temporary total disability benefits on that date. 21 V.S.A. §643. To the contrary, I conclude that Claimant should have received ongoing temporary total disability benefits until August 14, 2011, the date upon which she began working at her current job. This period totals 15 weeks, payable at the temporary total disability rate of $378.96 per week, or $5,684.40.
15. I conclude that Claimant was entitled to temporary partial disability benefits beginning August 14, 2011, but only for so long as her reduced earning power was related to her work injury rather than to other factors, such as her clients’ scheduling issues. 21 V.S.A. §646; Orvis v. Hutchins, 123 Vt. 18 (1962). Based on Claimant’s own testimony, I conclude that any differential between pre- and post-injury wages after February 3, 2012 was no longer attributable to a work-related disability. For the period from August 14, 2011 through February 2, 2012 I conclude that Claimant is owed temporary partial disability benefits totaling $2,916.30.
16. As Claimant has substantially prevailed on her claim for benefits, she is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit her itemized claim.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total disability benefits totaling $5,684.40, in accordance with 21 V.S.A. §642, with interest calculated from April 30, 2011 in accordance with 21 V.S.A. §664;
2. Temporary partial disability benefits totaling $2,916.30, in accordance with 21 V.S.A. §646, with interest calculated from August 14, 2011 in accordance with 21 V.S.A. §664;
3. Medical benefits covering all reasonable medical services and supplies necessitated by Claimant’s August 20, 2009 work injury, including but not limited to the treatments rendered to date and currently proposed by Dr. Fenton, in accordance with 21 V.S.A. §640; and
4. Costs and attorney fees in amounts to be determined, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 8th day of August 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.

Pamela (Barrett) Simmons v. Landmark College Inc. (February 28, 2013)

Pamela (Barrett) Simmons v. Landmark College Inc. (February 28, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Pamela (Barrett) Simmons Opinion No. 07-13WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Landmark College, Inc.
For: Anne M. Noonan
Commissioner
State File No. W-59833
OPINION AND ORDER
Hearing held in Montpelier, Vermont on March 1, 2012
Record closed on January 7, 2013
APPEARANCES:
Thomas Bixby, Esq., for Claimant
Bonnie Shappy, Esq., for Defendant
ISSUE PRESENTED:
Did Claimant’s May 2011 cervical surgery constitute reasonable medical treatment for her compensable March 2005 work injury?
EXHIBITS:
Joint Exhibit I: Medical Records
Claimant’s Exhibit 1: First Report of Injury
Claimant’s Exhibit 2: Agreement for Permanent Partial Disability Compensation (Form 22)
Claimant’s Exhibit 3: Ergonomic Work Site Evaluation, February 11, 2008
Claimant’s Exhibit 7: Letter from Attorney Bixby to Claimant, August 18, 2011
Claimant’s Exhibit 8: Summary of invoices from Attorney Bixby, July 31, 2011
Claimant’s Exhibit 9: Handwritten notes taken by Dr. Wieneke
Claimant’s Exhibit 10: Dr. Magnadottir deposition, September 14, 2012
Defendant’s Exhibit A: Curriculum vitae, Dr. Wieneke
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CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Medical benefits pursuant to 21 V.S.A. §640(a)
Vocational rehabilitation benefits pursuant to 21 V.S.A. §641
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
RULING ON POST-HEARING MOTIONS:
Motion to Strike Dr. Wieneke’s Post-Hearing Report
Because Claimant’s expert witness, Dr. Magnadottir, was not available to testify at the formal hearing, Defendant agreed to present its own expert witness, Dr. Wieneke, out of turn, with the proviso that he be allowed an opportunity to comment on Dr. Magnadottir’s testimony once her deposition was proffered post-hearing. Claimant asserts that the written report in which he did so merely restated his hearing testimony and therefore should be stricken as irrelevant. I disagree. The report contained opinion evidence germane to Dr. Magnadottir’s testimony. Claimant’s Motion to Strike is DENIED.
Motion for Directed Verdict
Claimant filed a motion for directed verdict on the issue of causal relationship. A motion for directed verdict was a form of pleading under both the civil and criminal rules of procedure. It has since been abolished and replaced, in the civil context with a Motion for Judgment as a Matter of Law, V.R.C.P. 50(a), and in the criminal context with a Motion for Judgment of Acquittal, V.R.Cr.P. 29. The purpose of such motions is to remove a case from consideration by a jury in situations where judgment for the moving party is required as a matter of law. Where there is no jury, as is the case in administrative proceedings such as this one, a post-hearing motion for judgment serves no purpose. Claimant’s Motion for Directed Verdict is therefore DENIED.
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 contained in the Department’s file relating to this claim as well as the Commissioner’s prior decision in this claim, Barrett-Simmons v. Landmark College, Inc., Opinion No. 35-10WC (November 16, 2010). In addition, judicial notice is taken of the December 9, 2010 vocational rehabilitation report prepared by Claimant’s vocational rehabilitation counselor, Jay Spiegel.
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Claimant’s Work Injury and Prior Medical History
3. Claimant worked for Defendant as a housekeeper. On March 18, 2005 she slipped and fell on a wet floor. Claimant injured her neck and right shoulder in the fall. Defendant accepted this injury as compensable and paid workers’ compensation benefits accordingly.
4. Over the course of the next three years Claimant underwent three surgeries, including fusions at two cervical spine levels. Unfortunately, all of these surgeries failed. Her symptoms, which include pain, muscle spasms and limited range of motion in her neck and right shoulder, have persisted.
5. Following her third surgery, in February 2009 Claimant’s treating neurosurgeon, Dr. Magnadottir, determined that she had reached an end medical result. The Department later approved the parties’ proposed Agreement for Permanent Partial Disability Compensation (Form 22), by the terms of which Claimant received compensation for a 23.5 percent whole person permanent impairment referable to her cervical spine. The compensable injury was described in the Agreement as “right shoulder/upper back, C4-7.”
Claimant’s Fourth Cervical Surgery
6. In February 2011 Claimant returned to Dr. Magnadottir for another neurosurgical consult. She reported that over the course of the prior year her neck pain had been constant and her right shoulder pain had worsened. In addition, her symptoms now involved her right hand. Claimant described dropping things, making messes and burning her right hand while cooking. She had not suffered any new injuries, falls or motor vehicle accidents to account for these new and/or worsening symptoms.
7. Dr. Magnadottir’s physical examination revealed that Claimant exhibited symmetric motor function (except for some give-way weakness in the right deltoid) and symmetric reflexes and sensation, but a substantial amount of myofascial pain1 and tenderness bilaterally in the trapezoids and rhomboids. A review of Claimant’s cervical spine and right shoulder MRI at this office visit showed tendonitis and significant narrowing of the C5 foramen.
8. Dr. Magnadottir discussed Claimant’s potential treatment options with her. These included exercises, physical therapy and surgery. Claimant took some time to decide, and ultimately chose to pursue surgery. Once her decision was made, Dr. Magnadottir described Claimant as being “very strong” in her desire to proceed in this manner. I find that Claimant elected surgical treatment with full knowledge and understanding that it would not alleviate her major complaint of persistent myofascial right shoulder pain.
1 Myofascial pain is muscular pain that is very non-specific and difficult to diagnose. It is a non-radicular pain that does not follow a nerve root pattern. The affected muscle often has “trigger points,” that is, hyper-irritable spots and associated palpable nodules in skeletal muscle.
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9. In May 2011, Claimant underwent the fourth surgery, a procedure to decompress the C5 nerve root. As expected, the surgery did not alleviate the persistent myofascial pain in her right shoulder. The symptoms in her right hand have abated, though it is unclear why. Medically, there is no reason why nerve compression at the C5 level would have resulted in the symptoms Claimant reported, and therefore no reason why surgical decompression would have caused them to resolve.
Expert Medical Opinions
(a) Dr. Magnadottir
10. Dr. Magnadottir testified by deposition. She is a board certified neurosurgeon. She performed Claimant’s third cervical surgery in 2009, and her fourth surgery (the subject of the pending compensability dispute) in May 2011. In formulating her opinion as to the reasonableness of the latter surgery, Dr. Magnadottir did not review Claimant’s entire medical history, but rather relied on her knowledge of Claimant’s condition since she began treating her.
11. In Dr. Magnadottir’s opinion, Claimant’s May 2011 surgery was causally related to her compensable work injury. Claimant suffered from disc disease at the C5, C6 and C7 levels, and had undergone cervical fusion at the C5-6 level. According to the accepted medical literature, disc disease in one joint significantly contributes to the development of disc disease in adjacent joints as well.
12. As to the medical necessity of a fourth surgery, Dr. Magnadottir relied primarily on the fact that Claimant’s recent MRI showed her C5 foramen to be significantly narrowed. With this finding in mind, Dr. Magnadottir anticipated that repeat surgery at that level might relieve at least some of Claimant’s pain. However, Dr. Magnadottir did not refer Claimant for electrodiagnostic studies in order to determine whether there were objective signs of nerve damage at C5. Nor did she recommend that Claimant undergo diagnostic epidural injections in the C5 root, to see if she would experience any relief from pain at this root level. Dr. Magnadottir reasoned that even if there was relief, it would be short lived.
13. Dr. Magnadottir acknowledged that the May 2011 surgery would not address the persistent myofascial pain in Claimant’s right shoulder. She also acknowledged that Claimant’s pain complaints were all subjective in nature. Last, Dr. Magnadottir acknowledged that damage to the C5 nerve root would not in any way manifest itself in the type of hand symptoms Claimant was reporting. I find that these facts significantly undermine Dr. Magnadottir’s opinion that Claimant’s May 2011 surgery constituted reasonable and necessary medical treatment.
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(b) Dr. Wieneke
14. At Defendant’s request Dr. Wieneke, a board certified orthopedic surgeon, performed an independent medical examination of Claimant for the purpose of determining whether a fourth surgery would have constituted reasonable treatment for her 2005 work injury. Dr. Wieneke had evaluated Claimant previously and therefore was familiar with her medical history.2 Before performing his most recent examination, Dr. Wieneke also reviewed all of Claimant’s past and current medical records.
15. In Dr. Wieneke’s opinion, Claimant’s fourth surgery did not constitute reasonable and necessary medical treatment. He based this opinion on the following:
• Prior to 2011, all of Claimant’s EMG studies were negative, indicating no C5 nerve root damage that would warrant surgery;
• There was no current electrodiagnostic evidence of radiculopathy to confirm Claimant’s current complaints of pain;
• Claimant’s give-way weakness in her right deltoid was a Waddell sign, which suggested a psychological component to her pain complaints;
• The C5 nerve root distribution does not manifest itself in the hand, and therefore damage or compression at that level would not explain Claimant’s most recent symptoms; and
• Claimant had already undergone three major cervical surgeries with virtually no improvement and little likelihood of success with a fourth surgery.
16. I find Dr. Wieneke’s review and knowledge of Claimant’s medical condition extensive and his opinions well supported by objective evidence.
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 Dr. Wieneke evaluated Claimant’s case on four different occasions. He performed independent medical examinations of Claimant in 2006, 2009 and October 2011. He performed a records review in May 2011.
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2. At issue here is whether Claimant’s May 2011 surgery is compensable. Vermont’s workers’ compensation statute obligates an employer to pay only for those medical treatments that are determined to be both “reasonable” and causally related to the compensable injury. 21 V.S.A. §640(a); MacAskill v. Kelly Services, Opinion No. 04-09WC (January 30, 2009). The commissioner has discretion to determine what constitutes “reasonable” medical treatment given the particular circumstances of each case. Id. A treatment can be unreasonable either because it is not medically necessary or because it is not related to the compensable injury. Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January 20, 2011).
3. Here, the condition for which Claimant sought surgery in 2011 involved significant narrowing of her C5 foramen and persistent right shoulder pain. Both of these conditions were well within the terms of the approved Form 22 agreement pursuant to which Defendant paid permanency benefits in 2009. Claimant did not suffer any other injuries subsequently, such as a motor vehicle accident or new slip and fall incident, that might account for her ongoing and/or worsening symptoms. Considering all of the credible evidence, I conclude that the neck and right shoulder pain for which she sought additional treatment in 2011 was causally related to her accepted work injuries.
4. Having concluded that Claimant’s need for ongoing treatment is causally related to her compensable work injuries, I next consider whether the treatment at issue was medically necessary. This determination is based on evidence establishing the likelihood that it would improve the patient’s condition, either by relieving symptoms and/or by maintaining or increasing functional abilities. Cahill v. Benchmark Assisted Living, Opinion No. 13-12WC (April 27, 2012); Quinn v. Emery Worldwide, Opinion No. 29-00WC (September 11, 2000).
5. Conflicting medical testimony was offered as to the reasonableness of Claimant’s fourth cervical surgery. 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).
6. Here, based primarily on the second and third factors, I conclude that Dr. Wieneke’s opinion was more persuasive than Dr. Magnadottir’s. Dr. Wieneke had the advantage of reviewing Claimant’s entire medical history. More important, his opinions were clear, thorough and corroborated by objective evidence. Given that (1) the C5 nerve root distribution does not manifest itself in the hand; (2) no objective tests were performed to identify the C5 level as the pain generator for Claimant’s complaints; and (3) surgery clearly would not relieve the myofascial pain in Claimant’s shoulder, Dr. Wieneke credibly concluded that surgery was not a reasonable treatment option for the symptoms of which she complained. The fact that Claimant already had undergone three failed surgeries with no significant pain relief was a strong contraindication as well.
7
7. In contrast, given both Claimant’s medical history and the nature of her ongoing complaints, Dr. Magnadottir failed to explain adequately why a fourth surgery was justified.
8. I conclude that Claimant has failed to sustain her burden of proving that her May 2011 cervical surgery constituted reasonable medical treatment, such that Defendant should be obligated to pay for it. Therefore, her claim for workers’ compensation benefits must fail.
9. As Claimant has failed to prevail on her claim for benefits, she is not entitled to an award of costs or attorney fees.
ORDER:
Based on the foregoing Findings of Fact and Conclusions of Law, Claimant’s claim for workers’ compensation benefits referable to her May 2011 cervical surgery is hereby DENIED.
DATED at Montpelier, Vermont this 28th day of February 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.

Dora Brodeur v. Energizer Battery Manufacturing Inc. (April 2, 2014)

Dora Brodeur v. Energizer Battery Manufacturing Inc. (April 2, 2014)
STATE OF VERMONT
DEPARTMENT OF LABOR
Dora Brodeur Opinion No. 06-14WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Energizer Battery
Manufacturing, Inc. For: Anne M. Noonan
Commissioner
State File No. AA-62208
OPINION AND ORDER
Hearing held in Montpelier, Vermont on November 22, 2013
Record closed on January 22, 2014
APPEARANCES:
Heidi Groff, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUES PRESENTED:
Is SI joint fusion surgery, as recommended by Dr. Barnum, reasonable treatment causally
related to Claimant’s April 30, 2009 compensable work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Medical records
Claimant’s Exhibit 1: Curriculum vitae, Michael Barnum, M.D.
Claimant’s Exhibit 2: Bibliography; White Paper (Oct. 2010); Rudolf, L., Sacroiliac Joint
Arthrodesis – MIS Technique with Titanium Implants: Report of
the First 50 Patients and Outcomes, The Open Orthopaedics
Journal 2012; 6: 492-499.
CLAIM:
Medical benefits pursuant to 21 V.S.A. §640
Temporary total disability benefits retroactive to September 4, 2013 and ongoing, pursuant to 21
V.S.A. §642
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
2
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.
Claimant’s 2009 Work Injury and Subsequent Treatment
3. On April 30, 2009 Claimant was moving metal trays of batteries from a conveyor belt
onto interlocking shelves. Each tray weighed approximately 30 pounds. Claimant would
lift a tray and then turn her body so that she could maneuver it through a narrow opening.
At one point, as she was manipulating a tray she felt a pop, and then severe pain in her
neck, shoulder and lower back. Claimant reported the injury to her supervisor later that
day. The next day Defendant’s nurse directed her to seek medical treatment.
4. Defendant accepted Claimant’s injury, diagnosed as a lumbar, neck and shoulder strain,
as compensable, and began paying workers’ compensation benefits accordingly.
5. Initially Claimant treated conservatively for her injuries. Over time, her neck and
shoulder complaints resolved, but her low back pain continued. An MRI in May 2009
revealed lumbar spine defects at both L4-5 and L5-S1. Claimant reported pain at these
levels during an August 2009 evaluation with Dr. Landfish, an osteopath, and also
exhibited point tenderness along the mid-right sacroiliac (SI) joint. This latter finding
caused Dr. Landfish to suspect the SI joint as the pain generator, but a diagnostic
injection failed to produce any relief of symptoms. Physical therapy was also
unsuccessful.
6. In September 2009 Claimant underwent an evaluation with Dr. Barnum, a board certified
orthopedic surgeon. Dr. Barnum advised against treatment directed at the SI joint, and
instead recommended facet joint injections at both L4-5 and L5-S1 on the right. When
neither these nor various other injections proved effective, Claimant was advised to
consider surgical fusion.
7. In June 2010 Claimant underwent a two-level surgical fusion (L4-5 and L5-S1) with Dr.
Ames, an orthopedic surgeon. Initially she recovered well. As she was anxious to return
to work, Dr. Ames released her to do so only three months later, in early September 2010.
8. Unfortunately, by December 2010 Claimant’s pain had returned. A June 2011 CT scan
revealed a failed fusion – the bone grafts had not been incorporated and the surgical
hardware had loosened. Revision surgery therefore became necessary.
3
9. Claimant underwent a second fusion surgery, again with Dr. Ames, in July 2011. As
with her first fusion, initially she felt better. Though she complained of some left-sided
low back pain in the area of her bone graft site, and also intermittent “pinching” over one
or both of her SI joints, her pre-operative pain had largely resolved. She participated
fully in a course of physical therapy from August through December 2011, then cancelled
her remaining appointments, as she had been cleared to return to work and was “feeling
good.”
10. By March 2012 Claimant’s pain had worsened again. She continued to experience
“pinching” discomfort and pain across both sides of her lower back. A May 2012 CT
scan showed that the fusion was healing, and subsequent x-rays confirmed that there was
neither residual motion nor loosened hardware to account for her symptoms. Dr. Ames
theorized that Claimant’s pain was emanating from the site of her bone graft. Postoperative
graft site pain can be significant and can last for years, with no “magic fix”
readily available.
11. Presumably because Claimant’s fusion appeared to be healing well, Dr. Ames did not
believe that further surgery would be effective at alleviating her pain. Instead, she
recommended chiropractic evaluation and/or physical therapy for SI joint mobilization
and gluteal strengthening.
12. Claimant underwent chiropractic treatment with Dr. Keefe from June through October
2012. Although her pain levels fluctuated to some extent, for the most part Dr. Keefe’s
treatment, which focused primarily on chiropractic manipulation rather than core
strengthening, did not result in any sustained improvement. Claimant continued to
complain of pain and stiffness in her lumbar, sacral and hip regions.
13. Although Defendant was able for some time to accommodate Claimant’s modified duty
work restrictions, by February 2013 it was no longer able to do so. Claimant has not
worked since.
Dr. Barnum’s Proposed SI Joint Fusion Surgery
14. In November 2012 Claimant returned to Dr. Barnum for evaluation. As noted above,
Finding of Fact No. 6 supra, Dr. Barnum previously had evaluated her in 2009, well prior
to her first fusion surgery. At that time, he had advised against focusing treatment efforts
on her SI joint, as he believed the lumbar facet joints were a more likely pain generator.
15. This time, Dr. Barnum concluded that Claimant’s pain was in fact attributable to her SI
joint. Initially, this was a diagnosis of exclusion – imaging scans showed that her fusion
was solid, and also that there was no adjacent segment disease at L3-4, the disc level
immediately above her fusion. Dr. Barnum thus eliminated Claimant’s lumbar spine as
the likely pain generator. I find this analysis credible.
4
16. There is no definitive test for SI joint dysfunction. However, once the lumbar spine has
been ruled out as a likely pain source, there are physical findings that, if manifested, can
form the basis for diagnosing the condition. In Claimant’s case, Dr. Barnum made four
such findings. Two findings consisted of pain elicited when the joint was maneuvered
provocatively (the FABER and single leg stance tests) during clinical examinations in
November 2012 and/or April 2013. A third positive finding consisted of tenderness to
palpation over Claimant’s left SI joint. These tests are all somewhat indicative of SI joint
dysfunction, though none of them are conclusive.
17. Dr. Barnum’s fourth positive finding, and the one he deemed most significant, was
Claimant’s positive response to an injection directly into her left SI joint. For a brief
period – one or two hours – immediately following the injection, she reported a 95
percent reduction in pain. According to Dr. Barnum, this type of response is the “gold
standard” for diagnosing SI joint dysfunction. In discussing the finding during his formal
hearing testimony, he was extremely confident both that he had administered the
injection properly into the joint and that the results established SI joint dysfunction as the
pain generator. I find this testimony credible in all respects.
18. Having identified the source of Claimant’s pain, as treatment Dr. Barnum recommended
SI joint fusion surgery. In the past, such surgery required large incisions, significant
bone harvesting, lengthy hospital stays and several months of non-weight-bearing
recovery. More recently, a new surgical technique has been developed, using a different
type of implant to fixate and then stabilize the joint. The procedure is minimally
invasive, requiring only a small incision on the upper part of the buttock and a one-night
hospital stay. After three weeks of partial weight bearing with crutches, the patient is
released to full activity.
19. Dr. Barnum was one of the first surgeons in the country to become proficient in
minimally invasive SI joint fusion surgery. He has performed approximately 120 such
surgeries since 2009. Currently he is enrolled in a prospective study of one type of
implant used, called the SI Lock device, which he helped design. The study is being
funded by Globus Medical, the manufacturer. Of 13 patients enrolled so far, the
outcomes have been excellent, with markedly decreased pain, increased function and
successful return to work. In a published retrospective study of another manufacturer’s
device, Dr. Rudolf, the surgeon who trained Dr. Barnum in the technique, reported
similarly positive outcomes some two years post-surgery.1
20. Dr. Barnum receives royalty payments from the sale of the SI Lock device for use in
other patients. He is prohibited by law from receiving a royalty on any instrumentation
he uses on his own patients. He also receives honoraria for conducting training seminars
for other surgeons on the minimally invasive SI joint fusion technique, either from
Globus Medical and/or from the manufacturer of the device involved in Dr. Rudolf’s
study.
1 Rudolf, L., Sacroiliac Joint Arthrodesis – MIS Technique with Titanium Implants: Report of the First 50 Patients
and Outcomes, The Open Orthopaedics Journal 2012; 6: 492-499. As disclosed in the article, Dr. Rudolf holds
stock in, and is a consultant for, SI-Bone, Inc., the manufacturer of the implant used in the study.
5
21. As Dr. Barnum described in his testimony, SI joint dysfunction has been the “thorn in the
side” of spine surgeons for many years. As was the case with Claimant, and as he
himself has observed in his practice, patients who undergo lumbar fusions seem to get
better for a time, but then return with nagging pain in their buttocks and down their legs.
A soon-to-be-published research article documents a dramatic increase in the
biomechanical stress to the SI joint following L4-5 and/or L5-S1 fusion surgery. With
the minimally invasive SI fusion technique, a more viable surgical treatment option now
exists for adjacent segment disease at this level.
22. Dr. Barnum expressed greater than 90 percent confidence that Claimant will do well with
minimally invasive SI joint fusion. Without surgery, he does not expect long-lasting
improvement, even with physical therapy. Dr. Barnum’s surgical recommendation thus
deviates from a 2010 “White Paper” algorithm for diagnosing and treating SI joint
dysfunction, which counsels that a patient should undergo six to twelve weeks of active
physical therapy, including stretching, strengthening, stabilization and balance, prior to
considering surgical options. However, as stated in the paper itself, the algorithm “is
meant to be a general guide for the clinician . . . and not an all-inclusive review of the
science and literature that makes up each step.” Given Dr. Barnum’s extensive training
and relevant experience, I find his decision not to adhere exactly to the algorithm’s
protocol in Claimant’s case entirely credible and appropriate.
23. Dr. Barnum acknowledged that he did not review all of Claimant’s medical records prior
to concluding that she was an appropriate candidate for SI joint fusion surgery. Again,
given his training and experience in treating SI joint dysfunction patients, and particularly
his determination that additional physical therapy likely would not afford her sustainable
relief, I do not consider his opinion any less credible as a result.
Dr. Binter’s Expert Medical Opinion
24. Defendant’s expert medical witness, Dr. Binter, strongly disagreed with Dr. Barnum’s
treatment approach. At Defendant’s request, in May 2013 Dr. Binter reviewed
Claimant’s medical records and issued an opinion regarding the reasonableness of Dr.
Barnum’s proposed SI joint fusion surgery. Later, in July 2013 Dr. Binter conducted an
independent medical examination of Claimant.
25. Dr. Binter is a board certified neurosurgeon with more than twenty years’ experience.
Over the course of her career, she performed roughly 4,000 elective spine surgeries, twothirds
of which were directed at the lumbar spine. She is well acquainted with SI joint
issues in that context.
26. Dr. Binter has never recommended SI joint fusion to a patient, nor has she ever
performed or observed the minimally invasive procedure that Dr. Barnum has
recommended. In her clinical experience, SI joint problems can be managed very well
conservatively, so long as the patient commits to strength training and core stabilization
exercises.
6
27. In Dr. Binter’s opinion, to a reasonable degree of medical certainty Claimant does not
suffer from SI joint dysfunction. Of particular significance to her was the fact that
Claimant had failed to localize her pain directly over the SI joint, either during her
independent medical examination or later, when describing it in her deposition testimony.
According to her research, this test for SI joint dysfunction, referred to in the medical
literature as the “Fortin test,” is a more reliable finding than merely eliciting pain upon
palpation, as Dr. Barnum had reported.
28. Dr. Binter characterized Dr. Barnum’s surgical recommendation as having been based
solely on Claimant’s response to a single SI joint injection, an analysis with which she
strenuously disagreed. In her opinion, a patient should demonstrate at least three positive
signs of SI joint dysfunction in order to increase the probability of an accurate diagnosis.
When questioned on cross examination, she acknowledged that in fact Dr. Barnum had
made more than three such findings, though he may not have clearly reported all of them
at the time.
29. In Dr. Binter’s opinion, Claimant’s ongoing pain is most likely attributable to a
combination of general deconditioning and “pretty typical” post-fusion and post-graft site
pain. Consistent with the treatment approach to which she adhered over the years with
her own patients, she recommended that Claimant return to physical therapy for a
strength training refresher course, then restart her home exercise program with a pool and
gym membership and an emphasis on core strengthening.
30. Having rejected SI joint surgery as a reasonable treatment option, in Dr. Binter’s opinion
Claimant had reached an end medical result, with a 23 percent whole person permanent
impairment attributable to her work injury. With this opinion as support, the Department
approved Defendant’s discontinuance of temporary total disability benefits effective
September 4, 2013.
31. In accordance with Dr. Binter’s treatment recommendation, between late September and
mid-November 2013 Claimant engaged in another course of physical therapy. In all, she
underwent 19 sessions, seven of which were aqua- rather than land-based. She also used
a pool membership to perform aqua-based exercises on her own on a twice-weekly basis.
Unfortunately, her pain never significantly improved and instead worsened, to the point
where the therapist recommended discontinuing land therapy altogether and focusing
solely on pool work.
32. It is unclear to what extent Claimant’s most recent course of physical therapy consisted of
core strengthening, as Dr. Binter had suggested. And despite the fact that the program
has worsened rather than alleviated her pain, in her formal hearing testimony Dr. Binter
held firm to her assertion that Claimant’s pain is best managed conservatively rather than
surgically. In her opinion, committing to a good exercise program is a lifestyle, one that
Claimant should maintain even though she likely will continue to suffer from low back
pain nevertheless. While this may be true, I find that Claimant’s inability to participate
fully in structured physical therapy is an indication that Dr. Binter’s approach probably
will not succeed at effectively managing her pain.
7
Claimant’s Current Status
33. In her formal hearing testimony, Claimant credibly described her current condition. She
has exhibited a pattern of worsening pain and decreased function essentially since the
spring of 2012. Her sleep is disrupted by pain. She has at times sought emergency room
treatment for her symptoms. She continues to adhere to a home exercise program
involving daily stretching, but described herself as “not doing well lately.” She is
“deathly afraid” of a third surgery, but is willing to undergo it because “I just want my
life back.”
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. Vermont’s workers’ compensation statute obligates an employer to pay only for those
medical treatments that are determined to be both “reasonable” and causally related to the
compensable injury. 21 V.S.A. §640(a); MacAskill v. Kelly Services, Opinion No. 04-
09WC (January 30, 2009). The commissioner has discretion to determine what
constitutes “reasonable” medical treatment given the particular circumstances of each
case. Id. A treatment can be unreasonable either because it is not medically necessary or
because it is not related to the compensable injury. Baraw v. F.R. Lafayette, Inc.,
Opinion No. 01-10WC (January 20, 2010).
3. The disputed issue in this case is whether Dr. Barnum’s proposed SI joint fusion surgery
constitutes reasonable medical treatment for Claimant’s April 2009 work injury. The
parties offered conflicting expert testimony on the question. In such cases, 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).
8
4. With particular focus on Dr. Barnum’s qualifications, I conclude that his opinion is the
most persuasive. Dr. Barnum has extensive training, expertise and experience in
diagnosing and surgically treating patients who suffer from SI joint dysfunction. His
diagnosis in Claimant’s case was appropriately based on both his clinical findings and on
Claimant’s response to a “gold standard” diagnostic injection. As for treatment, the
extent to which the minimally invasive technique he proposes to employ differs from the
way SI joint fusion surgery was accomplished in the past is striking. The results he has
reported within his own patient population are credible and compelling, and the fact that
his current research is funded by the manufacturer of an implant that he helped design
does not diminish his proven success rate. I conclude that the confidence he has
expressed both in his diagnosis and in his ability to provide effective surgical relief is
well-placed.
5. Though an experienced surgeon in her own right, Dr. Binter lacks the specific training
and expertise that Dr. Barnum displayed with respect to diagnosing and surgically
treating SI joint dysfunction. Her conclusion that Claimant did not suffer from the
condition was based at least in part on her assertion that Dr. Barnum had not made
sufficient clinical findings to support the diagnosis, a claim that I have found to be
unsupported by the record. As for her recommendation that Claimant continue to manage
her symptoms conservatively by re-engaging in physical therapy, this already has proven
ineffective. For these reasons, I conclude that her opinions as to both diagnosis and
treatment are unpersuasive.
6. The determination whether a treatment is reasonable must be based primarily on evidence
establishing the likelihood that it will improve the patient’s condition, either by relieving
symptoms and/or by maintaining or increasing functional abilities. Quinn v. Emery
Worldwide, Opinion No. 29-00WC (September 11, 2000). An injured worker’s
subjective preferences cannot render a medically unreasonable treatment reasonable. See,
Britton v. Laidlaw Transit, Opinion No. 47-03WC (December 3, 2003). As is the case
with many aspects of medical decision-making, however, there can be more than one
right answer, and thus more than one reasonable treatment option for any given
condition. Cahill v. Benchmark Assisted Living, Opinion No. 13-12WC (April 27, 2013);
Lackey v. Brattleboro Retreat, Opinion No. 15-10WC (April 21, 2010). And although
the workers’ compensation statute mandates that employers pay only for “reasonable”
medical treatment, it does not in any way require that injured workers thereby forfeit the
right to direct their own medical care. Id.; see also, Luce v. Town of Stowe, Opinion No.
27-13WC (December 11, 2013).
7. The experts here have offered two vastly different treatment approaches. Dr. Barnum’s
surgical option carries greater risk, but potentially far more significant benefit. Dr.
Binter’s conservative management recommendation offers less risk, but most likely less
reward as well. There is sufficient evidence from which to conclude that either approach
would be a reasonable treatment option. That being the case, the choice is Claimant’s to
make, not mine.
9
8. I conclude that Claimant has sustained her burden of proving that minimally invasive SI
joint fusion surgery constitutes reasonable medical treatment for her compensable workrelated
injury. Under 21 V.S.A. §640, Defendant is therefore obligated to pay for it.
9. Having concluded that Dr. Barnum’s proposed surgery is reasonable, it follows that Dr.
Binter’s end medical result determination was premature. I therefore conclude that
Claimant is entitled to temporary total disability benefits retroactive to the date of
discontinuance, September 4, 2013, and ongoing until properly discontinued in
accordance with 21 V.S.A. §643a and Workers’ Compensation Rule 18.0000.
10. As Claimant has prevailed on her claim for benefits, she is entitled to an award of costs
and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days
from the date of this opinion within which to submit her itemized claim.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED
to pay:
1. Temporary total disability benefits retroactive to September 4, 2013 and ongoing,
in accordance with 21 V.S.A. §642, with interest on any unpaid amounts
calculated in accordance with 21 V.S.A. §664;
2. Medical benefits covering all reasonable medical services and supplies associated
with minimally invasive SI joint fusion surgery as proposed by Dr. Barnum, in
accordance with 21 V.S.A. §640; and
3. Costs and attorney fees in amounts to be determined, in accordance with 21
V.S.A. §678.
DATED at Montpelier, Vermont this 2nd day of April 2014.
_____________________
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.