Smith v. Whetstone Log Homes (Nov. 25, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Ian Smith File # S-05158
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
Whetstone Log Homes Commissioner
Opinion #: 70-96WC
Hearing held in Montpelier, Vermont, on October 10 and 11, 1996.
Record closed on October 31, 1996.
APPEARANCES
Michael J. Hertz, Esq., for the claimant
Sandra A. Strempel, Esq. for Whetstone Log Homes
Keith J. Kasper, Esq., for the State of Vermont
ISSUE
1. Whether the claimant's chiropractic care with Dr. Woodcock is reasonable and necessary.
2. Whether the claimant's chiropractic care with Dr. Woodcock is as a result of an aggravation or a recurrence of his work injury of August 23, 1980.
THE CLAIM
1. Medical and hospital benefits pursuant to 21 V.S.A. §640.
2. Attorney's fees and costs pursuant to 21 V.S.A. §678(a).
STIPULATIONS
1. The claimant suffered a compensable injury on August 23, 1980, while in the employ of Whetstone Log Homes.
2. The insurer paid permanency benefits for that injury in the normal course of business.
3. The insurer filed a Form 27, Notice of Intent to Terminate Benefits, on July 24, 1995.
4. The insurer continued to pay medical benefits generally through June 8, 1996.
EXHIBITS
1. Joint Exhibit 1: Medical records notebook
2. Claimant's Exhibit A:Job description
3. Claimant's Exhibit B:Curriculum Vitae of Marcy Jones, D.C.
4. State Exhibit I: First Report of Injury, J-9233
5. State Exhibit II: First Report of Injury, J-13141
6. Defendant's Exhibit a:Chiropractic guidelines
FINDINGS OF FACTS
1. The above stipulations are accepted as true and the exhibits are admitted into evidence. Notice is taken of all forms filed with the Department of Labor and Industry. Notice is taken of the letter of Susan LaFlamme, Workers' Compensation Specialist, dated October 15, 1992.
2. The claimant was originally injured in 1980 when he was working with a contractor, constructing log homes from kits. In hindsight, he believes his injury was a cumulative trauma injury, although at the time he felt it was an acute injury which occurred when he was unloading logs from a truck. His work was primarily carpentry work, including shaping the logs for placement in the home. He found that certain motions were more painful than others, and finally sought professional attention for his problem with Dr. Donald C. Woodcock, a chiropractor.
3. Dr. Woodcock diagnosed the claimant as suffering from a moderate sprain to the anterior aspect of the capsular ligament and pectoral muscle insertion of the right shoulder, as well as partial luxations of the dorsal (thoracic) vertebrae at T-3, T-4, and T-5. He treated the claimant with a variety of modalities, including manipulation, ultrasound, massage, ice and acupressure. The claimant has treated regularly with Dr. Woodcock since the injury, with the exception of a brief period of time when he was out of the area in 1984. Since 1989, the claimant's treatment with Dr. Woodcock has been on an as-needed basis, with visits generally 4 to 6 weeks apart, although sometimes he treats only days apart, and once went over 11 weeks without treatment.
4. The claimant's pain complaints initially involved his neck, upper back in the area between his shoulder blades, right shoulder and right arm, although his right shoulder and arm problems appear to have resolved. He continues to experience difficulty with his right trapezius muscle on the top of his shoulder. The claimant's dominant arm is his right arm. The claimant does stretching exercises on a daily basis as prescribed by Dr. Woodcock, and takes over-the-counter medication to relieve the pain. He also performs acupressure on designated points on his body, again as instructed by Dr. Woodcock.
5. The claimant currently works as a counselor for the Department of Employment and Training, where he has worked since 1987. The claimant's work station has been ergonomically evaluated and set up to limit the stresses placed on his back and his right shoulder. The claimant generally writes with a clipboard on his lap, as he did at the hearing, thereby limiting the strain on his right shoulder and trapezius muscle. When he works on his computer, he places the keyboard on his lap, again to reduce strain to the shoulder. He is able to alter his position, standing or sitting as needed to accommodate any limitations he might experience. He also uses a lumbar support to establish proper posture when seated at his work station.
6. The claimant's condition since he reached an end medical result has been fairly consistent, although there have been fluctuations within the range that he considers normal. After a treatment that is successful in reducing his pain, he will not return to Dr. Woodcock until the pain returns to a significantly higher level. After a treatment, the pain will gradually increase over a period of time, sometimes as short as a few weeks, and sometimes stretching to over a month. In general, since he reached an end medical result, the claimant believes his condition is much less severe than it was when he was still receiving curative treatment. The claimant acknowledges that his current treatments are palliative.
7. The claimant also testified that he has had occasional "aggravations" of his work injury that led to the necessity for increased care with Dr.Woodcock. On each of these occasions, the claimant's condition returned to his previous baseline established at the time that he reached an end medical result. On at least one occasion in late 1991 and early 1992, the carrier was relieved from responsibility for paying for treatments caused by one of these incidents. There is no evidence that any of these incidents in any way changed the claimant's underlying condition. These incidents include those times when the claimant, in his current job, made complaints that led to the opening of workers' compensation claims. In each case, the claimant had an injury that was amenable to treatment, was treated, and ultimately resolved, returning the claimant to the same condition in which he found himself when he reached an end medical result from his 1980 injury.
8. Dr. Woodcock testified in this case. Dr. Woodcock had never testified in a formal hearing or court before, and his lack of experience was noticeable. Nonetheless, the information that can be gleaned from his testimony is that it is his opinion that the claimant suffered a permanent injury to his thoracic and cervical spine, resulting in recurrent inflammation and partial luxations, resulting in neuralgia. Dr. Woodcock found that his treatments resulted in a lessening of both objective and subjective evidence of dysfunction, although he did not always note this lessening in his records. He testified that his treatment was successful in lessening the claimant's symptoms and was reasonable and necessary to maintain the claimant's functioning in his work place.
9. In 1989, the insurer asked Dr. Elliot Krakow to perform a records review. Dr. Krakow, a chiropractor, reviewed the records and also spoke with Dr. Woodcock. Based on his investigation, he found that the claimant had suffered a permanent impairment that resulted in an instability in his spine. He also determined that it was likely that the claimant would continue to need chiropractic care on an as needed basis.
10. In 1993, the insurer asked Dr. Dorothy Ford to perform a medical examination of the claimant to determine the necessity for ongoing treatment. Dr. Ford attributed the claimant's symptoms to his 1980 injury, and found that the chiropractic treatment the claimant was receiving was reasonable. She based this finding on the fact that it was effective in resolving the claimant's complaints and "no more expensive than a visit to a physical therapist."
11. In 1995, the insurer asked Dr. Richard Coopersmith, a chiropractor, to perform a records review of the claimant's treatment. Dr. Coopersmith reviewed 6 months of Dr. Woodcock's notes, and spoke briefly with the claimant. Based on that limited information, he opined that the treatment was not curative, only palliative, and that it is not possible to make a determination that all of the claimant's complaints were related to the injury of 1980. Dr. Coopersmith later received additional records, although it is not clear that he received all of the records introduced in this case. Dr. Coopersmith testified that there was no objective evidence that the claimant received any benefit from the treatment by Dr. Woodcock. He indicated that the claimant suffered from a soft tissue injury which would be expected to heal within six months to a year. Dr. Coopersmith said that treatment that is not curative is not reasonable or necessary. He admitted that he did not know what the claimant's symptoms were or the time frame for the temporary relief the claimant alleged he received from the treatments. He also testified, remarkably, that it would not be reasonable to seek treatment for pain and discomfort.
12. In 1996, the insurer asked Dr. Kuhrt Wieneke, an orthopedic surgeon, to perform a medical examination of the claimant. Dr. Wieneke took x-rays of the claimant's back and ascertained that the claimant suffered from a chronic 10ø malalignment of the spine at the T2-3 level, which he attributed to the injury of 1980. Dr. Wieneke testified that there was no evidence on the x-rays of the history of subluxations testified to by Dr. Woodcock, and that he would expect to find such evidence if there had been such a history. He also testified that the claimant was pain free at the time of the examination, a claim that the claimant denies.
13. Dr. Wieneke also testified that long term chiropractic manipulation is "known" to stretch the ligaments in the back, leading to instability, and that the way to resolve this would be to stop the manipulations for a period of time to allow the ligaments to tighten up. When asked for documentation for this claim, Dr. Wieneke admitted that he was not referring to a particular study when he made this claim. He also cited to two reports, in 1977 and 1988, that discussed the danger of physician dependence in cases of very long term manipulative care.
14. Dr. Wieneke conceded that the claimant told him that the chiropractic treatments were helpful in allowing him to continue to function at his job, and that his symptoms gradually worsened between treatments. He also indicated that he saw the claimant about two weeks after his previous chiropractic treatment. He concluded that the treatments were palliative and not curative, and agreed that the treatments did supply relief of symptoms.
He also agreed that it was not unreasonable to seek care to relieve pain and discomfort.
15. The claimant was seen by Dr. Marcy Jones, a chiropractor, at the suggestion of his attorney to evaluate the reasonableness and necessity of the claimant's treatments with Dr. Woodcock. Dr. Jones testified that he found objective evidence of pain upon palpation of the claimant's neck and shoulder, more on the right. He also was able to reproduce the claimant's pain by placing the claimant in certain postures, which confirmed the anatomic nature of the pain. He testified that when a patient reaches a state of maximum medical improvement, and has some permanency as a result of the injury, it means that the patient may have symptoms for the rest of his life. Thereafter, if the symptoms worsen from the level of maximum medical improvement, treatment may be able to return the patient to the maximum medical improvement level. He testified that a review of Dr. Woodcock's records established that the claimant's treatment was occurrence based, and not regularly scheduled. This kind of treatment falls within generally accepted chiropractic standards, and comes under the heading of supportive care, which is care necessitated by the deterioration of the patient's condition.
16. Dr. Jones was aware of Dr. Wieneke's allegation that there existed evidence that long term chiropractic manipulation could lead to a stretching of the ligaments of the spine. Dr. Jones was unaware of any study establishing this claim. He called the research division of the American Chiropractic Association for assistance in this regard, and the ACA failed, after a comprehensive literature search in medical and chiropractic journals, to find any study supporting Dr. Wieneke's allegation.
17. Dr. Jones referred in his testimony to Guidelines for Chiropractic Quality Assurance and Practice Parameters, alternately referred to as the Mercy Guidelines. These guidelines were established by the chiropractic community to bring some uniformity to the practices of chiropractors throughout the country and to curb abuses in scheduled chiropractic care. Dr. Jones referred to a particular section of the Guidelines, as did Dr. Wieneke, although they were different sections. Dr. Coopersmith referred to the Guidelines without reciting a particular section. One page from the Guidelines was admitted into evidence by the defendant Whetstone. It is virtually impossible for a trier of fact to weigh the competing claims regarding the Guidelines without a copy of the full document to assist in the comparison. A single page from a multiple chaptered book is in essence worthless, as its context is neither established nor explained.
18. The claimant has presented evidence of his fee agreement with his attorney for representation on an hourly basis at $100.00 an hour. Subject to the limitation of $35.00 an hour as established in Rule 10 of the Workers' Compensation and Occupational Disease Rules, this agreement is acceptable. The claimant has established that his attorney has expended 37.2 hours on his behalf in presenting this case to the Department. The claimant has also presented evidence of costs in the amount of $1,576.00. This amount is acceptable.
CONCLUSIONS
1. In workers' compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, Morse Co., 123 Vt. 161 (1963). The claimant must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984).
2. Where the causal connection between an accident and an injury is obscure, and a layperson would have no well grounded opinion as to causation, expert medical testimony is necessary. Lapan v. Berno's Inc., 137 Vt. 393 (1979). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
3. Once it has been established that a claimant is entitled to benefits under the Workers' Compensation Act, the burden shifts to the employer to establish the propriety of either ceasing or denying further compensation. Merrill v. University of Vermont, 133 Vt. 101 (1974). The burden is therefore on Whetstone to establish either that it is entitled to terminate benefits in this case, or that another employer is required to pay in Whetstone's stead.
4. In answer to the first issue addressed, whether the treatment of Dr. Woodcock is reasonable and necessary, the answer is obviously affirmative. Through a long line of cases, this Department has established the principle that palliative care is compensable so long as it is as a result of the work injury and not some intervening cause. See, e.g., Cardinal v. Georgia-Pacific, Opinion No. 13-90WC, and other cases through Briggs v. J.C. Penney, Opinion No. 56-95WC, and Forrest v. Rockingham School District, Opinion No. 30-96WC. Dr. Wieneke conceded that the claimant felt better after his chiropractic treatments, and Dr. Coopersmith's objection that the care was "only" palliative shows that he, too, found that the care alleviated the claimant's symptoms. Dr. Wieneke moreover found a physical explanation for the claimant's pain that he correlated with the original 1980 injury. The standard has been met that the care is compensable.
5. Whetstone also alleges that the claimant suffered an aggravation of his underlying injury by his work at the Department of Employment and Training. The Commissioner has consistently held that it is not enough for an employer to establish that another employer might be responsible for the claimant's injury. That employer must present affirmative evidence to support its claim, including the expert testimony required under the Burton decision, supra. See, e.g., Leahy v. Central Vermont Hospital, Opinion No. 6-96WC, and the cases cited therein. While the claimant admitted to intervening injuries, there is no evidence that any of those injuries independently or together increased the claimant's underlying condition. In fact, Dr. Wieneke's testimony, produced by the defendant, established that the claimant was suffering only from the 1980 work injury and nothing else. Therefore, the answer to the second issue is that there has not been an aggravation of the claimant's 1980 work injury, and Whetstone Log Homes remains on the risk.
6. The claimant having prevailed is entitled as a matter of law to an award of costs and as a matter of discretion to an award of attorney's fees. Costs are awarded in the amount of $1,576.00, and fees in the amount of $1,302.00.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, it is hereby ORDERED that:
1. Fireman's Fund Insurance Company, or in the event of its default Whetstone Log Homes, pay chiropractic benefits for the claimant since June 8, 1996, and ongoing;
2. Fireman's Fund Insurance Company, or in the event of its default Whetstone Log Homes, pay attorney's fees in the amount of $1,302.00, and costs in the amount of $1,576.00.
DATED at Montpelier, Vermont this 25th day of November 1996.
____________________________
Mary S. Hooper
Commissioner