Briggs v. Maytag Homestyle Repair, Inc. (Oct. 5, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Daniel Briggs File #: G-11213
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
Maytag Homestyle Repair, Commissioner
Inc.
Opinion #: 57-96WC
Hearing held at Montpelier, Vermont, on August 5, 1996.
Record closed on August 28, 1996.
APPEARANCES
Sam W. Mason, Esq., for the claimant
Keith J. Kasper, Esq., for the employer
ISSUE
Whether a proposed rib resection is reasonable medical treatment in accordance with the Workers' Compensation Act.
THE CLAIM
1. Medical and hospital benefits pursuant to 21 V.S.A. §640.
2. Attorneys' fees and costs pursuant to 21 V.S.A. §678(a).
STIPULATIONS
1. On December 11, 1993, Claimant was an employee within the meaning of the Vermont Workers' Compensation Act (hereinafter "Act").
2. On December 11, 1993, Maytag Homestyle Repair, Inc., was an employer within the meaning of the Act.
3. On December 11, 1993, National Grange was the workers' compensation insurance carrier for the employer within the meaning of the Act.
4. On December 11, 1993, Claimant had, and currently has, four dependents.
5. On December 11, 1993, Claimant had an average weekly wage of $189.38, resulting in a current and final compensation rate of $189.38.
6. The parties agree to the submission of the joint medical records and deposition transcript of Dr. Frost.
7. The sole issue for resolution in this proceeding is the proposed third surgery by Dr. Frost and the compensability of that proposed surgery by National Grange Mutual Insurance Company.
EXHIBITS
1. Joint Exhibit 1 Medical records binder
2. Claimant's Exhibit A Deposition of Daniel Briggs
3. Claimant's Exhibit B Deposition of Oakley M. Frost, M.D.
4. Defendant's Exhibit I Curriculum Vitae of Michael J. Mufson, M.D.
5. Defendant's Exhibit II Deposition of Nathaniel P. Katz, M.D.
FINDINGS OF FACT
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 in this matter.
2. The claimant injured himself on December 11, 1993, when he walked abruptly into the open door of a clothes dryer while carrying a load of sheets estimated at 77 pounds. He treated with Dr. Oakley Frost, with whom he had previously treated for another injury arising out of striking a dryer door. Dr. Frost found on physical examination that the claimant had tenderness associated with the 10th and 12th ribs on the right side. Subsequent tests by injecting the sore areas seemed to confirm that the problem arose from the 10th CT-CV joint, as the pain in the area of the 12th rib seemed to resolve with the injection of the 10th rib.
3. The claimant was noted to have difficulty moving his neck or raising his right arm above shoulder height. He also had persistent bronchitis from his smoking habit, which Dr. Frost wished to see resolved before he attempted a surgical repair of the affected rib. The proposed surgery was a resection of the head and the neck of the 10th rib for costovertebral, costo-transverse joint syndrome with radiculitis and with thoracic outlet problems. The surgery was performed on April 20, 1994.
4. After the surgery, the claimant's pain complaints were resolved for a few weeks, and he was able to move his neck freely and lift his right arm above his shoulder. Then the pain began to return, although the claimant continued to have full range of motion in his neck and shoulder. The returning pain was in the area of the 12th CT-CV joint, which had originally been symptomatic. An injection of the 12th joint again resolved the pain, and Dr. Frost determined that it would be appropriate to resect the 12th rib as he had done the 10th.
5. On June 19, 1994, the claimant was admitted to the Southwestern Vermont Medical Center through the emergency room after suffering a recurrence of his symptoms while swimming. The described mechanism of the incident was that he hyperextended his back while trying to return to the surface after diving, and immediately felt an onset of pain in his typical distribution. Specifically he felt pain in his right shoulder and right upper back radiating around underneath his armpit to the right anterior chest, and in his lower back, in the region of the 12th rib radiating around his flank to the right lower quadrant. As a result of this incident, Dr. Frost performed a resection of the 12th rib about 2 centimeters from the costotransverse joint.
6. Once again the claimant experienced relief from his symptoms after the surgery. However, again it was short-lived and he again sought assistance for his pain. In September of 1994, Dr. Frost determined that lifting the remaining segment of the 12th rib away from the intercostal nerve completely alleviated the claimant's pain. This observation has been confirmed by a number of other physicians, including Dr. Richard Fabricius, an orthopedic surgeon, and Dr. Robert Hemm, an internist. All three doctors noted an immediate cessation of visible muscle spasms in the claimant's back upon performing this maneuver. Dr. Frost has told the claimant that removal of the remainder of the 12th rib is appropriate treatment for his remaining problems.
7. Dr. Frost testified that the proposed surgery is part of his treatment for a condition he calls costovertebral joint syndrome, caused by the rubbing of the surgical end of the 12th rib against the intercostal nerve, which has probably caused the formation of a neuroma. As a result the claimant is suffering from what Dr. Frost identifies as intercostal neuralgia. There is no guaranty that the surgery will be totally effective, as there is a possibility that the neuroma may be difficult to dissect. If this occurs, it may be necessary to kill the nerve completely to resolve the claimant's pain. Dr. Frost has performed this surgery twice before, once resulting in total relief from pain, and once resulting in 80% relief from pain. Dr. Frost has testified that the surgery he performs has not been reported in a peer review journal, and is based on an article from a 1974 edition of the Journal of Urology, which is not exactly on point. Dr. Frost agrees that the surgery is experimental, but states that he has had good results in other attempts at this procedure, and that he has presented his results at meetings. He also confirmed that it was likely that the claimant would need follow-up care in the form of pain management treatment and training even after the surgery.
8. Dr. Frost was aware that a number of doctors had determined that the claimant had positive Waddell's signs, tests to determine whether a patient is being honest about his symptoms. Dr. Frost indicated that he did not believe that the claimant was magnifying his symptoms, and moreover that the claimant was not sophisticated enough in neurology to be able to fabricate appropriate symptoms. It was his belief that the claimant was experiencing
frustration from a long term pain syndrome, and that it was possibly imprinted pain, like a phantom pain, that bothered the claimant and would hopefully be resolved by the proposed surgery.
9. The claimant has been seen by a number of doctors at the request of the insurer. Orthopedic and neurological examinations failed to produce any objective evidence of a disorder, although it is not clear whether any studies specifically targeted the intercostal nerve. Several doctors commented on the possibility of a psychological component to the claimant's condition. Doctors for the insurer recommended that the claimant enter a pain management program, a recommendation supported by some of the claimant's treating physicians, including Dr. Frost.
10. The claimant was finally sent to Boston to meet with Dr. Michael Mufson, a diplomate of the American Board of Psychiatry and Neurology, and then to Dr. Nathaniel P. Katz, board certified in pain management, neurology and psychiatry and neurology, at the Brigham and Women's Hospital. Dr. Mufson's testing and two interviews with the claimant led him to conclude that the claimant was suffering from a somatoform pain disorder, and that there was no physiological basis for the pain. He based this opinion on the fact that the claimant's neurophysiological testing was negative, and that the MRIs were normal. He relied on Dr. Katz's report with regard to physiological problems. He defined a somatoform pain disorder as a condition in which an individual has chronic pain without any medical basis for pain, and otherwise meets three specific criteria: 1) that the patient focuses on his pain to the exclusion of psychological stressors; 2) that there is not a neurological basis for the pain, and 3) that treatment of one set of pains will result in pains recurring but at another site in the body. Dr. Mufson opined that the claimant met these criteria. He noted as significant not only the psychological testing, which supported the diagnosis, but also the claimant's positive Waddell's signs and consistent history of symptom magnification.
11. Based on his review of the extensive medical records and his evaluation of the claimant, Dr. Mufson opined that the surgery proposed by Dr. Frost was neither reasonable nor necessary. In fact, he offered the probability that the proposed surgery would have negative physiological and psychological consequences. In his opinion, the surgery would initially appear to help, but that the pains would then migrate to another area of the claimant's body, and that he would then become angry at his caregivers. The need for psychological care would increase after any surgery.
12. Dr. Katz confirmed in all material respects Dr. Mufson's opinion. Dr. Katz saw the claimant on a number of occasions, and determined that the claimant consistently had positive results on Waddell's maneuvers, indicating a psychological rather than physiological basis for the pain complaints. He also noted the claimant's reluctance to undergo certain diagnostic tests, and his unwillingness to participate in certain treatment modalities. Based on his examinations and the results of those diagnostic tests that the claimant underwent, as well as the evaluation by Dr. Mufson, Dr. Katz indicated that the proposed surgery by Dr. Frost would amount to medical malpractice. Dr. Katz was vehement in his protestations against the proposed surgery, citing to fifty years of experience in the medical community in treating individuals with chronic pain with the result of determining that surgery would not be
helpful, and was potentially quite harmful.
13. Dr. Katz also noted the lack of any published support for the proposed treatment, indicating that "...the importance of publishing any treatment theories are that many theories sound great but may not work out in practice, and so it's important that any theory that ever makes it to the point of being applied to a patient where people actually get that proposed treatment done, the outcomes, the report is so that the medical community can look at it and see if it makes any sense, see if the reports have been properly reported and digest it, criticize it and then try to reproduce it by doing the same type of treatment to see if it really stands the test of time and experience." He indicated that while he was aware of and familiar with the treatments proposed by Dr. Frost, that is, the rib resection and the injection therapy, he was not aware of any evidence that such treatments were helpful to a patient with somatoform disorder, or helpful for anyone. He concluded that "[t]here certainly may be times where every physician has the prerogative of meeting an individual patient and putting together a treatment plan he thinks is appropriate based on his assessment of the patient regardless of what is reported in the literature. However you use procedures that make sense and doing surgery on a patient with somatoform pain disorder makes no sense." He found the claims that lifting of the claimant's rib resolved the pain to be unlikely, stating that "Mr. Briggs is complaining of pain essentially throughout his body and certainly his entire lifestyle and to describe his pain in very bizarre terms that extends way beyond where you could possibly have pain coming from something pressing on your intercostal nerve." He proposed that the lifting of the rib caused a placebo effect, and concluded that this was a very clear cut case.
14. The claimant has indicated a willingness to go into a pain management clinic in the event that the rib resection fails to resolve his problem. He is not willing to go into such a program without the surgery, and a number of physicians have noted the claimant's lack of motivation to follow recommended treatments.
15. The claimant has produced evidence of his fee agreement with his attorney for a contingency fee in the amount of 20% of the amount recovered or $3,000.00, whichever is less. This is acceptable. He has also produced evidence of expenses in the amount of $197.00, which are also reasonable.
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 lay-person 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. Based on the evidence before me, there is no question that the claimant has a serious psychological overlay to his work injury. However, that said, it is not sufficient in and of itself to bar recovery for the proposed surgery. Neither of the testifying defense doctors was able to rule out that intercostal neuralgia is actually part of the claimant's constellation of problems. Although a number of doctors have noted negative EMGs, I have no evidence to suggest that the intercostal nerve in question was ever actually tested, or indeed testable, by that method. While it may be true that the claimant is suffering from a conversion reaction, that does not exclude a possible physical cause for at least one of his sets of symptoms, particularly when there is a logical, if unconventional, explanation for
those symptoms.
4. A treatment does not become unreasonable simply because it will not resolve all of the claimant's complaints. Here there is evidence from Dr. Frost and Dr. Fabricius that the operation will physically help the claimant and from Dr. Mufson and Dr. Katz that it will psychologically harm the claimant. Both sets of doctors have credentials to support their respective positions, and unfortunately both may well be correct in their opinions (excepting of course the reference to malpractice).
5. In this case, deference must be given to the opinion of the treating physician, particularly where the proposed surgery is, in effect, an effort to repair a flaw caused by a prior compensable (and compensated) surgery. However, in light of the strong opinions of Dr. Katz and Dr. Mufson, any further surgery or treatment, other than rigorous pain management, should be closely scrutinized for appropriateness prior to approval. Post surgical pain management is not only approved, it is highly recommended.
6. The claimant having prevailed is entitled to an award of attorney's fees in the amount of 20% of the sum awarded for the third rib resection not to exceed $3,000.00, and costs in the amount of $197.00.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, it is hereby ordered that Liberty Mutual Insurance Company, or in the event of its default Liberty Mutual Insurance Company:
1. Provide the claimant with medical benefits including the proposed third surgical rib resection and pain management care; and
2. Pay attorney's fees in the amount of 20% of the cost of the surgical procedure, not to exceed $3,000.00, and costs in the amount of $197.00.
DATED at Montpelier, Vermont this 5th day of October 1996.
________________________________
Mary S. Hooper
Commissioner