R. G. v. Verizon (June 5, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
R. G. Opinion No. 22-08WC
By: Jane Gomez-Dimotsis
v. Hearing Officer
For: Patricia Moulton Powden
State File No. R-22786
OPINION AND ORDER
Erin Gallivan, Esq. for Claimant
Keith Kasper, Esq. for Verizon (at hearing)
J. Christopher Callahan for Verizon/post-hearing
1. Whether the Claimant is permanently totally disabled under the Odd Lot Doctrine.
2. Claimant is requesting Attorney’s fees and costs.
Joint Medical Exhibit
Vocational Rehabilitation Reports
LeRoy Report and CV
Dr. Stephen Mann CV
Dr. Bucksbaum CV
Louise Lynch CV
Scott Miller Deposition Transcript
1. In May 2001, Claimant was an employee of Defendant within the meaning of the Vermont Worker’s Compensation Act.
2. In May 2001 Claimant suffered a personal injury by accident arising out of his employment with Defendant, where he fell off the back of his Verizon truck, injuring his left shoulder and neck.
3. In October, 2001, Claimant had surgery on his neck. Dr. Joseph Corbett performed an anterior cervical discectomy and interbody fusion at C5-6.
4. This surgery was unsuccessful.
5. In March of 2002, Dr. Corbett performed a second surgery to implant a BAK/C cage at C5-6.
6. The second surgery was also unsuccessful because the BAK/C cage was not placed correctly.
7. In September 2002, Claimant sought a second opinion from Dr. Robert J. Blanco at New England Baptist Hospital in Boston, Massachusetts.
8. Claimant had a third surgery on November 21, 2002, wherein Dr. Blanco removed the misplaced BAK/C cage and performed a corpectomy, placing a Pyramesh cage at C5-6 and C6-7 with autograft and Atlantis plate.
9. Claimant suffered ongoing pain, limitations of motion and complications as a result of the work injury and three surgeries.
10. Claimant has not been able to work at Verizon since September 2001 due to the work injury and complications.
11. Claimant began working at Verizon in 1999.
12. At Verizon, Claimant worked as a Splice Technician and in Special Services, two jobs which involved fixing phone and phone line problems out in the field. Both jobs are classified as heavy duty jobs.
13. Claimant’s average weekly wage at the time of the injury was $576.04 per week.
14. Claimant graduated from high school in 1988.
15. Claimant was honorably discharged from the Marines in 1992.
16. Claimant attended four years of college but has no degree.
17. Claimant’s prior work history is medium to heavy duty work.
18. Claimant is precluded from performing medium to heavy duty work.
FINDINGS OF FACT:
1. The Claimant is 36 years old and recently married. Due to his accepted work injury and his surgeries he credibly testified he experiences the following symptoms; dysphonia (hoarseness), dysphagia (difficulty swallowing), sensations of choking, difficulty breathing, difficulty eating, dizziness, myofascial pain, cervical pain, cervical stiffness and lack of movement, chronic muscle pain in his upper back and neck, depression, migraine headaches, occasional pain in both arms and hands, burning numbness in three fingers of his left hand, soreness and burning pain in his left arm, extreme difficulty sleeping, and difficulty lifting his arms above his chest.
2. The Claimant credibly testified about how the high levels of pain and symptoms he experiences each day frustrate his efforts to accomplish tasks.
3. The Claimant has undergone numerous treatment modalities which have had little success including: multiple surgeries; massage therapy; nerve ablation; Dr. Stephen Mann’s ODMC program; numerous drug treatments; counseling for depression and various medications for depression. In September of 2007, the Claimant underwent ulnar decompression surgery to alleviate burning and numbness in some fingers on his left hand and upper left side.
4. This claim is for permanent total benefits. There are only a few issues disputed by the Defendant in this claim regarding the critical issues. The first concerns whether the Claimant can work on a part-time basis intermittently and whether this would meet the criteria for gainful employment. The second issue is whether vocational rehabilitation efforts have been exhausted and third, whether the Claimant is at medical end result for his latest surgery and his depression. All of these issues relate to whether or not the Claimant can be found to be permanently totally disabled.
5. Regarding the first issue of whether the Claimant can work on a part-time basis, Dr. Stephen Mann, a psychologist, performed an Independent Evaluation on the Claimant as well as treating him for approximately two years. His testimony was that the defendant may be able to do some work on a part-time basis if the employer is remarkably accommodating, the work is intermittent and the employer is benevolent and understanding.
6. Dr. Mark Bucksbaum, a certified independent medical examiner who has testified many times at workers’ compensation hearings conducted two Independent Medical Evaluations on the Claimant as well as treating him for several years. He testified that the Claimant can only work in a highly structured environment where they don’t care about the quality or reliability of the work. His other suggestion was for the Claimant to volunteer somewhere but only when he felt able to do so. Dr. Bucksbaum’s opinion was based both on the fact that it is medically unsafe for the Claimant to engage in either sedentary or light work and that the Claimant is only able to work intermittently because of his pain. It is unsafe for the Claimant to work because the ulnar decompression surgery on his upper extremity left the nerve unprotected from further injury. Dr. Bucksbaum is found to have credibly determined that the Claimant was at medical end result for his injuries on June 15, 2005.
7. The Claimant testified regarding the incredible amount of pain he endures on a daily basis. He does try to do basic work around the home. However, this involves frequently stopping to rest or to lie down. The Claimant wants to work and his wife confirmed that fact in her credible testimony.
8. Ms. Louise Lynch, a physical therapist and functional capacity evaluator, conducted a three day Functional Capacity Evaluation (FCE) on the Claimant. She found he could work an eight hour day but that there might be entire months when he could not work at all. Louise Lynch concluded the Claimant could not work on consecutive days even on a part-time work schedule and that there would always be days when his symptoms would prevent him from having any work capacity. She did find, however, that the Claimant had a light work capacity with many restrictions when he was able to work.
9. The Claimant also attended a half day FCE with Ginny Woods, a physical therapist with Mount Ascutney’s Ergo Science Division on May 1, 2007. The results were different than those of Louise Lynch’s conclusions. Ms. Woods concluded that the Claimant had the capacity to perform light work for an eight hour day, forty hours per week. The major difference in these opinions is the length of time the functional capacity test lasted. Ginny Woods’ evaluation was only for a half day. Louise Lynch tested the Claimant over a three day period and observed the Claimant’s abilities decline each day. The testing was also much more comprehensive. There is no dispute that the Claimant is able to sustain some level of activity for a short number of hours. However, medical experts have opined that the Claimant could not sustain a work level for consecutive days even on a part-time basis.
10. Claimant worked with vocational rehabilitation counselor William O’Neil from early in 2004 through late 2005. An Individual Written Rehabilitation Plan was developed in September of 2004. The goal was to train the Claimant to be a property or estate manager. The Claimant complied with the requirements of the plan and took courses in both Master Composting and Master Gardening. However, he was unable to obtain or sustain suitable employment, despite the efforts of Mr. O’Neil and the benevolent employer for whom he worked. Even though the employer allowed the Claimant to work on his own schedule and do only what he was capable of doing, the employer concluded that the Claimant was too unreliable and inconsistent due to his work related injuries which resulted in severe limitations regarding his ability to function. Mr. O’Neil suspended vocational rehabilitation efforts because it was apparent that the Claimant was not going to find suitable work.
11. Claimant testified credibly about his inability to sustain any work, even sedentary work, due to his pain. Greg LeRoy, a vocational expert, testified that the Claimant would be unable to be sufficiently productive even in a home based environment. He found he was not capable of gainful employment.
12. The second issue concerns whether the Claimant is at medical end for his surgeries and depression. Defendant argues that Claimant is not at medical end result both for his latest surgery and depression. Claimant is still healing from his last surgery for the ulnar nerve decompression surgery. However, Dr. Bucksbaum credibly testified that the outcome of the ulnar decompression surgery will not change the Claimant’s medical restrictions for his ability to function because the surgery moved the nerve from its naturally protected area and left it unprotected from further injury. It is not disputed that Claimant is at medical end result for his neck injury which is the source of most of his pain.
13. Claimant was found to be depressed by Dr. Stephen Mann and others. He is depressed and has considered suicide in the past. He is not currently treated for his depression. However, Dr. Mann treated the Claimant for over two years for depression and the Claimant has tried various anti-depressant medications without result. Both Dr. Mann and Dr. Bucksbaum have found that Claimant’s depression is caused by his pain and that he will continue to have pain. Both doctors do advocate for continued treatment of Claimant’s depression to prevent any future suicidal ideation. However, both Dr. Bucksbaum and Dr. Mann testified that although further medical treatment might improve the Claimant’s depression, no significant improvement is expected.
14. Prior to Meub Associates, Inc. being involved in this case as the Claimant’s attorneys, the law firm of Ryan, Smith and Carbine was handling the case. There is an agreement between these firms to split any attorney fees and costs if the Claimant prevails. The insurance adjuster should be aware of this agreement and not distribute fees without a full understanding of this agreement.
15. The Claimant’s reasonable attorneys’ fees were $90.00 per hour for a total of 427.15 attorney hours. The Claimant also expended 165.9 paralegal hours at $60.00 per hour. Costs were amended to $28,646.41 in response to objections from the Insurer’s Counsel. The fees are to be divided between the firms of Meub Associates, Inc. and Ryan Smith and Carbine pro rata according to time spent by each firm. (Meub Associates, Inc. spent 370.55 hours of attorney time and all paralegal hours and Ryan, Smith and Carbine spent 56.6 hours of attorney time on the instant case.)
CONCLUSIONS OF LAW:
1. The Department finds the Claimant cannot presently work at gainful employment due to his work related injury based on the credible testimony of the Claimant and his witnesses. The Defendant did not present any defense witnesses but did lengthy cross-examinations on Claimant’s witnesses including the Claimant, himself. 21 V.S.A. § 644(b). WC Rule 11.3100 (Odd Lot Doctrine.) The Odd Lot Doctrine recognizes that if Claimant’s physical condition rises to the level where he or she cannot work at “gainful” employment but does not fit in one of the enumerated categories in the statute, then he or she may still be eligible for permanent total disability. Regular gainful employment shall refer to regular employment in any well-known branch of the labor market. This rule requires, inter alia, consideration of the Claimant’s age, experience, training, education, occupation, and mental capacity, physical and mental limitations and/or pain.
2. The Odd Lot Doctrine applies if a worker cannot return to gainful employment without suffering substantial pain rendering him unable to perform any service for which a reasonably dependable market exists. To qualify as substantial, the pain accompanying routine tasks must be serious, intense and severe. Hill v. L.J. Ernest, Inc., 568 So. 2nd 146, 152 (1990). The Department finds in the instant case, based on credible testimony presented, the Claimant’s pain is so severe he cannot perform any gainful employment even on a part-time basis and his treating physician has credibly opined that such work may be injurious to his future health.
3. The Department finds credible experts agree the Claimant is unable to do work that is not casual, sporadic or charitable which means that he cannot engage in gainful and regular employment. Rider v. Orange East Supervisory Union, Op. No. 14-03WC (2003); Larson’s, Desk Edition § 83.01 (2007). Regular, gainful employment shall not apply to work that is so limited in quality, dependability or quantity that a reasonably stable market for such work does not exist. See WC Rule 11.3100. Thus, the Department finds that the Claimant is unable to perform regular, gainful employment due to his pain and the fact that such work would be harmful to his condition since his ulnar decompression surgery left his nerve more exposed.
4. The Department finds the medical treating doctors to be more credible and knowledgeable about Claimant’s condition than those persons who conducted the functional capacity examinations.
5. The Department also finds credible the experts who agree that vocational rehabilitation was unsuccessful and will not be successful until or unless something new is found to relieve the Claimant of his pain.
6. The Department finds the Claimant is, under the definitions under the Workers’ Compensation statutes and rules, at medical end result for his psychological depression and his medical status based on expert testimony. Based on credible expert testimony, the Department finds any improvement to Claimant’s upper extremity through the healing process will not alter the fact that Claimant is permanently and totally disabled. This is based on the credible testimony of Claimant’s expert, Dr. Bucksbaum. The Claimant’s depression is related to his pain and has not improved after treatment. See Worker’s Compensation Rule 2.1200 (Claimant is at medical end result (MER) if significant improvement is not expected regardless of treatment.) The experts’ credible testimony is that even though the Claimant could benefit from treating his depression, the pain he feels will prevent significant improvement.
7. Claimant has met his burden of establishing that he is permanently and totally disabled under Vermont case law. Egbert v. Book Press, 144 Vt. 367 (1984). Based on the credible testimony of Dr. Bucksbaum the Department finds that the Claimant was at medical end result as of June 15, 2005.
The claim should be adjusted as follows;
1. Claimant should receive permanent total disability benefits backdated to June 15, 2005 including statutory interest. The first 330 weeks plus interest will be awarded in a lump sum.
2. The Claimant’s reasonable attorneys’ fees should be paid and were $90.00 per hour for a total of 427.15 attorney hours. The Claimant also expended 165.9 paralegal hours at $60.00 per hour. Costs were amended to $28,646.41. The fees are to be divided between the firms of Meub Associates, Inc. and Ryan Smith and Carbine pro rata according to time spent by each firm. (Meub Associates, Inc. spent 370.55 hours of attorney time and had all paralegal fees and Ryan, Smith and Carbine spent 56.6 hours of attorney time on the instant case.)
DATED at Montpelier, Vermont this 5th day of June 2008.
Patricia Moulton Powden
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.
Tag Archive for: shoulder injury
R. G. v. Verizon (June 5, 2008)
J. C. v. Experian Information Solutions (June 5, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
J. C. Opinion No. 23-08WC
v. By: Phyllis Severance Phillips, Esq.
Solutions For: Patricia Moulton Powden,
State File No. U-04233
OPINION AND ORDER
Michael Green, Esq., for Claimant
John Valente, Esq., for Defendant
Whether any or all of the injuries Claimant suffered as a result of her idiopathic fall at work on September 15, 2003 is compensable.
Joint Medical Exhibit
Claimant’s Exhibit 1: Police report
Claimant’s Exhibit 2: Ambulance report
Claimant’s Exhibit 3: Emergency Department report
Claimant’s Exhibit 4: Andrew Hock recorded statement
Claimant’s Exhibit 5: Photographs
Claimant’s Exhibit 6: First Report of Injury
Claimant’s Exhibit 7: Curriculum Vitae of Mark Bucksbaum, M.D.
Claimant’s Exhibit 8: Medical textbook photographs of skull
Claimant’s Exhibit 9: Dr. Benda handwritten notes
Claimant’s Exhibit 10: Dr. Donaldson report, December 17, 2004
Claimant’s Exhibit 11: Dr. Donaldson report, May 16, 2005
Claimant’s Exhibit 12: University Disability Consortium transaction list
Defendant’s Exhibit A: Kevin Barkey recorded statement
Defendant’s Exhibit B: Biomechanical Analysis Report, December 14, 2007
Defendant’s Exhibit C: Curriculum Vitae of Brian Benda, Ph.D.
Workers’ compensation benefits causally related to all compensable injuries
Attorney’s fees and costs under 21 V.S.A. §678
FINDINGS OF FACT:
1. Claimant began working for Defendant’s predecessor, Metromail, in 1984. Defendant operates a bulk mail facility containing all of the machines necessary to print, cut, fold, insert and mail a high volume of so-called “junk” mail. Initially Claimant worked as a machine operator, and then later trained as a mechanic. Over the years, she was promoted through the ranks to Senior Mechanic. Her job involved setting up and maintaining various machines throughout the plant.
2. On September 15, 2003 Claimant began her shift at 3:00 PM. Shortly before 11:00 PM, Kevin Barkey, a co-worker, observed her walking down the center aisle towards his machine. Mr. Barkey testified that as Claimant approached him, she seemed to be shaking and moving somewhat oddly. There was music playing, and Mr. Barkey thought Claimant might be dancing. Mr. Barkey testified that when Claimant was about 10 feet away from him she suddenly fell. Mr. Barkey stated that Claimant made no attempt to break her fall or otherwise protect herself. In his words, “she went down like a ton of bricks.”
3. Immediately to Claimant’s right as she fell was an unwinder machine. The unwinder machine is comprised of a steel mechanism with a long metal spindle for holding large rolls of paper. Large bolts at either end of the spindle hold the rolls in place and allow for the spindle’s height to be adjusted up or down. The machine is supported by tube metal bars that form a rectangular base approximately 4 inches from the floor.
4. Mr. Barkey was the only one to witness Claimant’s fall. He clearly recalled seeing Claimant strike the back of her head on one of the bars at the base of the machine as she fell. Mr. Barkey surmised that Claimant hit the metal bolt at the end of the spindle as well, but admitted that he did not actually see her do so.
5. Mr. Barkey ran to Claimant’s side as soon as she fell. He observed that she was bleeding profusely from a large wound on the back of her head. Mr. Barkey testified that he cradled Claimant’s head and moved her away from the machine.
6. Mr. Barkey’s recollection as to what happened next is somewhat inconsistent. In his statement to an investigating police officer on the day after the accident occurred he reported that when he went to Claimant’s assistance her jaw was locked shut and she was biting her tongue. However, in the recorded statement taken by Defendant’s adjuster approximately 2 weeks later, Mr. Barkey recalled that immediately after Claimant fell she was “smacking [her head] on the floor,” and that he cradled her head with his hand because “she kept on banging her head” and he “didn’t want her to bang it [on] the concrete floor no more.” Mr. Barkey reiterated that testimony at the formal hearing, stating that when he arrived at her side Claimant was banging her head on the floor in the midst of what he perceived to be a convulsion or seizure.
7. Emergency medical technicians arrived on the scene at 11:03 PM. Their records indicate that Claimant was alert and oriented upon arrival but then began a grand mal seizure and was unresponsive thereafter. Claimant was transported to Rutland Regional Medical Center for evaluation and treatment.
8. Claimant was comatose for nearly two weeks after the September 15, 2003 fall. During her hospitalization she was diagnosed with the following injuries:
• Head injury with intracranial bleeding and stroke;
• Right subdural hematoma and intraparietal hemorrhage;
• Left occipital scalp laceration;
• Left basilar skull fracture;
• Left shoulder dislocation;
• Posterior lobe liver laceration; and
• Rib fractures.
In addition, subsequent to her hospitalization Claimant was diagnosed with a seizure disorder and traumatic brain injury.
9. The medical professionals who have treated and/or evaluated Claimant since the September 15, 2003 fall disagree as to the cause of these various injuries, particularly as to which ones resulted from impacting the unwinder machine and which ones resulted solely from impacting the floor.1 For her part, Claimant has no recollection whatsoever of either the moments immediately preceding her fall or of the fall itself. The only physical evidence of her fall is a large irregularly shaped scar on her left occipital scalp.
1 The distinction has important legal ramifications. As discussed infra and in the Commissioner’s Ruling on Claimant’s Motion for Partial Summary Judgment, Opinion No. 30-07WC (October 23, 2007), only those injuries that are determined to have been caused, in whole or in part, by impacting the unwinder machine are compensable; those that resulted solely from impacting the floor are not.
10. Dr. Deirdre Donaldson, a neurologist, conducted a medical records review at Defendant’s request in December 2004. Dr. Donaldson was unable to determine the precise mechanism of injury, but surmised from Claimant’s occipital scalp laceration and skull fracture that she fell backwards. Dr. Donaldson further theorized that Claimant probably hit her head more than once. After reviewing the police investigation report and particularly Mr. Barkey’s statement, Dr. Donaldson concluded that Claimant initially suffered a seizure and that the head injuries she sustained in the subsequent fall probably triggered further seizure activity, which in turn resulted in further head injuries.
11. In January 2005 Claimant began treating with Dr. Mark Bucksbaum, a board-certified physiatrist. In addition to his medical credentials, Dr. Bucksbaum also holds a degree in biomedical engineering. In this discipline he has become familiar with the methodology for analyzing the forces necessary to cause injuries to the body.
12. Having examined Claimant and reviewed all of her medical records as well as the police investigation report and witness statements, Dr. Bucksbaum reached the following conclusions as to the specific mechanism of Claimant’s various injuries:
• The left occipital scalp laceration was caused by Claimant’s head impacting the metal bolt at the end of the unwinder machine’s spindle;
• The left basilar skull fracture was caused by Claimant’s head impacting either the metal bolt or the metal bar that forms the unwinder machine’s base, but definitely not by impacting the floor;
• Similarly, the posterior lobe liver laceration was caused by impacting either the metal bolt or the metal bar at the base of the machine, but definitely not by impacting the floor;
• The traumatic brain injury and seizure disorder were caused by the left basilar skull fracture, which as noted above was caused by impacting the unwinder machine, not the floor;
• There is no way to know for sure whether the left shoulder dislocation and the rib fractures were caused by impacting some part of the unwinder machine or by impacting the floor, as either mechanism of injury is possible.
13. At Defendant’s request, in August 2005 Claimant underwent an independent medical evaluation with a panel of physicians at University Disability Consortium. The panel included a neuropsychologist, an orthopedist and a neurologist, Dr. Brian Mercer. Dr. Mercer was the primary author of the panel’s report and also testified at the formal hearing.
14. Dr. Mercer concluded that Claimant’s left basilar skull fracture, left shoulder dislocation, traumatic brain injury and seizure disorder all were caused by impacting the floor, not the unwinder machine. Significantly, however, with the exception of his opinion as to the left shoulder injury, Dr. Mercer based all of his conclusions on the mistaken assumption that Claimant’s scalp laceration was to the right side of her head, whereas in fact it was on the left side. In addition, in forming his opinions Dr. Mercer accepted as undisputed Mr. Barkey’s recollection that Claimant struck her head multiple times on the floor after she fell. As noted above, however, Mr. Barkey’s recollection in this regard has been somewhat inconsistent.
15. Dr. Brian Benda, a biomechanical engineer, also testified on Defendant’s behalf. Dr. Benda has training in structural mechanics and holds a doctorate in medical engineering as well. He specializes in studying the human body’s structural mechanics so as to determine the specific mechanism of accident-related injuries.
16. In conjunction with this claim Dr. Benda conducted a site inspection and viewed an unwinder machine. He also reviewed Claimant’s medical records, the police investigation report and Mr. Barkey’s various statements. Having done so, Dr. Benda reached the following conclusions as to the specific mechanism of Claimant’s various injuries:
• The occipital scalp laceration, which Dr. Benda mistakenly assumed was on the right side of Claimant’s head, was caused by her impacting either the unwinder machine’s metal bolt or the metal bar at its base;
• The left basilar skull fracture, traumatic brain injury and seizure disorder all were caused by impacting a flat surface, either the metal bar at the base of the unwinder machine or the floor, it is impossible to tell which;
• The left shoulder dislocation and rib fractures were caused by impacting the floor, not the unwinder machine; and
• It is impossible to account for the posterior lobe liver laceration with any degree of certainty.
CONCLUSIONS OF LAW:
1. To establish a compensable claim under Vermont’s workers’ compensation law, a claimant must show both that the accident giving rise to his or her injury occurred “in the course of the employment” and that it “arose out of the employment.” Miller v. IBM, 161 Vt. 213, 214 (1993); 21 V.S.A. §618.
2. An injury occurs in the course of employment “when it occurs within the period of time when the employee was on duty at a place where the employee was reasonably expected to be while fulfilling the duties of [the] employment contract.” Miller, supra at 215, quoting Marsigli Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 98 (1964).
3. An injury arises out of the employment “if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where [claimant] was injured.” Shaw v. Dutton Berry Farm, 160 Vt. 594, 599 (1993), quoting 1 Larson, Workers’ Compensation Law §6.50 (1990) (emphasis in original). This so-called “positional risk” analysis lays responsibility on an employer when an employee’s injury would not have occurred “but for” the employment and the worker’s position at work. Id.
4. Putting these two prongs of the compensability test together, the “in the course of” requirement establishes a time and place connection between the injury and the employment, while the “arising out of” requirement establishes a causal connection between the injury and the employment. See Spinks v. Ecowater Systems, WC 04-217 (Minn. Work.Comp.Ct.App., January 21, 2005). Both connections are necessary for a claim to be compensable.
5. There is no dispute in the current claim as to the “in the course of” requirement to establish compensability. Claimant’s injuries occurred while she was at Defendant’s work place, performing the job duties she was hired to do at the time she was supposed to be doing them.
6. The dispute here concerns the “arising out of” component, and it is driven by the fact that Claimant’s fall itself was not caused by her work, but rather by a medical event that was purely personal to her, a so-called idiopathic fall.2 Professor Larson has described the requirements for finding such injuries compensable as follows:
The basic rule, on which there is now general agreement, is that the effects of [an idiopathic] fall are compensable if the employment places the employee in a position increasing the dangerous effects of such a fall, such as on a height, near machinery or sharp corners, or in a moving vehicle.
1 Larson, Workers’ Compensation Law §9.01.
2 Although the medical cause of the event that led to Claimant’s idiopathic fall remains unclear, there is no doubt that the precipitating event that led to it was purely personal and not work-related at all.
7. As to the more controversial question raised by the current claim, whether the effects of an idiopathic fall to a level floor should be deemed to arise out of the employment, the Commissioner previously determined that they should not. Ruling on Claimant’s Motion for Partial Summary Judgment, Opinion No. 30-07WC (October 23, 2007). Vermont thus stands in line with the majority of jurisdictions that have considered this issue. Larson, supra at §9.01[a] and cases cited therein.
8. The question to be decided in this claim, therefore, is which of Claimant’s injuries were caused by impacting with the unwinder machine and which were caused solely by impacting the floor. The former are compensable, the latter are not.
9. The medical experts disagree on this question, and therefore it is necessary to determine which of their opinions is the most credible. When faced with conflicting expert medical opinions the Department traditionally uses a five-part test to determine which 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).
10. With specific emphasis on the third factor noted above – the clarity, thoroughness and objective support underlying the opinion – I find that Dr. Bucksbaum’s opinion is the most credible here. I am particularly swayed by the fact that Dr. Bucksbaum’s causation theory adequately accounted for the only piece of physical evidence – the scar on Claimant’s left occipital scalp. While the experts can only theorize as to exactly how Claimant fell and which body parts impacted first with the machine as opposed to the floor, the scar is undeniable, and must be the starting point for any credible causation analysis. Yet much of both Dr. Mercer’s and Dr. Benda’s analyses flowed from their mistaken assumption that Claimant’s scar was on her right occipital scalp. Their subsequent conclusions were tainted by the error and ultimately are unpersuasive.
11. In keeping with Dr. Bucksbaum’s opinion, therefore, I conclude that Claimant’s left occipital scalp laceration, left basilar skull fracture, posterior lobe liver laceration, traumatic brain injury and seizure disorder all were caused by her impacting the unwinder machine as she fell, and therefore are compensable.
12. As to the left shoulder dislocation and rib fractures, Claimant argues that they too must be deemed compensable. Claimant cites to the Commissioner’s Ruling on Claimant’s Motion for Partial Summary Judgment, supra, in support of her position that if any of Claimant’s injuries are determined to have been caused by impacting the unwinder machine as opposed to the floor, then all must be deemed compensable. This is untrue, and represents both a misreading of the Commissioner’s prior ruling and a misinterpretation of the statutory requirements for determining compensability.
13. Vermont’s workers’ compensation statute entitles an employee to recover workers’ compensation benefits when he or she “receives a personal injury by accident arising out of and in the course of employment.” 21 V.S.A. §618 (emphasis added). This compensability standard must be met as to every injury that an employee sustains in a work-related accident. There is no basis for piggybacking a non-work-related injury onto a work-related one solely because both occurred at the same time.
14. With that in mind, and again with reference to Dr. Bucksbaum’s opinion as to causation, I find that Claimant has failed to sustain her burden of proving that her left shoulder dislocation and rib fracture resulted from impacting the unwinder machine as opposed to the floor. Dr. Bucksbaum theorized that either mechanism of injury was plausible. More certainty is required in order to establish that these injuries arose out of Claimant’s employment. Burton v. Holden and Martin Lumber Co., 112 Vt. 17 (1941). I find, therefore, that they are not compensable.
15. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $3,681.69 and attorney’s fees totaling $8,698.50. An award of costs to a prevailing claimant is mandatory under the statute. As for attorney’s fees, these lie within the Commissioner’s discretion. Here, although Claimant was not able to establish the compensability of her left shoulder injury and rib fracture, she did prevail as to the compensability of her other injuries. It would be impossible to separate out the costs and fees associated with proving the causation of the compensable injuries from those associated with the non-compensable ones, particularly because the same expert witnesses testified as to both. Under these circumstances, I find it appropriate to award Claimant her full costs and attorney’s fees.
Based on the foregoing findings of fact and conclusions of law, Defendant is ORDERED to pay:
1. All workers’ compensation benefits associated with Claimant’s left occipital scalp laceration, left basilar skull fracture, posterior lobe liver laceration, traumatic brain injury and seizure disorder; and
2. Costs of $3,681.69 and attorney’s fees of $8,698.50.
Claimant’s claim for workers’ compensation benefits causally related to her left shoulder dislocation and rib fracture is hereby DENIED.
DATED at Montpelier, Vermont this 5th day of June 2008.
Patricia Moulton Powden
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.
W. G. v. S. D. Ireland Concrete (May 9, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
W. G. Opinion No. 15-08WC
v. By: Jane Gomez Dimotsis
S.D. Ireland Concrete,
Liberty Mutual For: Patricia Moulton Powden
State File No. W-53174
OPINION AND ORDER
Thomas Nuovo, Esq. for Claimant
Eric Johnson, Esq. for Defendant
1. Are Claimant’s alleged injuries to both his shoulders and carpal tunnel syndrome compensable under the Workers’ Compensation Act?
2. Is Claimant entitled to Temporary Total Disability Benefits and Permanent Partial Disability Benefits as well as all medical treatment, attorney’s fees and costs?
Joint Medical Exhibit
Exhibit1 – S.D. Ireland Truck Load Register for trucks
Exhibit 2 – Repair History of Claimant’s work truck
Exhibit 3 – Fee Agreement with Jason Sawyer, Esq.
Exhibit 4 – Fee Agreement with Thomas Nuovo, Esq.
Exhibit 5 – Photograph of Sign outside S.D. Ireland stating all loads must be tarped
Exhibit 7 – Medicare Information
Exhibit 8 – Picture of Claimant’s truck used at work showing crank
Exhibit 1 – Deposition Transcript of Claimant dated May 19, 2005
FINDINGS OF FACT:
1. The Department takes judicial notice of all forms in its file relevant to this case.
2. The Claimant was an employee of S.D. Ireland under the Workers’ Compensation
Act during the relevant time period of this dispute. S.D. Ireland is found to be an employer under the Workers’ Compensation Act at all times relevant to this dispute.
3. The Claimant began work for S.D. Ireland in May of 2001 as a dump truck driver. The Claimant is 53 years old. Claimant is morbidly obese and suffers from a number of medical conditions including diabetes.
4. The Claimant has a high school degree and no further education. He has a CDL license.
5. The Claimant has a long history of medical problems. However, the issue in the instant case is whether he suffered a compensable injury under the statutes on September 9, 2004 while working for S.D. Ireland involving both his shoulders and carpal tunnel syndrome. He has had five surgeries since the alleged injury and is seeking temporary partial disability, permanent partial disability, medical benefits and attorney’s fees and costs.
6. The Claimant believes his injuries are the result of his work activities for S.D. Ireland. Specifically, he argues that he was injured by using a hand operated winch to place a tarp over the rear compartment of the dump truck he operated for his employer. He had to “tarp” his loads up to approximately 20 times per day. However, the records submitted show the average day of work to involve significantly less than 20 times of tarping per day. In order to crank the tarp over the back of the truck it took about 20-25 hand cranks according to the Claimant. This would account for less than a maximum of 20 minutes out of an 8 hour day if the Claimant had to use the tarp 20 times.
7. The Claimant testified that he had requested S.D. Ireland to provide an electrical mechanism to “tarp” his truck due to his prior “disability”. The Claimant believed he was disabled due to some prior injuries. His employer supplied him with an “electric” tarp for a short time and then gave him a truck with a manually operated tarp.
8. As stated, the Claimant worked for S.D. Ireland beginning in May of 2001 and was laid off from December 2002 until April or late March 2003. In November 2003 he was laid off again and returned to work in May of 2004. The Claimant stated that from July through September of 2004 he did use the manually operated tarp. However, he stated in September of 2004 he began the symptoms of headaches and shoulder aches. He left his employment in November of 2004 due to the fact that he allegedly could not handle the pain anymore. Claimant did have a note from his treating physician, Dr. Eugene Moore, taking him out of work for two weeks but during that period or shortly after, the employer laid him off. The Claimant states he has not worked since the fall of 2004.
9. The Claimant began receiving Social Security Disability in December of 2006 which was dated back to May 2005 due at least in major part to his breathing difficulties which are unrelated to this case.
Prior Medical Work Related Injuries
10. Throughout his adult life, the Claimant has a history of injuries and substantial periods of time for which he has not worked. These include a period in 1981 when Claimant had a back injury while working as a truck driver when he lifted a heavy barrel and hurt his back. He was subsequently “sucker-punched” in the neck by one of the employees that same year. He was out of work and collected workers’ compensation benefits for several months.
11. Next, Claimant injured his back in 1986 during a motor vehicle accident. He was out of work for three years following the accident and collected workers’ compensation benefits. The Claimant conceded, in his hearing testimony, his back injury from this accident never resolved. He also suffered some cracking in his shoulders from the accident which he did not readily admit. On or about March 2, 1987, Claimant complained of left elbow pain, right ankle pain, and left shoulder pain as well as back pain. Claimant was assessed a 5 % whole person permanent impairment for his low back.
12. Claimant returned to work in 1989 as a janitor at St. Michael’s College where he filed another workers’ compensation claim for an injury to his right arm and shoulder from washing blackboards. He was out of work for approximately the next three years collecting Workers’ Compensation benefits based on a diagnosis of tendonitis in his right shoulder. Claimant was also diagnosed with bilateral thoracic outlet syndrome. He received a 5 % whole person impairment for his right shoulder and 2 % whole person impairment for his neck.
13. In 1990 the Claimant saw a rheumatologist and complained of shoulder and neck pain. At that time Claimant stated that his neck pain was disabling.
14. In 1990, Claimant’s orthopedic surgeon, Dr. Nichols, determined the Claimant’s constant shoulder pain as well as burning in his arms and elbows were consistent with an inflammatory process in the shoulders and thoracic outlet syndrome.
15. Throughout 1991 and 1992, medical records show that the Claimant reported to medical doctors that he was experiencing pain in his shoulders, neck and arms and requested medication. He was seen at the Medical Center Hospital for Vermont Occupational Therapy for right shoulder degenerative joint disease in 1992 and it was reported that he could not work at full capacity.
16. Claimant returned to work around 1993 as a truck driver. Claimant hurt his back in 1999 while lifting a wheelbarrow of asphalt. He also reinjured his back when a co-worker bear hugged him. He received workers’ compensation benefits and was again out of work for about six months. He treated with Dr. Verne Backus and Dr. Johansson. There was determined to be a 0 % permanent impairment rating for his injury.
17. Claimant then worked as a truck driver for about six months until he was laid off and collected unemployment insurance for approximately six months.
18. Claimant continued to seek treatment for his neck, back and scapula, rib area and shoulders both before and after 1999. In January of 2000, Claimant was seen at Immediate Care for upper back pain. He again reported right shoulder pain, neck and right scapular pain. He was diagnosed as suffering from a shoulder and cervical strain related to previous issues, including those for which he had received his prior pre-existing permanent impairment ratings.
19. Claimant had an x-ray in January of 2000 for persistent right shoulder pain. The films were read as showing “degenerative changes as seen in both acromiolclavicular joints.” Degenerative osteophytes formations were seen throughout his thoracic spine.
20. On February 29, 2000, Dr. Paul Hayes filled out a Workers’ Compensation form which indicated that Claimant was suffering from acute thoracic radiculitis – radicular symptoms in his arms caused by degenerative spinal changes at the T7 through T10 levels.
21. On May 16, 2000, Claimant was offered a vocational rehabilitation assessment. On that date, Claimant stated his workers’ compensation checks were due to end. He stated that he spent his time working around the home, watching videos, fishing and selling cars that he had acquired. Claimant also had a history of riding snowmobiles, ATVs, jet skis, and fixing ATVs and trucks to sell. Claimant also iced fished, spear fished, and had a boat with an engine which he used to fish on Lake Champlain. Claimant told the Vocational Rehabilitation Counselor that he could physically tolerate truck driving although he said he was still in pain and wanted to continue chiropractic care.
22. Claimant began work in the instant case as a truck driver in May of 2001. He worked the entire year and then took a lay off in the fall of 2002 until the spring of 2003. The company had to downsize in the winter and asked employees if they wanted to be laid off. The Claimant always chose to be laid off and collect unemployment.
23. In January of 2003, Claimant went to Fletcher Allen Emergency Health Care for injuries he suffered in a snowmobile accident. He told the hospital he was going 60 miles an hour on his snowmobile. He now says this was not true. He complained after the accident of rib and side pain. A cervical collar was applied to Claimant. He also complained of severe pain on his left side and left chest and shoulder. The doctors considered whether Claimant had a C3-C4 osteophyte fracture. Claimant was noted to have degenerative joint disease as well as left sided oblique neck strain. He did complain at that time of chronic shoulder pain and longstanding intermittent right upper extremity paresthesis and numbness for the past ten years. He told the doctors that he saw a chiropractor for his back and neck.
24. He also informed the doctors that he had suffered a Jet Ski crash the prior year and had been suffering from chronic right shoulder pain. He reported to the staff of Fletcher Allen that he was “disabled.” The Claimant did, however, continue to work as a truck driver after this accident.
25. Claimant’s complaints at that time regarding his ribs, spine, back, neck and right shoulder and radicular symptoms continued through August of 2003.
26. In February, 2003, Claimant went to Fletcher Allen Emergency Health Care emergency room to complain that he had slipped on the ice and had fallen on his lower back and right side.
27. Claimant obtained a cross-bow permit in October of 2003 which requires under Vermont law that a doctor find the applicant disabled. Dr. Eugene Moore wrote a doctor’s note that stated that the Claimant’s condition met the disability requirement for a cross-bow permit.
28. In December of 2003, the Claimant had an incident with the tailgate of his truck. He had forgotten to close his tailgate. He had to reopen the tailgate and clean the dirt out. He had to reach in with his hands and pull the 400 lb. tailgate open. He went to a chiropractor for treatment for this incident.
29. On February 6, 2004, Claimant reported that he had fallen twice and his back pain was worse.
30. The majority of the medical records do not correspond to Claimant’s testimony at hearing that he had not had pain complaints or treatment between 1989 and 2004.
31. All of these problems occurred prior to or during his work period with S. D. Ireland.
The Accident/Cause of Claim
32. Claimant, in the instant case, states that shortly after he returned to work at S.D. Ireland in May of 2004 he was injured by using a hand crank to tarp his truck. However, the amount of tarping that Claimant had to do did not increase from other years. Claimant had disclosed to Dr. Verne Backus during an independent medical examination that the regulations regarding tarping had changed in 2004 and thus, he had to increase the amount of times he had to tarp his truck. After Dr. Backus checked with Claimant’s employer and found otherwise, the Claimant admitted that he had not been truthful to Dr. Backus.
33. Claimant first sought treatment for his alleged work related injuries with Dr. Timothy Fitzgerald. Claimant had stopped using the hand crank at least approximately two weeks prior to his visit with Dr. Fitzgerald. Dr. Fitzgerald found the injuries not typical of a specific work related injury and stated they could be related to an exacerbation of a prior underlying chronic condition.
34. On September 21, 2004, Claimant reported his chronic neck pain had worsened. The doctor noted that the pain described was similar to previous episodes and that the Claimant had similar symptoms many times before. Claimant was given injections for pain in his shoulders. Claimant went to the emergency department on the same date where he reported his history of tendonitis and his prior impairment ratings.
35. On October 12, 2004, Claimant had an MRI of his right shoulder which revealed severe degenerative arthrosis.
36. On November 2, 2004, Claimant saw Arne Heggen, PA-C at Associates in Orthopedic Care for bilateral shoulder and elbow pain. He described his shoulder pain had developed over the past several years. Claimant reported the use of the hand crank at work had become more frequent which is not corroborated by his employer. PA-C Heggen’s exam did not show muscle wasting but stated he did believe the Claimant’s MRI films showed severely degenerative AC joint disease with some inferior spurring on the right. He also found left severe degenerative AC joint disease. Dr. Heggen did radiographs of both shoulders which confirmed degenerative AC joint disease. The MRI also revealed the enlarged degenerative AC joint mass negative effect on the Claimant’s rotator cuff.
37. The Claimant saw PA-C Heggen again in 2004. At that appointment the doctor’s impression was the Claimant had bilateral shoulder pain with AC joint arthrosis and subacromial spur on the right. He was given cortisone injections.
38. During physical therapy in January of 2005, the Claimant complained to his physical therapist that he had been fishing all weekend and now his shoulders were killing him. He again complained of shoulder pain after fishing in July of 2005.
39. The Claimant saw Dr. John Lawlis several times in 2005. When asked by the Claimant to comment on causation, after the Claimant told him that he had not had any previous shoulder pain, the doctor found at first blush he was reasonably medically certain that his symptoms were caused by the work place. However, he also stated that a significant component of his problems were from degeneration. Later, upon hearing of the Claimant’s complete medical history he stated he preferred not to comment on causation as he could not be reasonably medically certain as to what caused the Claimant’s problems.
40. On April 4, 2005, the Claimant underwent surgery by Dr. Lawlis. Dr. Lawlis did a right shoulder arthroscopy, arthroscopic decompression, distal clavicle excision and rotator cuff repair on the Claimant. The post- operative diagnosis was right shoulder impingement syndrome, acromloclavicular arthrosis and a rotator cuff repair.
41. In September of 2005, the Claimant presented a large stack of paperwork containing load slips from his trucking jobs over his career. The Claimant asked the doctor if this type of work could aggravate his degenerative condition and Dr. Lawlis agreed that based on what he saw, the Claimant’s degenerative condition could have been aggravated by his work. (emphasis added.)
42. Dr. Lawlis operated arthroscopically on Claimant’s left shoulder on September 29, 2005. His post-operative diagnosis was left shoulder impingement syndrome, acromloclavicular arthrosis, supraspinatus tear and subscapularis tear. Dr. Lawlis offered the Claimant a TENS Unit but he declined. He also declined physical therapy at this time because he did not want to pay for the gas to drive him back and forth to therapy. Dr. Lawlis had referred the Claimant to Dr. Ciongoli regarding a suggestion of carpal tunnel syndrome or central stenosis of the cervical spine.
43. In September of 2005, Dr. Eugene Moore wrote a letter, at the request of the Claimant, indicating it was more likely than not that claimant’s injuries were the result of repetitive use or strain related to his work activities. Dr. Moore did no analysis of the type of work the Claimant did or how repetitive it was. He merely relied on the Claimant’s word.
44. In March of 2006, Dr. Moore completed a physical examination on the Claimant for his CDL license. When asked if he had suffered from any illness or injuries the Claimant denied that he had. When asked if he had shortness of breath (for which he received his SSDI) he denied it. Dr. Moore gave the Claimant a good health evaluation for his CDL license. This is in conflict with Dr. Moore’s other medical opinions regarding the Claimant.
45. Dr. A. Kenneth Ciongoli, D.O., determined the Claimant was “double crushed” and maybe even “triple crushed.” (Double crush syndrome is a compression neuropathy of two areas usually distant from each other as a result of nerves being crushed in the spine.) Dr. Ciongoli again diagnosed the Claimant with thoracic outlet syndrome and mild carpal tunnel syndrome. An MRI had shown spinal stenosis and neuroforminal narrowing as well as rotator cuff tears. Dr. Ciongoli did find that the carpal tunnel syndrome was likely caused by vibrations from the Claimant’s truck driving. It is not known what the Claimant, if anything, revealed regarding his other activities with recreational machines and personal truck driving. Also, Dr. Ciongoli’s opinion was not to a degree of medical certainty.
46. On October 13, 2006, Dr. Lawlis performed an endoscopic left carpal tunnel release without complications. On December 4, 2006 the Claimant underwent a right carpal tunnel release without complications. Following this surgery, the Claimant continued to complain of left shoulder pain and lower back pain. Due to the continued pain in the Claimant’s left shoulder, Dr. Lawlis performed arthroscopic surgery on his shoulder again on March 8, 2007. However, a new MRI had not shown any changes since the last MRI.
47. Following surgery in May of 2007, the Claimant had just learned he was diabetic. He did not attend physical therapy more than once or twice for his shoulder. He said he couldn’t afford it. Dr. Moore continued, as he had for some time, to prescribe narcotics for Claimant’s pain. Dr. Lawlis prescribed strengthening exercises.
Independent Medical Examinations
1. Claimant saw Dr. Backus for an Independent Medical Examination on November 19, 2004. The Claimant told Dr. Backus some rather large exaggerations regarding his medical complaints and job duties. He later admitted at the hearing that he had not told Dr. Backus the truth because he was angry with his employer.
2. Dr. Backus noted a callous on Claimant’s hand that seemed inconsistent with just driving a truck. Dr. Backus also noted that the Claimant’s pain minimized from the beginning of the examination to the end of the examination. He also noted that the neurological examinations of the Claimant’s upper extremities were normal.
3. Dr. Backus did find severe symptom magnification. Dr. Backus did not find Claimant’s injury causally related to his work noting Claimant had had degenerative joint disease of the right rotator cuff diagnosed by Dr. Nichols in 1992. Dr. Backus did not find the operation of the hand crank on Claimant’s truck at S.D. Ireland consistent with Claimant’s condition or alleged injuries. Dr. Backus’ diagnosis at that time was bilateral shoulder pain caused by A.C. joint arthrosis and subacromial spurring.
4. Dr. Mark Bucksbaum saw the Claimant as an Independent Medical Examiner on behalf of the Claimant on two occasions; November 18, 2005 and July 20, 2007.
5. Dr. Bucksbaum did not have all of the Claimant’s medical records when he first examined the Claimant and reviewed medical records for his 2005 Independent Medical Examination.
6. Dr. Bucksbaum did review prior MRIs and x-rays of the Claimant’s shoulders which did show degenerative disease. This was noted as early as 1989.
7. Dr. Bucksbaum believed Claimant to be at medical end result for carpal tunnel and his shoulder syndrome in 2005. He provided permanency ratings for those conditions. He assessed an 11 % whole person rating related to the Claimant’s upper right extremity. He did not, however, reduce this to take into account the prior 5 % assessed for permanency of the Claimant’s right shoulder.
8. Claimant had undergone surgery for his left shoulder and Dr. Bucksbaum saw him only 49 days after surgery. Dr. Bucksbaum found he was not at medical end result for his left shoulder at the time he saw him. Dr Bucksbaum assumed that the Claimant would have reached medical end result for his left shoulder in approximately March or April of 2006. Dr. Bucksbaum indicated that he would expect the Claimant to be able to work full time, light duty at the point of medical end result in the early spring of 2006.
9. Dr. Mark Bucksbaum next saw Defendant in 2007 for another Independent Medical Examination. He noted the additional surgeries that the Claimant had undergone since his last visit with him which were carpal tunnel surgery and an additional shoulder surgery. He was also made aware that the Claimant was diabetic.
10. Dr. Bucksbaum found the Claimant had reached medical end result for both surgeries. He assessed the same 11% whole person impairment under the AMA Guides, 5th Edition. He did so based on the two carpal tunnel surgeries and the positive electro-diagnostic studies pursuant to the AMA Guides.
11. Defendant takes issue with the fact that although Dr. Bucksbaum admitted the Claimant was morbidly obese he did not take this into account even though he testified that morbid obesity could have been the cause of the carpal tunnel syndrome. He also did not appear to take into account the Claimant’s diabetes although this is known to contribute to carpal tunnel syndrome. The same argument is also made regarding the Claimant’s thoracic outlet syndrome and its positive relationship with carpal tunnel syndrome. Dr. Bucksbaum did not find that diabetes caused the carpal tunnel in this case because diabetes usually begins with the feet and legs and progresses upwards in the body. This was not the progression in the Claimant’s case, in his opinion.
12. Dr. Bucksbaum did find that in his 2007 medical exam that the Claimant was at medical end result for his conditions and required no additional treatment. He found that the Claimant was able to work full-time in at least a light duty capacity.
13. Of note is that in the 2005 conclusions of Dr. Bucksbaum’s medical evaluation he noted that he found Claimant credible. In 2007, however, Dr. Bucksbaum gave the Claimant a zero credibility rating. Dr. Bucksbaum explained the many reasons why he did not find the Claimant credible. Most of the factors were related to statements that the Claimant had made to doctors who were later found not to be correct and the Claimant’s own resistance to rejoining the work force.
14. Under cross examination at hearing, Dr. Bucksbaum stated that to some extent he had been relying on Claimant’s self-reports of his symptoms, condition and work activities.
15. Dr. Ensalada saw the Claimant in 2007 for an Independent Medical Examination. Dr. Backus, Dr. Bucksbaum and Dr. Ensalada all have excellent credentials and frequently testify or write reports for workers’ compensation cases. Dr. Ensalada performed a physical examination on the Claimant, including his thoracic spine, lumbar spine and a complete musculoskeletal examination, and a neurological examination. The examination findings were normal except for the Claimant’s shoulder’s range of motion. Dr. Ensalada diagnosed Claimant with a severe pre-existing degenerative spine condition. He determined the Claimant had 9% whole person impairment under the AMA Guides. He also determined the Claimant had a full work capacity within the medium range.
16. Dr. Ensalada determined that the surgeries undergone were reasonable and necessary. That does not mean he found them causally related to Claimant’s work. He also questioned the Claimant’s credibility and found extreme symptom magnification. Dr. Ensalada determined that the Claimant had severe degenerative joint disease which progresses with age, as well as becoming more symptomatic with age.
CONCLUSIONS OF LAW:
1. In order for an employer to be liable for workers’ compensation benefits to a Claimant, there must be a personal injury or medical condition arising out of and in the course of employment. 21 V.S.A. § 601(11) (A). It is the burden of the Claimant to establish all facts essential to support his claim. Goodwin v Fairbanks, Morse and Co., 123 Vt. 11 (1963).
2. Sufficient competent evidence must be submitted verifying the character and extent of the injury and disability, as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984). When the causal connection is obscure and a lay-person would have no well-grounded opinion as to causation, there must be expert medical testimony to sustain the burden of proof. Jackson v True Temper Corporation, 151 Vt. 592 (1989).
3. When evaluating and choosing between conflicting medical opinions, the Department has considered several factors: (1) the nature of the treatment and the length of time there has been a patient-provider relationship; (2) whether accident, medical and treatment records were available to and considered by the examining physician; (3) whether the report, evaluation and testimony is clear, thorough and included objective support for the opinions expressed; (4) the comprehensiveness of the examinations and (5) the qualifications of the experts including professional training and experience. Miller v Cornwall Orchards, Op. No. 20-97 WC (1997). These factors are addressed below.
4. The first doctor to offer an opinion in this case was Dr. Fitzgerald, S.D. Ireland’s physician. He determined that the Claimant’s condition may be related to an exacerbation of a prior underlying chronic condition (emphasis added.)
5. The next doctor the Claimant saw after he complained of severe arm and shoulder pain in 2004 and 2005 was his treating physician, Dr. Moore. Dr. Moore stated that it although it was “impossible to say with certainty how these injuries were caused, it is very likely that the injuries are related to repetitive use and strain as the result of his work which involves repetitive use and strain….” (emphasis added.) Dr. Moore, to a large extent relied on what the Claimant told him about his work and the hand crank for the tarp and the extent to which he had to use it, which we now know is not reliable. Dr. Moore approved the Claimant for his CDL license in 2006.
6. Dr. Mark Bucksbaum did two independent medical examinations of the Claimant. The first was in 2005 and the second in 2007. Dr. Bucksbaum practices physical medicine and pain management in Rutland, Vermont. His is board certified in physical medicine and as an independent medical examiner. As part of his practice, he regularly treats patients with carpal tunnel syndrome and shoulder problems, and as is often asked to determine the cause. Dr. Bucksbaum determined, even though the Claimant had very little credibility with him, that his injuries were related to his work.
7. Dr. Verne Backus also conducted an independent medical examination of the Claimant on November 14, 2004. Dr. Backus is also a certified independent medical examiner and has similar credentials as Dr. Bucksbaum. They are both considered highly qualified experts regarding the type of injuries allegedly suffered in the instant case. Dr. Backus’s conclusion was that the Claimant simply had more symptoms when doing activities with his arms in 2004, but that the work activities themselves were not worsening the Claimant’s underlying conditions, just bringing out the symptoms. Dr. Backus did not find the Claimant’s activities at work were responsible for his prior medical conditions or that they were “aggravated” by them.
8. Dr. Leon Ensalada is also a certified independent medical examiner with excellent credentials in the relevant medical fields. Although the Department decided to give little weight to his report because there was a disagreement regarding why he was not present and available for cross examination, his opinions were the same as that of Dr. Backus regarding the fact that the that the Claimant had a degenerative disease with some increased symptoms while working with S.D. Ireland. He also questioned the credibility of the Claimant and found symptom magnification as other doctors had.
9. The Claimant’s credibility has been an issue through out this claim. Even counsel for the Claimant wrote in his proposed findings of fact that the Claimant “tends to elaborate at times, and even tends to make inaccurate statements about his health, these statements are always overstated his problems rather than understatement them…. [sic] The Claimant made “inaccurate statements to get medical treatment or to preserve his driver’s license. “ The Department must agree that the Claimant overstated his problems when it was beneficial to him and understated his problems to obtain a benefit.
10. It is not disputed that the Claimant has had five surgeries to repair his shoulders and release the nerves for his carpal tunnel syndrome (carpal tunnel syndrome was not diagnosed until almost two years after he left his employment with S.D. Ireland.) However, the relationship between the necessity for surgery and whether the Claimant’s work caused his injuries is in dispute.
11. The Department concludes that every doctor admitted to basing his opinion, at least in part, by using the Claimant’s statements regarding his work activities and medical history. The Department has concluded, as the Defendant has argued and the Claimant’s counsel has conceded in part, that the Claimant has embellished, exaggerated and overstated the facts regarding his medical symptoms and his work activities. If a Claimant fails to make accurate reports to physicians and there is also a disagreement between medical experts regarding the causation of an injury, the conclusions of medical opinions become questionable. In the instant case, the Department finds the Claimant has failed to meet his burden on the causation issue. This is true particularly due to the majority of the Claimant’s experts equivocating regarding causation. Thus, when weighed against other medical experts’ conclusions that the Claimant’s condition and surgeries were not causally related to his work at S.D. Ireland, the Department must find that the burden of proof has not been met.
12. Claimant has not met his burden of proof in this claim. In fact, the evidence indicates that the Claimant was suffering from chronic, degenerative conditions which had plagued him for many years, including degenerative joint and disk disease. Claimant has been found to have a work capacity. The Department DENIES the claim for temporary and permanent benefits as well as medical benefits and attorney’s fees and costs.
DATED at Montpelier, Vermont this 9th day of May 2008.
Patricia Moulton Powden
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.