Tammy Cochran v. Northeast Kingdom Human Services (August 12, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Tammy Cochran Opinion No. 31-09WC
v. By: Jane Gomez-Dimotsis
Hearing Officer
Northeast Kingdom Human Services For: Patricia Moulton Powden
Commissioner
State File No. X-00726
OPINION AND ORDER
Hearing held in Montpelier on June 9, 2008
Record closed on August 8, 2008
APPEARANCES:
Vincent Illuzzi, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUES:
1. Did Claimant suffer a work-related low back injury on August 9, 2005?
2. If yes, to what workers’ compensation benefits is she entitled?
EXHIBITS:
Joint Exhibit I: Joint medical record
Claimant’s Exhibit A: Physician’s Verifications of Disability and Out of Work Notices
Claimant’s Exhibit B: Telephone Deposition of Dr. Rowland Hazard, April 30, 2008
Claimant’s Exhibit C: Deposition Testimony of Dr. John Ajamie, May 12, 2008
Claimant’s Exhibit D: Telephone Deposition of Dr. William Spina, May 28, 2008
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Vocational rehabilitation benefits pursuant to 21 V.S.A. §641
Interest pursuant to 21 V.S.A. §664
Costs and attorney fees pursuant to 21 V.S.A. §678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and
Defendant was an employer as those terms are defined in Vermont’s Worker’s Compensation Act.
2. Judicial notice is taken of all forms contained in the Department’s file relating to this claim, as well as to relevant sections of the AMA Guides to the Evaluation of Permanent Impairment, 5th Ed. (the “AMA Guides”).
3. Claimant was employed by Defendant as a vocational specialist. Her job involved helping disabled adult clients find and maintain employment in the community. One of her responsibilities was to demonstrate to clients how to perform their assigned job tasks, by visiting them at their job sites and physically working alongside them.
Claimant’s Background and Prior Medical History
4. Claimant has had a variety of prior work experiences. She has been the owner-operator of a gas station, an emergency family advocate at a supervised visitation center, and an aide for patients suffering from traumatic brain injuries. Claimant home-schooled her children and also ran a day-care facility. She has her GED and several years of college credits. She is computer literate, albeit with limited typing skills.
5. Claimant has carried a diagnosis of fibromyalgia since 1993, when she was involved in a motor vehicle accident. Her symptoms include muscle spasms and burning in her neck and left shoulder, and headaches as well. Claimant also has a history of depression. Most recently, since 2004 Claimant has treated for these conditions with her primary care provider, Dr. Ajamie, who has prescribed narcotic pain relievers and anti-depressants for her symptoms.
6. Claimant testified that notwithstanding her fibromyalgia, until her work injury (described below) she was able to engage in a variety of physical activities, including horseback riding, four-wheeling, hiking, swimming, walking and playing with her children and grandson.
7. At the time of her work injury Claimant was working only twenty hours per week. This was due in part to her family responsibilities – her father was in poor health and her daughter had a disabling condition that had flared up and required more care than previously. Claimant acknowledged that she was under a great deal of stress as a result of these family issues. She admitted as well that the pain from her fibromyalgia sometimes made it more difficult for her to do her job. In consideration of all of these factors, in May 2005 Claimant decided to cut her work hours back to half time.
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The Work Injury and Ensuing Medical Treatment
8. On August 9, 2005 Claimant was working with a special needs client at his job site, a local supermarket. Claimant entered a walk-in cooler to retrieve some frozen food product for the client. As she did so, she fell on the icy floor, hitting her lower back, tailbone, and left buttocks. Claimant immediately felt pain in her low back, down her left leg and into her foot. She took the client home and then went to the emergency room. There she was referred to her primary care physician, Dr. Ajamie, for ongoing treatment.
9. As noted above, Dr. Ajamie had treated Claimant regularly for both fibromyalgia and depression since 2004. He continued to do so after the August 2005 injury, administering anesthetic injections into Claimant’s upper body for her fibromyalgia and prescribing numerous narcotic pain medications, both for that condition and for her low back pain. Although Claimant had been able to work at least twenty hours weekly before the August 2005 incident, thereafter Dr. Ajamie determined that she was no longer able to do so. In keeping with Dr. Ajamie’s determination, Claimant has not worked since August 16, 2005.
10. Dr. Ajamie acknowledged that his role in Claimant’s treatment was as a primary care physician. For further evaluation of her orthopedic and chronic pain issues, ultimately he referred her to the Dartmouth Hitchcock Spine Center’s Functional Restoration Program (the “Dartmouth Hitchcock program”). The purpose of this program is not to “fix” a patient’s underlying condition, but rather to improve his or her ability to function nevertheless.
11. Claimant completed the Dartmouth Hitchcock program in November 2007. She acknowledged that the program failed to relieve her symptoms, but felt that it was successful in restoring some function. There remains some disagreement among the medical providers who have become involved in this claim as to how effective the program really was when considered in light of Claimant’s current level of function and physical capabilities. Even after completing the program, Claimant still does not believe she is capable of working. Nor does she feel able to participate in most of the recreational activities she enjoyed in the past.
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Expert Medical Opinions
12. Numerous medical providers have evaluated and/or treated Claimant in conjunction with her current claim. These include:
