Catherine Heller v. Bast & Rood Architects (May 9, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Catherine Heller Opinion No. 14-13WC
v. By: Phyllis Phillips, Esq.
Bast & Rood Architects
For: Anne M. Noonan
State File No. T-12409
OPINION AND ORDER
Hearing held in Montpelier, Vermont on March 11, 2013
Record closed on April 11, 2013
Frank Talbott, Esq., for Claimant
Robin Ober Cooley, Esq., for Defendant
1. Is Claimant entitled to additional permanent partial disability benefits referable to
her January 2003 compensable work injury?
2. If yes, what is the extent of the additional permanent impairment she has
3. Is Claimant entitled to reimbursement of Dr. Harvie’s evaluation charges as a
medical expense under 21 V.S.A. §640(a)?
Joint Exhibit I: Medical records
Joint Exhibit IA: Medical records
Joint Exhibit II: Medical records
Claimant’s Exhibit 2: Curriculum vitae, Keith Harvie, D.O.
Claimant’s Exhibit 3: Independent medical evaluation invoice, 2/28/2012
Defendant’s Exhibit A: Curriculum vitae, Thomas Grace, M.D.
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Medical benefits pursuant to 21 V.S.A. §640(a)
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was
her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the
Department’s file relating to this claim. Judicial notice also is taken of the
commissioner’s prior decision in Heller v. Bast & Rood Architects, Opinion No. 32-
10WC (October 5, 2010), aff’d, Vermont Supreme Court Docket No. 2010-405 (May
Claimant’s January 2003 Work Injury
3. Claimant worked for Defendant’s architectural firm. On January 2, 2003 she slipped and
fell on the icy driveway while maneuvering to get into her car at the end of her workday.
In her First Report of Injury, Claimant described a backwards fall that “slammed” her
onto the ice, causing injury to her back, neck, shoulders and hips.
4. Although it disputed the causal relationship between Claimant’s fall and some of her
subsequent complaints, Defendant accepted as compensable those referable to her lower
back. It did so notwithstanding that she had a prior history of treatment for lower back
pain following motor vehicle accidents in 1986 and 2001. In fact, x-ray studies
undertaken some years before her 2003 work injury documented degenerative changes
not only in her lumbar spine, but in her cervical and thoracic spine as well.
5. In 2010 the parties litigated the compensability of Claimant’s other complaints, which
included pain in her cervical and thoracic spine, her knees and her hips. Following a
formal hearing, the Commissioner determined that only the bursitis in Claimant’s left hip
was causally related to the 2003 fall; her other complaints were all referable to
preexisting injuries or conditions.
6. The parties also litigated the question whether proposed prolotherapy injections
constituted reasonable treatment for Claimant’s lower back injury. The Commissioner
determined that they were.
Claimant’s 2004 and 2005 Permanency Ratings
7. Claimant was first determined to have reached an end medical result for her compensable
lower back injury in June 2004, following an independent medical examination with Dr.
Grace, a board certified orthopedic surgeon retained by Defendant for this purpose.1 Dr.
Grace diagnosed Claimant with grade 1 spondylolisthesis, a degenerative condition, at
the L4-5 level of her lumbar spine. Based solely on this diagnosis, in accordance with the
AMA Guides to the Evaluation of Permanent Impairment (5th ed.), he determined that
Claimant had suffered a seven percent whole person permanent impairment referable to
her 2003 work injury. Notably, during this examination Claimant demonstrated 70
degrees of lumbar spine flexion (forward bending) and 25 degrees of extension
(backwards bending). According to the AMA Guides, these measurements were
insufficient to qualify her for any additional impairment based on reduced range of
8. Dr. Grace next examined Claimant in August 2005. This time he calculated her
permanent impairment at ten percent whole person. The increase was attributable to two
factors. First, consistent with another independent medical examiner’s determination, Dr.
Grace added one percent impairment for documented degenerative disc disease at L2-3,
which he concluded was referable to Claimant’s work injury along with the degeneration
he previously had rated at L4-5. Second, because Claimant now was demonstrating only
40 degrees of lumbar flexion (down from 70 degrees in 2004), under the AMA Guides she
now qualified for an additional two percent impairment on account of her reduced range
of motion, which Dr. Grace determined was attributable to the work injury as well.
9. In June 2007 the Department approved the parties’ Agreement for Permanent Partial
Disability Compensation (Form 22), by the terms of which Defendant agreed to pay
permanency benefits in accordance with Dr. Grace’s August 2005 impairment rating. In
the Agreement, the parties described the compensable injury as “degenerative disc
disease and related symptoms.”
Claimant’s More Recent Treatment and Permanency Ratings
10. Following the Commissioner’s determination in her favor as to the reasonableness of
prolotherapy injections, Finding of Fact No. 6 supra, in 2010 Claimant resumed
treatment for her compensable lower back condition. Between January and April 2011
she underwent both lumbar epidural and facet injections, the purpose of which was
concurrently diagnostic – to help differentiate her spinal pathology from her hip
pathology – and therapeutic. In June and July 2011 she underwent prolotherapy
injections, which seemed to relieve some of the muscular dysfunction in her lower back,
at least for a time. For the most part, however, her pain persisted.
11. In February 2012 Claimant presented to Dr. Harvie, a board certified osteopath and
orthopedic surgeon, for evaluation. Claimant testified that her purpose for doing so was
1 Dr. Grace first evaluated Claimant in January 2004, but determined that she was not yet at end medical result. For
that reason, he estimated but did not conclusively rate her permanent impairment at that time.
to gain a better understanding of how the dysfunction in her lower back was evolving and
to learn whether a surgical solution might ultimately become necessary. I find that it was
appropriate for Claimant to seek out Dr. Harvie for this purpose, and also that it was
necessary for him both to review her voluminous medical file and to conduct a thorough
examination in order to provide well-reasoned and considered medical advice.
12. However, it is apparent from her attorney’s referral letter that the purpose of Dr. Harvie’s
evaluation was also to render an opinion regarding a variety of other medical and legal
issues facing Claimant, only some of which were related to her compensable lower back
condition. For example, in addition to soliciting a current permanent impairment rating
referable to her lower back, the attorney also asked Dr. Harvie to respond to questions
concerning the dysfunction in her right hip and right and left knees, all conditions that the
Commissioner previously had decided were not compensable. From reviewing Dr.
Harvie’s report and formal hearing testimony, I find that he likely devoted at least onethird
of his time to issues that were unrelated to Claimant’s compensable injury.
13. Dr. Harvie rated the extent of Claimant’s current whole person impairment referable to
her lumbar spine at 16 percent.2 As compared with the ten percent impairment that Dr.
Grace found in 2005, the difference lies in Claimant’s inability to extend backwards
during Dr. Harvie’s examination. According to the AMA Guides, this range of motion
deficit alone qualified her for an additional seven percent impairment. Using the AMA
Guides’ combined values chart, Dr. Harvie combined this impairment with (a) two
percent impairment for deficits in flexion; and (b) seven percent diagnosis-related
impairment to arrive at his final rating.
14. Dr. Grace also rendered an updated impairment rating, after conducting another
independent medical examination in April 2012.3 He too found that Claimant’s range of
motion had decreased since his 2005 exam, although the particulars were somewhat
different from Dr. Harvie’s.4 Dr. Grace’s final whole person impairment rating referable
to the lumbar spine was fifteen percent. The one-percent difference between the two
ratings relates to the manner in which the AMA Guides’ combined values chart was
applied; I find that Dr. Grace’s methodology was the correct one.
2 Dr. Harvie also rated a three percent impairment referable to Claimant’s compensable left hip condition.
Permanency benefits for this impairment were previously paid and are not currently at issue.
3 Dr. Grace also evaluated Claimant in 2007, for reasons unrelated to her lower back injury.
4 Whereas Dr. Harvie measured 45 degrees of flexion and zero degrees of extension in his evaluation, Dr. Grace
measured only 30 degrees of flexion, but ten degrees of extension. Added together, in both cases the resulting
impairment attributable to range of motion deficits is nine percent.
Expert Opinions as to Causation of Increased Impairment
15. Diagnostic imaging studies have documented that the degenerative disease in Claimant’s
lumbar spine has worsened in the years since Dr. Grace’s 2005 permanency evaluation.
Both Dr. Harvie and Dr. Grace attribute the increased range of motion deficits they
measured, and consequently Claimant’s increased permanent impairment, to the
progression of this condition. Where the two doctors differ is as to the role, if any, that
Claimant’s 2003 work injury has played in the process.
16. According to Dr. Harvie, a backwards fall onto the buttocks, such as the one Claimant
described, can result in significant trauma to the spine. In his opinion, that event likely
has had a “profound” impact on the rate at which the preexisting degenerative disease in
her lumbar spine has progressed.
17. Other factors likely have played a role in the progression of Claimant’s degenerative
disease as well. Dr. Harvie acknowledged that weight gain, lack of exercise and core
strength, family history and the aging process in general all have probably contributed.
He admitted that it would be impossible to quantify the extent to which any one factor
has caused the disease to accelerate. As a result, he could not break down the increase in
Claimant’s permanent impairment between 2005 and 2012 to that portion attributable to
trauma from her fall and those portions attributable to other causes.
18. Because Claimant’s condition is by its very nature a degenerative process, it likely will
continue to progress in the years to come. Notably, Dr. Harvie predicted that if she were
to lose weight she might be able to decrease the rate at which her range of motion
worsens over time. If she does not do so, her permanent impairment likely will continue
19. Dr. Grace concurred with Dr. Harvie’s analysis as to the many factors that have
contributed to cause the degeneration in Claimant’s lumbar spine to worsen over time,
including prior injury, body mass, age and genetics. He acknowledged that the 2003 fall
likely played a role in the process. However, he disagreed that trauma from the fall
reasonably can be held accountable at this point for whatever ongoing degeneration has
occurred. Instead, he pointed to the aging phenomenon as the most likely causal factor.
With age come increased joint stiffness as well as arthritic degeneration, and therefore
decreased range of motion. In Dr. Grace’s opinion, it is difficult to speculate whether
Claimant would have exactly the same range of motion in her lumbar spine now even if
she had not suffered her 2003 work injury, but certainly she would have some additional
deficits as compared with 2005.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts
essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must
establish by sufficient credible evidence the character and extent of the injury as well as
the causal connection between the injury and the employment. Egbert v. The Book Press,
144 Vt. 367 (1984). There must be created in the mind of the trier of fact something
more than a possibility, suspicion or surmise that the incidents complained of were the
cause of the injury and the resulting disability, and the inference from the facts proved
must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941);
Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
Modification of Permanency Award Based on “Change in the Conditions”
2. Claimant here seeks additional permanent partial disability benefits on the grounds that
her work-related lower back injury has progressed to the point of causing further
permanent impairment as compared to what was rated and paid in 2005. Defendant
agrees that her impairment has increased, but disputes both the legal and factual basis for
any additional award of benefits.
3. Vermont statute allows for an award of workers’ compensation benefits to be modified at
any time within six years from the date of the original award “upon the ground of a
change in the conditions.” 21 V.S.A. §668; see, e.g., Estate of Richardson v. Regular
Veteran’s Association Post #514, Opinion No. 04-11WC (February 16, 2011). The
statutory language does not exclude permanency awards from modification. However,
the very nature of such awards demands that a request for modification be closely
scrutinized. A permanency award is, after all, presumed in most cases to be permanent.
4. “[An] award for permanent incapacity looks to the future to compensate for the probable
reduction in earning power that will attend [an injured worker] for the remainder of his
working life.” Orvis v. Hutchins, 123 Vt. 18, 22 (1962). Thus, while temporary
disability benefits are payable during the healing process, permanency benefits do not
become due until the injured worker “is as far restored as the permanent character of his
injuries will permit.” Id. at 24. At this point, the worker is deemed to have reached the
“end result” of his or her physical recovery period. Bishop v. Town of Barre, 140 Vt.
564, 571 (1982).
5. Notably, by delineating the point at which the injured worker has recovered as much
function as possible following a work-related injury, the concepts of end medical result
and permanency focus on the extent to which a compensable injury or condition has
improved, not the extent to which it might continue to worsen. See Workers’
Compensation Rule 2.1200 (defining “end medical result”).
6. Recognizing that every award of permanent partial disability benefits thus encompasses
the possibility that a claimant’s condition still might continue to deteriorate even after an
end medical result is declared, the question becomes, under what circumstances should
modification on the grounds of “a change in the conditions” be granted?
7. One obvious requirement is that any change in an injured worker’s condition that results
in an increased permanent impairment must be shown to have been caused by the work
injury rather than non-work-related factors. Establishing this causal nexus is as necessary
in the context of modification as it is in the context of an initial award. Egbert, supra;
see, e.g., Marshall v. State of Vermont, Vermont State Hospital, Opinion No. 01-11WC
(January 25, 2011).
8. The interrelationship between end medical result and permanent partial disability dictates
a second requirement as well. For the same reason that a claimant cannot be awarded
permanency benefits initially until curative treatment has concluded and the condition has
stabilized, so too a prior award should not be modified unless additional curative
treatment has been undertaken and an end medical result reached. Otherwise, the
“permanent” aspect of the award will be lost, and piecemeal recoveries might result.
9. Considering the second requirement first, I conclude in this claim that the treatment
Claimant has undergone since 2010, including evaluations and referrals related to the
various injections referred to in Finding of Fact No. 10 supra, has been curative rather
than palliative in nature. As the credible medical evidence established, the purpose of
these treatments was both diagnostic and therapeutic. Prior decisions have routinely held
likewise. See, e.g., Luff v. Rent Way, Opinion No. 07-10WC (February 16, 2010); Abare
v. Ben & Jerry’s, Opinion No. 44-08WC (November 5, 2008).
10. As to the first requirement – the causal relationship between Claimant’s 2003 work injury
and her worsened permanent impairment – the parties presented conflicting expert
testimony. Where expert medical opinions are conflicting, the Commissioner
traditionally uses a five-part test to determine which expert’s opinion is the most
persuasive: (1) the nature of treatment and the length of time there has been a patientprovider
relationship; (2) whether the expert examined all pertinent records; (3) the
clarity, thoroughness and objective support underlying the opinion; (4) the
comprehensiveness of the evaluation; and (5) the qualifications of the experts, including
training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC
(September 17, 2003).
11. Neither of the medical experts here was a treating physician. However, Dr. Grace had the
benefit of conducting numerous independent medical examinations in the years since
Claimant’s 2003 injury, whereas Dr. Harvie only examined her once, some nine years
later. Given that the central issue in dispute involves the manner in which Claimant’s
condition has evolved over time, I conclude that this factor lends added credibility to Dr.
12. Beyond that, I conclude that Dr. Harvie’s opinion suffers from a lack of objective
support. He asserted that the 2003 work injury was still a factor contributing to the
ongoing degeneration in Claimant’s lumbar spine, but acknowledged that there was no
way to quantify to what extent this was so. He also admitted that she could control the
rate at which her range of motion would continue to decline (and thus the extent to which
her permanent impairment would continue to increase) through diet and exercise. The
logical inference is that such non-work-related factors are more likely driving Claimant’s
current circumstance, not an injury that occurred more than nine years ago.
13. In contrast, considering all of the factors that have played a role as Claimant’s condition
has continued to worsen, Dr. Grace credibly concluded that the natural aging process was
the most likely cause of her increased permanent impairment. In doing so, he recognized
how speculative it would be to predict the extent to which the degeneration in Claimant’s
lumbar spine would have progressed had her work injury not occurred. I agree.
14. Claimant points to the language of the parties’ previously approved permanency
agreement, in which the compensable injury was described as “degenerative disc
disease,” as the basis for imposing liability on Defendant for her increased permanent
impairment. I cannot accept this interpretation. That Claimant suffered from preexisting
degeneration in her lumbar spine was never disputed. It would make no sense to ascribe
its entire existence to her 2003 fall.
15. Though perhaps drafted inartfully, the injury Defendant accepted as compensable was not
the degenerative condition in Claimant’s lumbar spine itself, but rather the acceleration or
aggravation of that condition. By virtue of the permanency benefits it paid in 2005,
Defendant already has compensated Claimant for that compensable consequence. At
some point, the causal relationship between her work injury and the continued
progression of her disease becomes too attenuated, however. That point has now been
16. I conclude that Claimant has failed to sustain her burden of proving the extent, if any, to
which her 2003 work injury has caused her permanent impairment to increase since her
2005 permanency award.
Coverage for Dr. Harvie’s February 2012 Evaluation
17. Having previously found that at least one-third of Dr. Harvie’s February 2012 evaluation
was directed at issues unrelated to Claimant’s compensable injury, Finding of Fact No.
12 supra, I allocate one-third of the cost of that examination, or $1,695.00, to those
issues. The remaining two-thirds, or $3,441.00, I conclude are properly allocated to
reasonable medical services provided as treatment for Claimant’s compensable injury, for
which Defendant is responsible under 21 V.S.A. §640(a).
Costs and Attorney Fees
18. As Claimant has failed to substantially prevail on her claim for benefits, she is not
entitled to an award of costs and attorney fees.
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for additional
permanent partial disability benefits referable to her January 2003 compensable injury is hereby
DENIED. Defendant is hereby ORDERED to pay:
1. Medical benefits totaling $3,441.00 in accordance with 21 V.S.A. §640(a).
DATED at Montpelier, Vermont this 9th day of May 2013.
Anne M. Noonan
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: vermont permanent partial benefits
Catherine Heller v. Bast & Rood Architects (May 9, 2013)
M. C. v. Rock of Ages (July 21, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
M. C. Opinion No. 32-06WC
By: Margaret A. Mangan
v. Hearing Officer
Rock of Ages For: Thomas W. Douse
State File No. U-07763
Joseph C. Galanes Esq., for the Claimant
Keith J. Kasper Esq., for the Defendant
The degree of permanent impairment Claimant suffered as a result of his work-related hernia.
1. Permanent Partial Disability Benefits pursuant to 21 V.S.A. § 648
2. Attorney fees and costs pursuant to 21 V.S.A. § 678(a)
3. Legal Interest
1. Joint Medical Exhibit
2. Deposition transcripts of Claimant
3. Deposition transcripts of Dr. Kiernan
4. Deposition transcripts of Dr. Brigham
5. Supporting materials from the AMA Guides and Mastering the AMA Guides
STATEMENT OF FACTS:
1. Claimant began working for Rock of Ages on April 24, 1989 and works there presently. At all times relevant to this action, Defendant Rock of Ages was Claimant’s “employer” and Claimant Myron Coburn was Defendant’s “employee” within the meaning of the Vermont Workers’ Compensation Act.
2. The relevant facts involving Claimant’s injury that arose during the course of his employment are undisputed.
3. Claimant suffered a first work-related hernia on June 28, 2000. Dr. Kiernan repaired the hernia with stitches on July 14, 2000.
4. In the present claim, the Claimant suffered a work-related injury on November 12, 2003. He was pulling on a very long heavy steel and rubber 3 inch diameter hose that got caught. He yanked on it and noticed pain in the same location as his prior hernia. He reported it to his foreman.
5. Claimant’s family physician referred Claimant to Dr. Kiernan who performed surgery to repair the second hernia in same location as the previous hernia.
6. Dr. Kiernan’s pre-operative note describes this hernia as a “recurrent left inguinal hernia.” The Claimant sustained both a direct hernia—a tear in the floor of the canal and an indirect hernia—material protruding through the ring as a result of this work accident. On January 5, 2004, Dr. Kiernan performed the second hernia repair, using a procedure that included placing a prolene mesh and a hernia prosthesis in the injured area. Dr. Kiernan described this hernia as a “pantaloon hernia” because it was a double hernia.
7. Dr. Kiernan’s post-operative follow up examination on January 20, 2004 indicates that Claimant’s hernia was healing well and that he should be able to return to work when quarry re-opened in the spring. However, Dr. Kiernan did note that Claimant should still “avoid very heavy lifting, i.e. 100#’s.”
8. In response to a request from Defendant insurer for a decision regarding a medical end result, Dr. Kiernan examined Claimant on March 9, 2004. Claimant was released to return to work full duty with a cautionary note to be careful when doing extremely heavy lifting 100-150 pounds. Claimant’s job requires extremely heavy lifting daily. Upon releasing Claimant for full duty, Dr. Kiernan conceded that he did not know how much Claimant was required to lift at work.
9. Liberty Mutual Insurance Company is responsible for Defendant’s workers’ compensation to the Claimant. Defendant insurer does not dispute the fact that Claimant suffered a work-related hernia. Defendant insurer paid Claimant all temporary total disability and all reasonable and necessary medical charges incurred as a result of the work-related injury.1
10. Currently, over two years later, Claimant is able to work but continues to experience activity-dependent daily pain while performing his routine tasks at the Rock of Ages quarry. When questioned during his deposition about Claimant’s continued pain, Dr. Kiernan averred that patients who undergo a mesh repair generally have some degree of discomfort during certain activities and some of Claimant’s discomfort may be due to a “nerve that comes through that area called the ilioinguinal nerve, and it runs right underneath the external oblique fascia …” and “An ilioinguinal nerve can cause discomfort whether you sew it or use mesh.”
11. Dr. Kiernan’s March 9, 2004 final examination did not show any evidence of hernia recurrence on physical examination prior to Claimant’s return to work.
12. Defendant did not investigate whether Claimant suffered permanent impairment as a result of his work-related hernia, when, according to Dr. Kiernan, Claimant reached a medical end result.2 Defendant insurer maintains that Dr. Kiernan’s March 9, 1994 examination qualifies both for a medical end result and for a permanency rating. While Dr. Kiernan’s final examination successfully establishes a medical end result, it fails to meet the requirements of a permanent impairment rating using the AMA Guides, which Dr. Kiernan did not do.
13. Claimant’s counsel requested an IME, which was performed by Dr. Fenton on August 3, 2005. Dr. Fenton reported Claimant’s experience of discomfort when he does heavy lifting as “significant pain and dysfunction that lasts around 1.5 days. If he doesn’t do any heavy lifting he has no pain, only the occasional prickly sensation.” Using the AMA Guides Fifth Edition, Table 6.9, Dr. Fenton assigned a 9% permanent impairment rating for the Claimant’s injury “since he has to avoid heavy lifting, and surgical findings were of true hernia mass.”
14. Pursuant to an interim order of December 12, 2005, Defendant began paying permanency benefits retroactive to the August 3, 2005 date of Dr. Fenton’s permanency evaluation.
1 Pursuant to 21 V.S.A. §§ 662(a) and Worker’s Compensation Rule 17.0000 Compensation Agreements—Temporary Total Disability Benefits (Form 21).
2 Worker’s Compensation Rule 18.11 requires that “The employer (insurer) shall take action necessary to determine whether an employee has any permanent impairment as a result of the work injury at such time as the employee reaches a medical end result.”
15. At the request of Defendant’s counsel, Dr. Brigham reviewed Claimant’s medical records on January 24, 2006, and rendered a permanent impairment rating of 0%. Dr. Brigham disagreed with Dr. Fenton’s impairment rating of 9%, because, in his opinion, Dr. Fenton did not properly apply AMA Guides; but he acknowledged that Dr. Fenton did put Claimant into the right categories and class under the guidelines. Dr. Brigham also supported his 0% permanent impairment rating by noting that Claimant’s surgeon, Dr. Kiernan, set no restriction on lifting outside of “what would be normally reasonable for any individual.”
16. After paying 2/3 of Claimant’s 9% permanent partial disability benefits, the carrier filed and this Department approved an Employer’s Notice of Intention to Discontinue Payments (Form 27) effective on February 2, 2006. The Form 27 included as evidence Dr. Brigham’s 0% permanent impairment rating.
17. Dr. Brigham used medical records from Dr. Kiernan’s March 9, 2004 examination and also the IME conducted by Dr. Fenton on August 3, 2005. He established a 0% permanent impairment rating because the medical records contained no evidence of a postoperative palpable defect. When asked about Claimant’s pain, Dr. Brigham maintained that there was no permanent impairment resulting from the successful hernia surgery and, he suggested using chapter 18 of the AMA guidelines, which allow up to 3% maximum impairment of the whole person, based on the extent of patient’s pain—rather than on impairment. To establish his permanent impairment rating of Claimant, Dr. Brigham relied solely upon medical records. Dr. Brigham did not speak with Claimant, conduct a physical examination of Claimant, or read Claimant’s deposition testimony. Dr. Brigham did not address whether Claimant experienced any limitations affecting his activities of daily life.
18. Claimant has a bulge at the surgical site. He experiences regular discomfort at the hernia site. He is in pain every time he picks up something either at work lifting drilling equipment or at home lifting his thirty-two pound, three-year old grandson. Claimant has modified his daily routines at work due to the pain he experiences while lifting. He now leans the drill bits in a standing position rather than laying them down to avoid any extra lifting. Claimant stopped performing regular activities of daily living (ADL) due to discomfort from the second hernia surgery. He tries to be careful about what he does outside of work because he “just doesn’t want to deal with the pain.” For example, Claimant’s wife brings in the groceries and takes care of all the cleaning; Claimant does not shovel snow or dirt in the garden anymore because that too irritates the hernia site. Another example of Claimant’s inability to perform normal activities is that he no longer maintains and repairs the family cars. Claimant acknowledged a regular pattern of reoccurring activity-related pain that he rated at a seven, on a scale from one to ten.
19. Both parties agreed to resolve this matter on the papers in support of their respective positions: they submitted briefs, deposition transcripts, and medical records to the Department.
CONCLUSIONS OF LAW:
1. In a worker’s compensation claim, 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 employment. Egbert v. The Book Press, 144 Vt. 367 (1984).
2. Claimant has established a work-related injury. At issue is the degree to which he is entitled to permanency benefits. The conclusions of the two experts, Dr. Fenton for the Claimant and Dr. Brigham for the Defendant, are sharply divided with Dr. Fenton finding a permanency impairment of 9% of whole person and Dr. Brigham finding no permanency rating. A closer look at the record indicates that the carrier paid 2/3 of the 9% permanency rating before discontinuing payment. Thus, the percentage in controversy is really the final 3% of the permanency rating of 9%.
3. Both experts, Drs. Fenton and Brigham rely on AMA Guides, Chapter 6, Table 6.9, Fifth Edition p.136, for their opinions. Table 6.9 describes three classes of hernia-related impairments, with permanent whole person ratings that range from 0 to 30%. Each class requires a “palpable defect in the supporting structures of the abdominal wall.” In addition:
• Class 1, with a 0% to 9% impairment, requires the palpable defect and:
a “sight protrusion at the site of defect with increased abdominal pressure,
occasional mild discomfort at site of defect, but not precluding normal
• Class 2, with a 10% to 19% rating, requires the palpable defect and:
“frequent or persistent protrusion at site of defect with increased abdominal
pressure, manually reducible”
“frequent discomfort, precluding heavy lifting, but not hampering normal
The table does not distinguish between pre- and post-operative status.
4. Here, Claimant has suffered a work-related hernia. Thus, he satisfies this Department’s previous finding in Knapp-Bowen that “A hernia is a defect. Because it is undisputed that Claimant had a work-related hernia, the threshold criterion for all three classes in Table 7 ‘palpable defect in the supporting structures of the abdominal wall’ has been met” and that once a defect is determined the question arises as to whether the Claimant’s symptoms put him in any of the three classes in Table 6.9 of the AMA Guides.3 Erin Knapp-Bowen v. Equinox Terrace, Op. No. 4-98WC (1998). The AMA Guides example 6-29 shows that an individual is assigned a 0% rating when there is “no significant risk of complications and no limit in ability to perform activities of daily living.” Dr. Fenton’s finding that Claimant is eligible for a rating higher than the 0% found by Dr. Brigham is supported by Claimant’s testimony because his activities of daily living are curtailed; evidenced by his discomfort when lifting his three-year old grandson, that his wife carries in the groceries, his inability to shovel snow or dirt, and that he is no longer able to maintain and repair the family cars.
5. Dr. Fenton’s August 4, 2005 IME noted that Claimant does not experience significant pain and dysfunction if he does not do any heavy lifting but that he still has an occasional prickly sensation. Claimant’s surgeon, Dr. Kiernan, explained that individuals who have received a prolene mesh repair for a hernia commonly experience the occasional prickly sensation because the prolene mesh does not stretch the way skin does. Dr. Kiernan also asserted that Claimant’s pain might be the result of irritation to the ilioinguinal nerve. Either of these explanations indicates that Claimant is impaired due to his hernia surgery. But, Dr. Brigham did not read either Drs. Kiernan and Fenton’s nor Claimant’s depositions, instead of addressing Dr. Fenton’s statement that Claimant suffered “significant pain and dysfunction” in regard to the AMA Guides, Dr. Brigham recommended that Claimant be rated according to Table 18 for pain—rather Table 6.9 for impairment.4
6. Dr. Brigham’s 0% impairment rating is incompatible with the AMA companion edition to the AMA Guides, which is published to assist physicians in applying the Guides, as indicated in Example 6-29 of the AMA Guides Fifth Edition, according to the Master the AMA Guides, “an uncomplicated hernia that does not limit the ability to perform ADL is given a 0% WPI rating.” Fifth Edition, Chapter 6.6, p.81.
3 Table 7 in the 4th Edition of the AMA Guides is now Table 6.9 in the current 5th Edition of the AMA Guides.
4According to the AMA Guides Glossary, impairment is the loss of, the loss of the use of, or derangement of a body part, function or system.
7. Dr. Brigham disputes Dr. Fenton’s 9% permanency rating as inaccurate because Dr. Fenton based his finding on Claimant’s subjective experience of pain. However, Dr. Brigham does not mention that the AMA Guides Fifth Edition, p. 2 states that, “Although the Guides emphasize objective assessment, subjective symptoms are included within the diagnostic criteria.” Dr. Brigham also interprets the AMA Guides, Table 6.9 Class 1 to require as a threshold that Claimant have a “palpable defect in the supporting structure of the abdominal wall.” Despite Dr. Brigham’s unfavorable opinion and regardless of Dr. Fenton’s failure to use language that easily translates his 9% rating into the language of the AMA Guides, his substantive statements, Claimant’s testimony, and case precedent support a 9% rating.
8. The fundamental difference between the opinions, which the defense argues is dispositive, rests upon differing interpretations of how to apply the AMA Guides. Dr. Fenton based his opinion on Claimant’s need to avoid heavy lifting and surgical findings of a “true hernia mass.” Thus, according to Erin Knapp-Bowen v. Equinox Terrace, Claimant is eligible for a permanency rating from 0-10% depending on the degree of protrusion, discomfort, or limitation in activities. Op. No. 4-98WC (1998).
9. The Department applied Knapp-Bowen to the facts of Mason Estabrook v. New England Precision & USF&G Insurance, Op. No. 10-00WC (2000) and found that Mr. Estabrook had suffered an undisputed work-related hernia that “if upon physical examination claimant has resulting frequent discomfort, precluding heavy lifting but not hampering normal activity, his permanent impairment must result in at least a Class 2 impairment according to Table 6.9 of the AMA Guides.” Mr. Estabrook’s treating physician found an abdominal wall defect during surgery and repaired it using prolene mesh. Similiarly, here, Dr. Kiernan found an abdominal wall defect, a direct and indirect double hernia, in Claimant’s abdominal wall, which he repaired using prolene mesh.
10. In Estabrook, this Department relied on expert medical interpretation of the AMA Guides that determined an impairment “is best understood as a residual observable or otherwise identifiable abnormality following an injury or illness” and that a rating greater than zero depended upon “the impact of the residual abnormalities on the individual’s ADL, as they are listed according to the AMA Guides, and on the degree to which an individual’s capacity to carry out daily activities such as those listed on page 317 is diminished.”5 Op. No. 10-00WC (2000). Here, Claimant continues to suffer with residual signs and symptoms two years following his surgically repaired hernia. Therefore, he has an impairment. Furthermore, Claimant does have limited ability to perform ADL, thus, he is eligible for a higher WPI rating.
11. Dr. Fenton rated Claimant according to the Class 1 scale because Claimant experiences “mild discomfort at the site of the defect”—where the prolene mesh is located, which places Claimant in Class 1. Additionally, Claimant experiences frequent discomfort when lifting, which places Claimant in Class 2. But, Dr. Fenton did not place Claimant
5 AMA Guides, p. 317 which list ADL in the Fourth Edition is now listed in Chapter 1, p.7. Relevant ADL include vigorous activities such as lifting heavy objects, carrying groceries, moving a table, or sports like playing golf.
in Class 2 because, unlike Mr. Estabrook who was rated at Class 2, it does not preclude Claimant from heavy lifting, despite Claimant’s experience of activity-related pain on a daily basis, which he chooses to endure in order to continue working at the Rock of Ages quarry. Unlike Mr. Estabrook, Claimant’s daily life activities are, however, curtailed due to discomfort resulting from his hernia repair, thus, Dr. Fenton correctly placed Claimant in the high end of the Class 1 permanent impairment rating, at 9%.
12. Dr. Brigham is undisputedly a qualified expert and author on applying the AMA Guides. However, Dr. Brigham’s application of Table 6.9 of the AMA Guide, in this instance, is contrary to precedent set by this Department in Knapp-Bowen and Estabrook.
13. The credible evidence is also contrary to Dr. Brigham’s conclusion that there was no palpable mass: Claimant’s description of a bulge at the surgical site and Dr. Fenton’s report of a surgical finding of a mass.
14. Dr. Brigham did not speak with Claimant, conduct a physical examination of Claimant, or read Claimant’s deposition testimony. Dr. Brigham uses a formulaic approach to apply the AMA Guides in an effort to standardize their national application but, in so doing, he neglects to take into account Claimant’s credible testimony, evidencing a clear diminution in the quality of his daily life outside of work, and he failed to apply the AMA Guides according to his own standards, which require a physical examination to determine whether the Claimant has a palpable defect.
15. Therefore, based upon this Department’s precedent in Knapp-Bowen, Dr. Fenton’s IME, and Claimant’s credible testimony, the most probable premise is that Claimant sustained a 9% permanent impairment.
ATTORNEY’S FEES AND COSTS:
16. Attorney’s Fees and Costs: Pursuant to 21 V.S.A. §678, Claimant’s entitlement to reasonable and necessary cost is a mater of law; his right to attorney’s fees is a matter of discretion. Morriseau v. Legac, 123 Vt. 70 (1962). See Lowell v. Rutland Area Visiting Nurses Assoc., Op. No. 42-99WC (1999).
WHEREFORE, it is hereby ordered that Defendants pay Claimant:
1. Permanent partial disability benefits based on a 9% whole person impairment;
2. Interest at the statutory rate from August 3, 2005 to the date of payment;
3. Costs of litigation totaling $875.94;
4. Attorney’s fees equaling 20% of the award not to exceed $6,000.
Dated at Montpelier, Vermont this 21st day of July 2006.
Thomas W. Douse
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.