STATE OF VERMONT
DEPARTMENT OF LABOR
Thomas Kibbie v.Killington, Ltd. Opinion No. 05-16WC
- By: Jane Woodruff, Esq.
Administrative Law Judge
For: Anne Noonan
State File No. Z-58225
OPINION AND ORDER
Hearing held in Montpelier, Vermont on December 29, 2014
Record closed on August 21, 2015
Thomas Bixby, Esq., for Claimant
Erin Gilmore, Esq., for Defendant
- Is ongoing treatment for Claimant’s neck pain within the terms of the medical
benefits foreclosed by the parties’ Modified Form 15 Settlement Agreement?
- To what other medical benefits is Claimant entitled?
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Modified Form 15 Settlement Agreement, August 18, 2010
Claimant’s Exhibit 2: Addendum to Modified Form 15 Settlement Agreement,
August 18, 2010
Claimant’s Exhibit 3: Letter from Dr. Miller to Attorney Mabie, May 15, 2012
Claimant’s Exhibit 4: Letter from Dr. Miller to Barbara Hewes, May 29, 2012
Claimant’s Exhibit 5: Letter from Dr. Miller to Attorney Bixby, February 24,
Claimant’s Exhibit 6: Letter from Attorney Mabie to Director Monahan, August
Claimant’s Exhibit 7: Letter from Attorney Mabie to Ms. Bard, March 3, 2011
Claimant’s Exhibit 8: Letter from Attorney Mabie to Attorney Valente, April 23,
Claimant’s Exhibit 9: Letter from Attorney Mabie to Department specialist, June
Claimant’s Exhibit 10: Two prescription co-payments
Claimant’s Exhibit 11: Mileage reimbursement request
Claimant’s Exhibit 12: Saint Francis Hospital bill
Claimant’s Exhibit 13: Multiple health insurance claim forms
Claimant’s Exhibit 14: Saint Francis bills, November and December 2010
Claimant’s Exhibit 15: Physical therapy itinerary, November and December 2010
Claimant’s Exhibit 16: TENS unit denial letter, May 13, 2011
Claimant’s Exhibit 17: Mount Sinai Hospital collection letter, January 18, 2011
Claimant’s Exhibit 18: Dentist bill, May 7, 2008
Claimant’s Exhibit 18A: Letter from dentist office to Attorney Bixby, December 19,
Claimant’s Exhibit 19: Insurance payment history, September 16, 2011
Claimant’s Exhibit 20: Summary of unpaid medical bills
Claimant’s Exhibit 21: Pharmacy printout for 2010 and 2011
Claimant’s Exhibit 22: Expired prescription card
Claimant’s Exhibit 23: Physical therapy prescriptions from Dr. Miller, November
and December 2011
Defendant’s Exhibit A: Approved Modified Form 15 Settlement Agreement,
September 2, 2010
Defendant’s Exhibit B: Email from Attorney Mabie to Attorney Valente with
marked up Form 15 Settlement Agreement, August 10,
Medical benefits pursuant to 21 V.S.A. §640
Costs and attorney fees pursuant to 21 V.S.A. §678
Ruling on Defendant’s Motion to Exclude Evidence
During the formal hearing, Claimant proffered testimony from his former attorney, John
Mabie, Esq., who had represented him at the time that the Modified Form 15 Settlement
Agreement at issue in this case was negotiated. Attorney Mabie sought to testify
regarding the intended scope of the settlement agreement, specifically, which ongoing
medical treatments the parties meant to foreclose thereby. Defendant moved to exclude
the testimony on the grounds that the parol evidence rule rendered it inadmissible. The
administrative law judge reserved ruling on the motion pending further briefing by the
The parol evidence rule is well settled in Vermont. When contracting parties embody
their agreement in writing, the rule prohibits the admissibility of “evidence of a prior or
contemporaneous oral agreement . . . to vary or contradict the written agreement.” Big G
Corporation v. Henry, 148 Vt. 589, 591 (1987) (internal quotations omitted).
The purpose of the parol evidence rule is to prevent fraud and eliminate confusion in the
making of written agreements. Id. at 594. The law presumes that a written contract
contains the parties’ entire agreement. Economou v. Vermont Electric Coop., 131 Vt.
636, 638 (1973) (internal citations omitted). Contract terms that are unambiguous on
their face cannot be modified by extrinsic evidence. Hall v. State, 2012 VT 43, ¶21.
As will be seen infra, Conclusion of Law Nos. 4-16, because I have concluded in this
case that the parties’ Modified Form 15 Settlement Agreement was unambiguous on its
face, I presume that its terms fully embody the parties’ intent. For that reason, I conclude
that Attorney Mabie’s proffered testimony is inadmissible.
Defendant’s Motion to Exclude Evidence is hereby GRANTED.
FINDINGS OF FACT:
- At all times relevant to these proceedings, Claimant was an employee and
Defendant was his employer as those terms are defined in Vermont’s Workers’
- Judicial notice is taken of all relevant forms contained in the Department’s file
relating to this claim.
- Claimant was a volunteer ski ambassador for Defendant, a position he had held
for ten years prior to the 2008 winter season. His duties included helping other
skiers, putting their equipment back on if they fell and generally being pleasant to
the paying customers.
- Claimant resides in Vernon, Connecticut. On weekends during the ski season, he
traveled to Defendant’s ski area to perform his ambassador duties. He did not
introduce any evidence to establish either where he stayed while in Vermont or
what his regular commute distance to and from work was.
Claimant’s January 2008 Work Injury
- At the end of the day on January 12, 2008, Claimant was conducting a final trail
sweep as part of his ambassador duties. His son was accompanying him. During
the run, Claimant fell and hit his head so hard that it cracked his ski helmet. He
credibly testified that he has no real memory of the fall or its immediate
- Claimant’s son called for emergency assistance. Claimant went by ambulance to
Dartmouth-Hitchcock Medical Center, where he was later admitted. A CT scan
revealed a very small hemorrhage in his right temporal lobe, but no skull fracture.
Claimant was discharged home four days later. While he could not specifically
recall at formal hearing what his injuries were upon discharge, he credibly
testified that he remembered not being able to see very well, having a difficult
time walking due to right ankle pain, having pain in his right arm, and just
wanting to get home.
- Defendant accepted Claimant’s injury, which it initially described as
“head/face/concussion,” as compensable, and began paying workers’
compensation benefits accordingly.
Claimant’s Course of Treatment from March 2008 through August 2010
(a) Traumatic brain injury, occipital neuralgia, headaches and neck pain (Dr.
- In March 2008, Claimant entered the traumatic brain injury program at Mount
Sinai Rehabilitation Hospital under the care of Dr. Miller, a board certified
physiatrist with a subspecialty in brain injuries. Dr. Miller diagnosed a traumatic
brain injury with occipital neuralgia, that is, an injury to or inflammation of the
occipital nerves. Dr. Miller also diagnosed a cervical whiplash injury and vision
problems, all causally related to Claimant’s January 2008 work injury.
- Claimant has treated with Dr. Miller continuously from March 2008 to the
present. His initial complaints included headaches, neck pain, loss of taste and
smell, loss of concentration, attention and memory, vision problems and mood
- For Claimant’s whiplash injury, Dr. Miller initially prescribed a muscle relaxant
and administered a cervical injection, which provided only short-term relief. To
address his ankle injury, Dr. Miller referred him to physical therapy. Claimant
also underwent both occupational and speech therapy. For his chronic headaches
and neck pain, Dr. Miller prescribed oxycodone, which Claimant continues to this
day to take for this purpose.
- In April 2008 Claimant underwent a cervical spine MRI in an attempt to identify
the source of significant pain complaints between his right shoulder and the back
part of his head. The results were negative for any pathology. Thereafter, Dr.
Miller administered a series of occipital nerve blocks to address both occipital
neuralgia and neck pain, but these provided only short-term symptom relief.
- During the ensuing months, Dr. Miller continued to administer nerve blocks for
short-term relief of Claimant’s pain. Unfortunately, none of the treatments
provided long-term pain relief. Thereafter, he referred Claimant for craniosacral
therapy. This is a subset of physical therapy that uses gentle hands-on
manipulation of the head and neck to relieve pain.
- Claimant saw Dr. Miller on a monthly basis throughout 2009. He continued to
complain of headaches, neck pain, difficulty processing his thoughts, vision
problems and drastic mood swings. Dr. Miller strongly recommended that
Claimant undergo a neuropsychological evaluation with counseling thereafter.
Defendant approved one counseling session, but none after that until its own
expert, Dr. Drukteinis, recommended psychological counseling in July 2012, see
Finding of Fact No. 58, infra. The evidence does not reflect any basis for
Defendant’s refusal to pay. Claimant also continued to engage in craniosacral
therapy during this time, which provided him with some measure of pain relief.
(b) Fractured teeth and dental work (Dr. Shlafstein)
- Claimant credibly testified that prior to his January 2008 work injury, his teeth
- The work injury caused damage to seven teeth. Specifically, in March 2008
Claimant’s treating dentist, Dr. Shlafstein, diagnosed fractures to tooth numbers
25, 26 and 30, and chips and possible fractures to tooth numbers 7, 8, 9 and 10, all
causally related to the January 2008 work injury.
- Dr. Shlafstein repaired the fractures to tooth numbers 25 and 26 in March 2008.
To repair the other injured teeth, he determined that Claimant would require full
coverage crowns. Otherwise, he risks further damage to the roots, which might
necessitate root canals and/or excision. I find this analysis credible.
- Defendant accepted the repairs to tooth numbers 25 and 26 as causally related to
the work injury and paid the associated dental bills accordingly. As for the
repairs to tooth numbers 7, 8, 9, 10 and 30, it is unclear from the record at what
point Claimant first sought coverage from Defendant for this treatment and was
denied. He has yet to undergo the repairs to these teeth. It is unclear whether he
has suffered the additional damage Dr. Shlafstein feared would occur were
(c) Vision deficits (Dr. Danberg)
- Claimant first reported vision problems to Dr. Miller in March 2008. He began
treating with Dr. Danberg, a behavioral optometrist, in October 2008.
- Dr. Danberg administered several tests to measure Claimant’s visual and
perceptual deficiencies. Based on the results, she diagnosed convergence
insufficiency and ocular motor deficiency. Dr. Danberg causally related both
conditions to Claimant’s January 2008 work injury. I find her opinion on this
- Dr. Danberg treated Claimant’s visual deficiencies with Optometric Visual
Rehabilitation Therapy (OVRT). The purpose of this therapy was to address
some of the functional difficulties Claimant had encountered – skipping words
and transposing letters while reading, veering out of his lane while driving and
seeing double, for example. She also prescribed glasses with prism, which are
designed to correct double vision and convergence difficulties.
- Claimant underwent three OVRT sessions from February through April 2009.
Defendant paid for these sessions, but then refused to authorize any more. The
record does not indicate the basis for its denial. Similarly, Defendant paid for
Claimant’s first pair of glasses with prism, but when his prescription changed in
October 2009, it refused to cover the cost of a new pair.
The September 2010 Modified Form 15 Settlement Agreement
- In January 2009, Claimant retained Attorney John Mabie to represent him in his
claim for workers’ compensation benefits causally related to his January 2008
- On August 18, 2010 Claimant executed a Modified Form 15 Settlement
Agreement (the “Agreement”) that Attorney Mabie had negotiated on his behalf.
In pertinent part, the Agreement, which included handwritten language that
Attorney Mabie had inserted (shown in bold), stated:
This is an agreement in which the Claimant agrees to accept
$50,000.00, in full and final settlement of all claims for: All claims
occurring as a result of the work incident including but not limited
to right ankle, head/TBI1 and right elbow/biceps, however as noted
in the addendum attached the carrier will continue to furnish all
reasonable and related future medical treatment pursuant to the
Rules necessary for the treatment of his cognitive or other head
injury including neurological, psychological, ophthalmological,
TBI care and treatment; and prior care for his covered injuries
sustained as a result of the accident referred to above, including his
claim for past, present and future compensation for temporary total
disability, temporary partial disability, permanent partial disability
or permanent total disability, dependency benefits, medical,
hospital, surgical and nursing expenses, and vocational
- The Agreement incorporated by reference a typewritten Addendum. Paragraph 2
of the Addendum, which again included handwritten language that Attorney
Mabie had inserted (shown in bold), stated:
As part of this agreement the carrier agrees it will continue to
furnish all reasonable and related future medical treatment
pursuant to the Rules, necessary to [sic] for the treatment of his
cognitive or other head injury, including neurological,
1 The acronym “TBI” stands for “traumatic brain injury.”
psychological, ophthalmological, TBI care and treatment; and
to pay for care for his covered injuries prior to the time of
- The Agreement and Addendum thus purported to settle, on a full and final basis,
all claims for future indemnity and vocational rehabilitation benefits causally
related to any of the injuries Claimant suffered as a consequence of his January
- As for medical benefits, however, the settlement terms sought to differentiate
between Claimant’s “cognitive or other head injury” and all of his other injuries.
As to medical treatment for the former, which specifically included “neurological,
psychological, ophthalmological, TBI care and treatment,” Defendant would
continue to bear responsibility into the future. As to treatment for the latter, it
would no longer be responsible.
- After both parties had executed the settlement documents, on August 27, 2010
Attorney Mabie submitted them to the Department for its review, along with the
explanatory letter required by Workers’ Compensation Rule 17.0000.2 The letter
described the settlement terms as follows:
[T]he parties are desirous of resolving their dispute with respect to
indemnity benefits and certain medical benefits insofar as the
claimant’s right ankle and right elbow/bicep are concerned.
Medical benefits will continue to be paid by the carrier/employer
for head injuries and TBI care and treatment, including but not
limited to cognitive, neurological, psychological and
ophthalmological care. The head injuries are significant and will
require on-going assessment and care.
- The settlement letter, which was copied to Defendant’s attorney, but neither
reviewed beforehand nor signed by him,3 also referenced the settlement
documents themselves, stating:
The terms of the settlement agreement are fully set forth in the
settlement documents to be submitted to the Department under
separate cover by [Defendant], including the Settlement
Agreement (DOL Form 15) and Addendum to Modified Form 15
Settlement Agreement, both of which will have been duly executed
by the parties.
2 Effective August 1, 2015, the pertinent subsections of Rule 17.0000 have been re-codified as Rule
3 Claimant acknowledged in the Rule 17.0000 letter that Defendant’s attorney “has been away this week
and has not approved this letter, but he did draft the settlement documents and agreed they could be
submitted in his absence.”
- The Department approved the parties’ proposed settlement on September 2, 2010.
- Claimant credibly testified that he had ample opportunity to review the settlement
documents with Attorney Mabie, and to ask questions if he so chose, before he
signed them. He further testified that he believed the settlement meant that
Defendant would continue to be responsible for medical treatment “for everything
from the shoulders up.” I do not doubt that Claimant was sincere in this belief.
Claimant’s Course of Treatment from September 2010 Forward
(a) Traumatic brain injury, occipital neuralgia, headaches and neck pain (Dr.
- Claimant underwent ongoing treatment with Dr. Miller in 2010 for his traumatic
brain injury, occipital neuralgia, persistent headaches and neck pain. The latter
two conditions he continued to manage with oxycodone.
- As treatment for Claimant’s ongoing headaches and cervical symptoms, in
November 2010 Dr. Miller prescribed physical therapy, with both mechanical
traction and deep tissue mobilization. Claimant attended seven sessions during
November and December 2010.
- Defendant denied payment for the November and December 2010 physical
therapy sessions, which totaled $1,364.94, on the grounds that the terms of the
parties’ approved settlement agreement now excused it from doing so.
Specifically, it asserted that Claimant’s headaches were causally related to his
cervical injury, that the cervical injury was not subsumed under the category of
either “cognitive or other head injury” or “traumatic brain injury,” and that
therefore its ongoing responsibility had ended. Thereafter, Dr. Miller prescribed
additional sessions, but because Defendant continued to deny payment Claimant
was unable to continue them.
- Defendant also denied payment of several of Dr. Miller’s bills. Nine of the
unpaid bills Claimant submitted at hearing covered treatments rendered between
November 8, 2010 and April 5, 2011. The diagnosis noted on eight bills is
“cervicalgia;” the ninth bill, for services rendered on November 8, 2010, indicates
treatment for “brain injury.” From reviewing the medical records corresponding
to the eight “cervicalgia” bills, I find that the treatments rendered were in fact
related to Claimant’s cervical injury. Similarly, the medical record corresponding
to the November 8, 2010 bill reflected treatment for his brain injury.
- Defendant also denied payment for treatment rendered by Dr. Miller on March 15,
- From my review of the corresponding office note, I find that Dr. Miller’s
treatment on that date involved ongoing evaluation of both Claimant’s cervical
pain, for which he administered a cervical injection, and his traumatic brain
- In February 2014 Dr. Miller became increasingly concerned that Claimant was
not receiving any treatment for depression. In his opinion, Claimant’s
psychological condition is causally related to his traumatic brain injury. As noted
above, Finding of Fact No. 13 supra, until July 2012 Defendant had denied
responsibility for all but one counseling session. The record does not establish
any basis for its denial of psychological treatment. According to Dr. Miller, all of
Claimant’s physical injuries have been exacerbated as a consequence of his
inability to access mental health services. I find this analysis credible.
- Claimant continued to treat with Dr. Miller at least through June 2015. Currently
he continues to suffer from chronic neck pain, headaches, visual problems and
difficulty sleeping. Defendant having denied payment for additional physical
therapy, Dr. Miller’s treatment has consisted of medications: oxycodone for pain
management, zolpidem tartrate for sleep disturbance and paroxetine for
depression. Defendant has denied payment for all of these; again, however, the
record does not clearly establish any basis for its denials.
- Dr. Miller also recommended that Claimant obtain a TENS unit, a device that
sends electrical impulses along the skin surface and nerve strand to relieve pain.
Defendant refused payment for the device, on the grounds that its purpose was to
treat Claimant’s neck pain, for which it was no longer responsible under the terms
of the parties’ approved settlement. Claimant has since purchased one on his
own, and credibly testified that it has helped to alleviate his neck pain.
- Claimant also has paid for at least some of the medications Dr. Miller has
prescribed from his own funds. He introduced evidence of payments totaling
$719.99 for prescriptions of oxycodone, zolpidem tartrate and paroxetine that he
filled between January 2011 and January 2013.
- Claimant also paid $157.37 for a prescription for Catapres-TTS, a blood pressure
medication, in September 2010. The medical evidence does not address whether
his need for this medication is causally related in any way to his January 2008
(b) Dental work (Dr. Shlafstein)
- As noted above, Finding of Fact No. 17 supra, Claimant has yet to undergo the
remaining dental work that Dr. Shlafstein recommended in March 2008.
Defendant has refused payment on the grounds that under the terms of the parties’
approved settlement agreement, it is no longer covered.
(c) Visual deficits (Dr. Danberg)
- Claimant continues to suffer from various visual deficiencies, including difficulty
tracking and focusing and eye-teaming deficits. Functionally, he continues to
skip letters and read words out of sequence.
- In May 2012 Claimant returned to Dr. Danberg to assess whether he might still
benefit from additional OVRT treatment. Dr. Danberg credibly concluded that he
- As noted above, Finding of Fact No. 21 supra, since at least October 2009
Claimant has required new glasses with prism, as his prescription has changed.
Defendant has denied payment, for reasons that are unclear from the record.
Expert Medical Opinions
- The parties introduced conflicting expert medical evidence regarding the causal
relationship between the various treatments at issue in this claim and the injuries
for which Defendant remains responsible in accordance with the September 2010
(a) Dr. Miller
- As noted above, Finding of Fact No. 8 supra, Dr. Miller diagnosed Claimant with
a traumatic brain injury with occipital neuralgia, cervical pain from a whiplash
injury and vision problems, all causally related to his January 2008 work accident.
- Dr. Miller had difficulty separating out which of the medical treatments he
prescribed were referable specifically to Claimant’s head and/or traumatic brain
injury and their associated sequelae (neurological, psychological and/or
ophthalmological), and which were referable to his neck injury. I acknowledge
his credible opinion that all of Claimant’s head and neck symptoms were causally
related to the work injury, but standing alone, this opinion is not responsive to the
question whether, under the terms of the parties’ settlement, Defendant remains
responsible for specific treatments or not.
- Dr. Miller credibly concluded that Claimant’s trigger point injections, occipital
nerve blocks, craniosacral therapy, physical therapy with traction, TENS unit, and
vision treatment were all medically necessary and causally related to his work
injuries. Of these, he acknowledged that the trigger point injections, physical
therapy with traction and use of a TENS unit were treatments specifically
prescribed to treat Claimant’s cervical pain, and not his traumatic brain injury.
According to Dr. Miller, the occipital nerve blocks, craniosacral therapy and
vision treatments were causally related to the latter condition. I find this analysis
- As for prescription medications, as noted above, Finding of Fact No. 37 supra,
Dr. Miller prescribed oxycodone for Claimant’s persistent headaches and chronic
neck pain, zolpidem tartrate for his sleep disturbance and paroxetine for
depression. Although Claimant’s chronic neck pain very well may have
contributed to all three of these conditions, according to Dr. Miller they are
common sequelae of traumatic brain injury as well. I accept as credible his
opinion that all three medications are necessitated at least in part by Claimant’s
traumatic brain injury, therefore.
(b) Dr. Conway
- At Defendant’s request, in September 2013 Claimant underwent an independent
medical examination with Dr. Conway, a board certified neurologist. Dr. Conway
also reviewed Claimant’s relevant medical records.
- Dr. Conway diagnosed Claimant with a closed head injury, causally related to his
January 2008 accident, which has affected his cognition, impaired his memory
and processing ability, triggered concussive headaches and made him frustrated
and psychologically distressed. I find this analysis credible.
- As for which of Dr. Miller’s prescribed treatments were necessitated by
Claimant’s cervical injury as opposed to his cognitive and other head injuries, Dr.
Conway concluded that the physical therapy with traction that Claimant
underwent in November and December 2010, Finding of Fact No. 32 supra, was
directed at the former, while the craniosacral therapy he underwent in 2008 and
2009, Finding of Fact Nos. 12 and 13, supra, was focused on the latter. In this he
concurred with Dr. Miller, see Finding of Fact No. 48 supra.
- Dr. Conway disputed the necessity for occipital nerve blocks as causally related to
Claimant’s traumatic brain injury, however. Unlike Dr. Miller, in Dr. Conway’s
opinion Claimant did not suffer from occipital neuralgia. For that reason, after
the first, diagnostic, nerve block he concluded that further blocks were neither
causally related to the brain injury nor medically necessary.
- Consistent with Dr. Miller’s emphatic recommendation, Finding of Fact No. 36
supra, Dr. Conway also concluded that Claimant was in need of psychological
counseling causally related to his traumatic brain injury.
- Dr. Conway disagreed with Dr. Danberg regarding the causal relationship
between Claimant’s vision deficits and his work injuries. In his opinion, the
problems Claimant was experiencing were simply due to the natural aging
process, and not to any injury. Given Dr. Conway’s lack of expertise in this field,
I do not find his opinion on this issue convincing.
(c) Dr. Drukteinis
- At Defendant’s request, in July 2012 Claimant underwent an independent
psychiatric examination with Dr. Drukteinis, a board certified psychiatrist. Dr.
Drukteinis also reviewed Claimant’s relevant medical records.
- Dr. Drukteinis diagnosed Claimant with a residual traumatic brain injury, a
cognitive disorder and a pain disorder. He also found that Claimant exhibited
clear signs of a depressive disorder. In Dr. Drukteinis’ credible opinion, all of
these conditions are causally related to Claimant’s January 2008 work accident.
- As treatment for Claimant’s psychological disorders, Dr. Drukteinis
recommended both psychological counseling and anti-depressant medication.
According to his analysis, Claimant’s depression is an impediment to his
recovery. Therefore, the recommended treatments are medically necessary and
causally related. I find Dr. Drukteinis credible in all respects.
- Claimant introduced a mileage log documenting his travel for injury-related
medical treatment with Drs. Danberg, Drukteinis, Shlafstein and Miller on various
dates between November 2011 and January 2014. In all, he calculated a total of
660 round-trip miles traveled to and from his home in Connecticut. I find that
none of these miles were incurred solely to obtain treatment for his cervical
condition; to the contrary, all were necessitated at least in part by his dental
injuries and/or traumatic brain injury and psychological sequelae. Claimant also
calculated a total of 1,068 round-trip miles traveled to and from a pharmacy for
the purpose of obtaining prescription medications.
CONCLUSIONS OF LAW:
- 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).
The Scope of the Parties’ Approved Settlement Agreement
- Claimant here seeks to hold Defendant responsible for various medical treatments
that he contends remain open under the terms of the parties’ approved settlement.
To resolve this issue, it is necessary to determine the scope of that agreement as it
relates to treatment for the specific conditions from which he still suffers.
- As I already have found, Finding of Fact No. 26 supra, with respect to medical
benefits, the settlement agreement established two distinct categories of injuries.
For treatment of Claimant’s “cognitive or other head injury,” including
“neurological, psychological, ophthalmological and TBI,” by the terms of the
settlement agreement Defendant would remain liable into the future. For all other
injuries, the agreement relieved Defendant from future responsibility.
(a) Treatment Directed at Neck Pain and Headaches
- The most hotly contested area of disagreement between the parties concerns
Defendant’s post-settlement responsibility for treatments directed at Claimant’s
ongoing neck pain and headaches. As noted above, Finding of Fact No. 30 supra,
Claimant credibly testified as to his understanding that even after the settlement
Defendant would remain liable “for everything from the shoulders up.”
Defendant consistently has denied responsibility for any cervical-related
treatment, however, on the grounds that it is not subsumed under the category of
“other head injury” and therefore is no longer covered.
- The term “head” is defined as “the upper part of the human body . . . typically
separated from the rest of the body by a neck, and containing the brain, mouth and
sense organs.” Oxford Dictionaries,
www.oxforddictionaries.com/definition/english/head; see also, Merriam-Webster
Dictionary, www.merriam-webster.com/dictionary/head (defining “head” as “the
part of the body containing the brain, eyes, ears, nose and mouth”); Merriam-
Webster Medical Dictionary; www.merriam-webster.com/medical/head (defining
“head” as “the division of the human body that contains the brain, the eyes, the
ears, the nose and the mouth”).
- The term “neck” is defined as “the part of a person’s . . . body connecting the
head to the rest of the body.” Oxford Dictionaries,
www.oxforddictionaries.com/definition/english/neck; see also, Merriam-Webster
Dictionary, www.merriam-webster.com/dictionary/neck (defining “neck” as “the
part of the body between the head and the shoulders”); Merriam-Webster Medical
Dictionary, www.merriam-webster.com/medical/neck (defining “neck” as “the
usually narrowed part of an animal that connects the head with the body,
specifically, the cervical region of a vertebrate” (emphasis in original)).
- As these definitions establish, in both their common and their medical usages the
terms “head” and “neck” each connote separate and distinct body parts.
Notwithstanding their anatomical connection, the neck is no more a part of the
head than the leg is a part of the hip, or the hand a part of the forearm.
- Claimant argues that by referencing only his “head injury,” but not his “neck
injury” in either inclusionary or exclusionary language, the settlement agreement
created sufficient ambiguity as to negate any “meeting of the minds” between the
parties. Therefore, he asserts, the agreement must either be voided, or else
enforced as if the two terms were synonymous. See, e.g., Evarts v. Forte, 135 Vt.
306, 310 (1977) (real estate contract voided where property description was too
vague to establish parties’ mutual agreement as to what was being conveyed).
- I cannot accept this analysis. As the above definitions establish, there is no
ambiguity in the term “head” injury. Reasonable people would not disagree that
its plain meaning signifies something other than an injury to the “neck,” see
Isbrandtsen v. North Branch Corp., 150 Vt. 575, 578 (1988) (internal citations
- Claimant asks a legitimate question, however. If his neck injury, which
Defendant has never disputed is causally related to the January 2008 work
accident, does not qualify as a “head injury,” where in the settlement agreement
does it fit?
- Again, the agreement’s plain language provides the answer. It defines the general
scope of the injuries to be covered by the settlement as “including but not limited
to right ankle, head/TBI and right elbow/biceps,” and the subcategory of those for
which Defendant will be liable only for “prior care” as “his covered injuries
sustained as a result of the [January 2008] accident (emphasis supplied).” There
being no question but that the neck injury is causally related and compensable, it
thus fits under both the “including but not limited to” and the “covered injuries”
descriptors. Though admittedly less specific than the “cognitive or other head
injury” category descriptors, I cannot conclude that these phrases are themselves
ambiguous, in either meaning or application.
- I acknowledge the fact that, in describing the terms of the parties’ settlement in
his Rule 17.0000 letter to the Department, Claimant omitted any reference to his
cervical injury, either as one of the injuries for which medical benefits were to be
closed out, or as one of those for which medical benefits were to continue, see
Finding of Fact No. 27 supra. Claimant argues that the reason for this omission
was that it was “clear as day” that the parties’ intended for the “head” to include
the “neck.” See Claimant’s Findings of Fact and Memorandum of Law at p. 22.
- I disagree. Had the matter been as clear as Claimant asserts, Defendant would not
have begun denying coverage for treatment of his neck pain almost immediately
after the settlement was approved, a position it has maintained ever since, and one
which I already have concluded is consistent with the agreement’s plain language,
see Conclusion of Law No. 9 supra. And while the Rule 17.0000 letter did not
contain the same inclusive category descriptors (“including but not limited to”
and “covered injuries,” see Conclusion of Law No. 11 supra), it specifically
deferred to the settlement documents themselves for a more complete description
of the agreement’s terms, Finding of Fact No. 28 supra. Notably, furthermore,
Defendant neither reviewed the Rule 17.0000 letter before its submission nor
- I conclude that the Rule 17.0000 letter neither created nor resolved any ambiguity
in the settlement agreement’s terms. Instead, at best it signified a unilateral
mistake on Claimant’s part. A misunderstanding of this type does not preclude
contract rescission in all cases. Town of Lyndon v. Burnett’s Contracting Co.,
Inc., 138 Vt. 102, 107 (1980). However, “if the mistake has resulted solely from
the negligence or inattention of the party seeking relief, and the other party is
without fault, relief will not be granted absent unusual circumstances that would
make enforcement of the agreement manifestly unjust.” Id. at 108.
- Claimant’s mistake here occurred solely as a result of his “erroneous assumption,”
Burnett, supra at 108, that an injury to the “neck” was equivalent to an injury to
the “head.” The evidence does not suggest that Defendant was in any way to
blame for this misunderstanding. Nor does it suggest any unusual circumstances
sufficient to render enforcement of the parties’ agreement “manifestly unjust.”
The facts necessary to justify rescission do not exist.
- I do not dispute that the settlement agreement Claimant executed may not have
said what he wanted it to say. I cannot conclude that this was a consequence of
ambiguous or inadequately defined terms, however. Merely because the
agreement’s plain language led to an unfavorable outcome for him is not an
appropriate basis for finding ambiguity. Brault v. Welch, 2014 VT 44, ¶13. Nor
does his unilateral misunderstanding of the agreement’s scope provide sufficient
grounds for rescission. Absent a mutual mistake of fact, “one of the parties can
no more rescind the contract without the other’s express or implied assent, than he
alone could have made it.” Maglin v. Tschannerl¸174 Vt. 39, 45 (2002) (quoting
Enequist v. Bemis, 115 Vt. 209, 212 (1947). I am bound to enforce it according to
its terms, therefore.
- I thus conclude that the parties’ approved settlement agreement does not obligate
Defendant to provide ongoing medical coverage for Claimant’s neck injury.
- I turn now to the specific treatments at issue for that condition. The parties
presented conflicting expert medical opinions regarding the causal relationship
and/or medical necessity of at least some of these treatments, which is the
standard for determining an employer’s liability under the statute, 21 V.S.A.
- 640(a). See, e.g., MacAskill v. Kelly Services, Opinion No. 04-09WC (January
30, 2009). In such cases, the commissioner traditionally uses a five-part test to
determine which expert’s opinion is the most persuasive: (1) the nature of
treatment and the length of time there has been a patient-provider relationship; (2)
whether the expert examined all pertinent records; (3) the clarity, thoroughness
and objective support underlying the opinion; (4) the comprehensiveness of the
evaluation; and (5) the qualifications of the experts, including training and
experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17,
- As to the trigger point injections, physical therapy with traction and the use of a
TENS unit, both Dr. Miller, Claimant’s treating physician, and Dr. Conway,
Defendant’s medical expert, agreed that these treatments were necessitated by
Claimant’s neck injury, and not by his traumatic brain injury. Therefore, under
the terms of the parties’ approved settlement agreement, after September 2, 2010
Defendant was no longer obligated to pay for them.
- Similarly, I conclude that Defendant is not obligated to pay for the treatments
reflected on the eight “cervicalgia” bills referenced in Finding of Fact No. 34
supra. Dr. Miller’s corresponding office notes reflect treatment for Claimant’s
cervical injury on the dates covered by those bills, and therefore Defendant is not
responsible for them.
- I conclude that Defendant is responsible, however, for the ninth bill referenced in
Finding of Fact No. 34 supra, as the treatment Dr. Miller rendered on that date
(November 8, 2010) was directed at Claimant’s traumatic brain injury, not his
- I conclude that Defendant is also liable for the office evaluation portion of Dr.
Miller’s March 15, 2012 bill, as it concerned at least in part Claimant’s traumatic
brain injury. However, Defendant is not responsible for the charges incurred for
administering a cervical injection on that date, as Dr. Miller himself conceded that
such therapy was causally related to Claimant’s neck injury, not his traumatic
- The experts agreed as to the post-concussive nature of Claimant’s headaches, and
therefore I conclude that under the terms of the approved settlement agreement
reasonable treatment for that condition remains Defendant’s responsibility.
- Based on Dr. Miller’s credible testimony, and with no countervailing expert
testimony to negate it, I conclude that the medications Dr. Miller prescribed,
specifically oxycodone for pain, zolpidem tartrate for sleep disturbance and
paroxetine for depression, are all causally related at least in part to his cognitive
or other head injury rather than exclusively to his cervical condition. Under the
specific terms of the parties’ approved settlement agreement, these medications
are all still covered and Defendant is obligated to pay for them, therefore.
- I conclude that Defendant is responsible for medically necessary treatment of
Claimant’s occipital neuralgia, including the occipital nerve blocks that Dr. Miller
administered in 2008 and 2009. In reaching this conclusion, I accept Dr. Miller’s
diagnosis as more credible than Dr. Conway’s.
- Last, I conclude that Claimant has failed to sustain his burden of proving any
causal relationship between his need for Catapres-TTS, a blood pressure
medication, and any of the injuries or conditions for which Defendant is still
responsible. For that reason, he is not entitled to reimbursement.
(b) Treatment for Dental Injuries
- Claimant introduced credible medical evidence from his treating dentist, Dr.
Shlafstein, that as a direct result of the January 2008 work injury he now requires
full coverage crowns on tooth numbers 7, 8, 9, 10 and 30. Defendant failed to
offer any expert medical opinion to contradict the medical necessity of these
treatments. I therefore accept Dr. Shlafstein’s opinion on this issue as persuasive.
- As noted above, Conclusion of Law No. 5 supra, in both its common usage and
its medical usage, the term “head” includes the mouth, and therefore the teeth as
well. I thus conclude that the dental treatments at issue are causally related to
Claimant’s head injury. Under the terms of the parties’ approved settlement
agreement, Defendant remains responsible for them, therefore.
(c) Treatment for Visual Deficits
- The parties presented conflicting expert medical opinions regarding whether
ongoing treatment for Claimant’s visual deficits is causally related to his head
injury, as Dr. Danberg asserted, or is simply a consequence of the natural aging
process, as Dr. Conway concluded.
- Considering the factors listed in Conclusion of Law No. 18 supra, I conclude that
Dr. Danberg’s opinion is the most credible. As a behavioral optometrist, Dr.
Danberg has specialized training and expertise in this area, which Dr. Conway
does not share. Having tested and treated Claimant in the past, she is best
positioned to evaluate his current and future needs, and also to determine their
relationship back to his work injury. Her opinion thus merits greater weight than
- I therefore conclude that Dr. Danberg’s ongoing treatment, including but not
limited to resumed sessions of optometric visual rehabilitation therapy, is both
causally related to Claimant’s work injury and medically necessary. Under the
terms of the parties’ approved settlement agreement, which specifically included
“ophthalmological” treatment as one of the enumerated medical services
associated with Claimant’s head injury, I conclude that Defendant remains
obligated to pay for it. Similarly, I conclude that Defendant is responsible for
providing Claimant with replacement glasses with prism, in order to
accommodate periodic changes in his prescription.
(d) Psychological Treatment
- Defendant proffered no explanation to account for its continued denial of
coverage for Claimant’s antidepressant medications and other psychological
treatment. Its own medical expert, Dr. Drukteinis, confirmed Claimant’s pressing
need for treatment and its causal relationship to the January 2008 work accident.
Psychological treatment was another of the specifically enumerated medical
services associated with Claimant’s head injury for which Defendant remains
responsible under the terms of the approved settlement agreement, furthermore. I
conclude that Defendant is obligated to pay for both mental health services and
- As a final matter, Claimant seeks reimbursement for 660 miles traveled to and
from medical appointments necessitated by his work injuries, and 1,068 miles
traveled to and from a pharmacy for the purpose of obtaining prescription
- According to Workers’ Compensation Rule 12.2100,4 an injured worker who is
“required to travel for treatment, or to attend an employer’s independent medical
examination,” is entitled to reimbursement for mileage “beyond the distance
normally traveled to the workplace.” The purpose of the rule is to make the
worker whole, by providing compensation for expenses that he or she would not
have incurred but for the work injury. At the same time, the rule is phrased so as
to deny reimbursement for regular commuting expenses that presumably the
worker would have had to bear even had there been no injury. Fosher v. FAHC,
Opinion No. 11-11WC (May 6, 2011).
- Claimant here failed to introduce any evidence from which I might calculate his
regular commute distance to and from work while he was in Vermont engaging in
his ambassador duties for Defendant. On that basis alone, it is impossible to
determine the amount due him in mileage reimbursement.
- The language of Rule 12.2100 has never been interpreted to cover travel to and
from a pharmacy. Dain v. AIHRS, Opinion No. 85-95WC (November 17, 1995).
Presumably, most injured workers have access to a local pharmacy that is at least
within their commuting distance to and from work, and if not, mail order likely
presents a viable alternative, see Workers’ Compensation Rule 26.3000.5 I thus
conclude that Claimant is not entitled to reimbursement for the 1,068 miles
claimed for that purpose.
- I conclude that Claimant has failed to sustain his burden of proving any
entitlement to mileage reimbursement in the amounts claimed.
4 Effective August 1, 2015 Rule 12.2100 has been re-codified as Rule 4.1300.
5 Effective August 1, 2015 Rule 26.3000 has been re-codified as Rule 3.2510.
- As Claimant has only partially prevailed, he is entitled to an award of only those
costs that relate directly to the claims he successfully litigated. Hatin v. Our Lady
of Providence, Opinion No. 21S-03 (October 22, 2003), citing Brown v. Whiting,
Opinion No. 7-97WC (June 13, 1997). As for attorney fees, in cases where a
claimant has only partially prevailed, the Commissioner typically exercises her
discretion to award fees commensurate with the extent of the claimant’s success.
Subject to these limitations, Claimant shall have 30 days from the date of this
opinion to submit evidence of his allowable costs and attorney fees.
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for
medical benefits covering the following medical services and supplies is hereby
- Physical therapy services rendered on November 19 and 22, 2010 and
December 1, 2, 6, 8, and 13, 2010;
- Evaluation and treatment of Claimant’s cervical condition by Dr. Miller as
reflected on the eight “cervicalgia” bills described in Finding of Fact No.
- Trigger point and other cervical injections, including those reflected on
Dr. Miller’s March 15, 2012 billing, as described in Finding of Fact No.
- TENS unit and associated supplies;
- Catapres-TTS or other prescription blood pressure medications; and
- Mileage reimbursement.
Defendant is hereby ORDERED to pay medical benefits covering the following medical
services and supplies, in accordance with 21 V.S.A. §640(a):
- Evaluation and treatment of Claimant’s cognitive or other head injury,
occipital neuralgia and concussive headaches, including evaluation and
treatment rendered by Dr. Miller on November 8, 2010 and March 15,
2012, as described in Finding of Fact Nos. 34 and 35 supra, and occipital
- Reimbursement to Claimant for prescription medication costs (oxycodone,
zolpidem tartrate and paroxetine) totaling $719.99, with interest from the
date of purchase in accordance with 21 V.S.A. §664;
- Prescription medications, including oxycodone, zolpidem tartrate and
paroxetine, or other medications prescribed for pain control, sleep
disturbance and/or depression, all as causally related to Claimant’s
cognitive or other head injury;
- Ongoing treatment for visual deficits, including specifically optometric
visual rehabilitation therapy and glasses with prism;
- Full coverage crowns and other dental treatment necessary to repair
accident-related damage to tooth numbers 7, 8, 9, 10 and 30;
- Mental health counseling and anti-depressant medications, all as causally
related to Claimant’s cognitive or other head injury; and
- Costs and attorney fees in amounts to be determined, in accordance with
21 V.S.A. §678.
DATED at Montpelier, Vermont this _____ day of ______________, 2016.
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.