Carey v. Northeast Tool Division (Oct. 5, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Rebecca Carey File #: F-10175
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
Northeast Tool Division Commissioner
Opinion #: 58-96WC
Record closed on August 21, 1996.
APPEARANCES
Ronald A. Fox, Esq., for the claimant
Andrew C. Boxer, Esq., for the employer
ISSUE
What degree of permanency, if any, has the claimant suffered as a result of her work
related injury of November 16, 1992?
THE CLAIM
1. Permanent partial disability compensation pursuant to 21 V.S.A. §648 for an 8.5%
impairment of the spine.
2. Medical and hospital benefits pursuant to 21 V.S.A. §640.
3. Attorneys' fees and costs pursuant to 21 V.S.A. §678(a).
EXHIBIT
1. Joint Exhibit 1 Medical records notebook
FINDINGS OF FACT
1. The exhibit is admitted into evidence. Notice is taken of all forms filed with the
Department in this matter.
2. On November 16, 1992, the claimant injured her back while lifting a 35 pound pan while
in the employ of Northeast Tool Division. A First Report of Injury was duly filed with the
Department, and the claimant received medical treatment for her injury.
3. In this case, treatment consisted primarily of physical therapy through Daniel Wyand,
P.T. & Associates in St. Johnsbury, although the claimant also treated with a nurse
practitioner and was referred to the Dartmouth-Hitchcock Clinic for assessment with
Dr. William Abdu in July of 1993. Both the nurse practitioner and Dr. Abdu made findings
consistent with restricted motion due to pain, as well as nonverifiable radicular complaints.
An MRI performed at the request of Dr. Abdu did not reveal any basis for a finding of
radicular pain. Dr. Abdu concluded that the claimant's pain was of unclear etiology, and
recommended a referral to a pain clinic.
4. Thereafter, the claimant consulted with Dr. Stanley E. Grzyb at the Spine Institute of
New England. Dr. Grzyb confirmed the findings of Dr. Abdu, including a limitation in range
of motion and a nonanatomic distribution of symptoms in the claimant's left leg. He, too,
recommended a multidisciplinary approach in dealing with the claimant's medical concerns.
5. The claimant continued to work with physical therapy until November of 1993.
Thereafter, the insurer sent the claimant to Dr. Leonard M. Rudolf for a medical evaluation
on February 14, 1994. Dr. Rudolf observed that the claimant had an antalgic gait,
and some limitations in mobility, although he did not specifically measure any limitations
in motion. He concluded that the claimant was at a medical end point, noting that
"...the patient does have some reluctance to put her lumbar spine through full range of
motion, and perhaps would qualify for a few percentage points secondary to loss of
full forward flexion and hyperextension, but this would be difficult to quantify precisely
since patient compliance with the request for demonstration of spine mobility is associated
with her reluctance at the time of our assessment. Patient indicated that frequently
when her back is not spasming' she has better mobility."
6. Shortly thereafter, the claimant returned to the Spine Institute to consult again with
Dr. Grzyb on March 23, 1994. Dr. Grzyb found that the claimant had limited range of
motion and "somewhat non anatomic sensory loss in the lower extremities." He indicated
to the claimant once again that there was no evidence of a surgically correctable lesion,
and indicated that a CAT scan or a bone scan might be the next step. The claimant
wished to have time to consider her options with her family.
7. The next medical record is from Dr. Grzyb dated June 30, 1995. There is no evidence
concerning any treatment between March 23, 1994, and June 30, 1995. There is also no
evidence regarding the claimant's activities during that period. Dr. Grzyb again
recommended a pelvic CAT scan and an MRI of the lumbar spine. These tests were
conducted and were determined to be essentially negative. As a result of these results,
Dr. Grzyb referred the claimant to Dr. Rowland Hazard for the initiation of a multidisciplinary
approach to her problem.
8. On September 1, 1995, Dr. Hazard evaluated the claimant, finding serious restrictions
in the claimant's range of motion, coupled with inconsistencies in certain of her tests.
He determined it would be appropriate to have a functional capacity evaluation. There is
no evidence that such an evaluation has been performed.
9. On October 11, 1995, the claimant was seen by Dr. John M. Peterson at the request
of her attorney for a permanency evaluation. Dr. Peterson reviewed all of the claimant's
records which have been submitted in this case. He also performed a physical examination,
using an inclinometer to measure the claimant's range of motion in her lumbar spine.
He also found multiple trigger points in the lower lumbar spine and bilaterally at the sacroiliac
joints. The claimant's history was corroborated by review of the medical records. Dr.
Peterson also reviewed the radiographs from NVRH from 1992 and 1993, as well as CT scans,
and the MRIs from Dartmouth-Hitchcock Clinic and from Spine. Based on his examination
and his review of the medical records and radiographic studies, Dr. Peterson opined that
the claimant's impairment fit within the AMA Guides to the Evaluation of Permanent
Impairment DRE Category II lumbosacral spine class, equaling a 5% whole person impairment,
or an 8.5% impairment to the spine.
10. Dr. Rudolf was provided with Dr. Peterson's evaluation and responded, on February 27,
1996, by placing the claimant in the DRE Category I lumbosacral spine class, with no
permanency. Dr. Rudolf did not feel it was necessary to re-evaluate the claimant to reach
this conclusion, and indicated that his opinion was based on his evaluation two years earlier.
11. The claimant has offered evidence of her fee agreement with her attorney calling for
a contingency fee of 25% of the amount recovered. Subject to the limitations in Rule 10(a)
in the Workers' Compensation and Occupational Disease Rules, this agreement is acceptable.
The claimant has also produced evidence of costs in the amount of $483.60. These
amounts are 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. The only evidence before me is the medical records notebook. Based on the medical
records, I cannot confirm many of the allegations in the defendant's proposed findings and
rulings. Specifically, reference to the claimant's subsequent work history is limited at
best in the medical records.
4. The dispute regarding the two permanency evaluations is between DRE Lumbosacral
Categories I and II. DRE I requires "no significant clinical findings, no muscle guarding or
history of guarding, no documentable neurologic impairment, no significant loss of structural
integrity on lateral flexion and extension roentograms, and no indication of impairment
related to injury or illness." DRE II, on the other hand, requires that "[t]he clinical history
and examination findings are compatible with a specific injury or illness. The findings may
include significant intermittent or continuous muscle guarding that has been observed
and documented by a physician, nonuniform loss of range of motion [ ], or nonverifiable
radicular components [ ]. There is no objective sign of radiculopathy and no loss of
structural integrity." (emphasis in original)
5. The defendant argues that the "[c]laimant has not demonstrated any consistent lost
range of motion and has no objective findings." The claimant is not required to show
consistent lost range of motion, as the definition requires only "nonuniform" lost range
of motion. At the very least, the claimant has established objective findings including
muscle spasms and trigger points.
6. Additionally, Dr. Peterson has complied with the other guidelines within the AMA Guides,
specifically by measuring the claimant's range of motion using an inclinometer. The Guides
recommend the use of the Range of Motion Model to confirm the DRE classification, and
this has been done by Dr. Peterson. Dr. Rudolf, on the other hand, at best estimates
the claimant's loss of range of motion, which is not approved methodology under the AMA
Guides. Dr. Peterson's evaluation is more credible.
7. I find that the claimant has suffered an 8.5% permanent partial impairment to her
lumbar spine, and is entitled to compensation therefore.
8. The claimant having prevailed is entitled to an award of attorney's fees in the amount
of 20% of the amount awarded or $3,000.00, whichever is less. An award of costs in the
amount of $483.60 is also appropriate as a matter of law.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, it is hereby
ordered that:
1. Alexsis, Inc., or in the event of its default Northeast Tool Division, pay permanency
to the claimant in the amount of 8.5% of the lumbar spine; and
2. Alexsis, Inc., or in the event of its default Northeast Tool Division, pay attorney's fees
in the amount of 20% of the amount awarded above or $3,000.00, whichever is less,
and costs in the amount of $483.60.
DATED at Montpelier, Vermont this 5th day of October 1996.
________________________________
Mary S. Hooper
Commissioner