Mills v. Windham Supervisor Union (July 23, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Janice Mills File #: C-21675
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
Windham Supervisory Union Commissioner
Opinion #: 45-96WC
Hearing held at Montpelier, Vermont, on June 13, 1996.
Record closed on June 28, 1996.
APPEARANCES
John C. Mabie, Esq., for the claimant
William A. O'Rourke, III, Esq., for the defendant
ISSUE
Whether the claimant is entitled to ongoing medical benefits as a result of her work related injury of April 2, 1990.
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. Claimant was an employee within the meaning of the Act at all times relevant hereto.
2. Windham Supervisory Union was an employer within the meaning of the Act at all times relevant hereto.
3. On the date of the accident, American International Adjustment Company, Inc., was the workers' compensation insurance carrier to Windham Supervisory Union.
4. On April 2, 1990, Claimant suffered an injury arising out of and in the course of her employment.
5. In April of 1992, Claimant suffered a subsequent work related injury.
6. At issue in this case is Claimant's entitlement to medical benefits relative to her alleged work-related injury.
EXHIBITS
1. Joint Exhibit 1 Medical records notebook
2. Claimant's Exhibit A Curriculum Vitae of Dr. Rex Carr
3. Defendant's Exhibit I Deposition of Dr. Robert M. Weiner
4. Defendant's Exhibit II Deposition of Dr. Kuhrt Wieneke
FINDINGS OF FACT
1. The above stipulations are accepted as true and the above exhibits are admitted into evidence. Notice is taken of all forms filed in this proceeding.
2. The claimant worked at Brattleboro High School, where she was an aide for disabled students. On April 2, 1990, she was assisting one of her charges out of her vehicle, when the student began to suffer a seizure. The claimant grabbed the student and tried to lower her to the ground, twisting in the process. The claimant felt the sudden onset of pain in her back after hearing a snapping noise.
3. The pain increased as she continued to assist the student, and the claimant sought medical attention on her way home with her family physician, Dr. Thomas Evans. The claimant treated with a number of providers over the months following her injury, and had a CT scan and then an MRI done. Both tests failed to produce evidence of an objective injury.
4. The claimant was out of work for a year and a half with back pain. She began in May of 1991 to treat with Dr. Jeremy Birch, a psychologist, for chronic pain and a secondary depression. It was Dr. Birch's intent to treat her in a cognitive-behavioral modality to improve her mechanisms for dealing with the pain. He viewed his role as primarily one of supportive care. He described his treatment as being supportive of all positive activities, including appropriate and adequate exercise, physical therapy, relaxation, diet, limit-setting and emotional excesses, among other factors. He has continued, with one hiatus, to treat the claimant to the present.
5. The claimant returned to work full time in the fall of 1991, at least in part based on Dr. Birch's recommendation that work would be helpful for her.
6. In February of 1992, the claimant was referred by her chiropractor to Dr. Daniel Wing, a physiatrist. Dr. Wing treated the claimant with an injection of Triamcinolone and Lidocaine in the SI joint, and Lidocaine in her two most active trigger points. He opined that her problem was recurring instability at the right SI joint, and recommended a weight loss program as well as a stretching program. He indicated that the claimant's obesity was a definite impediment to her healing.
7. Dr. Wing followed up with the claimant on March 5, 1992, where he noted that "[t]he patient had what sounds like 90% relief of symptoms beginning about 24-30 hours after the injection. There were times during the last two weeks when she was completely symptom free but she is conscious within the last few days of the return of some discomfort, less than she had previously." After a physical examination showed some evidence of improvement, Dr. Wing reinjected the SI joint and the trigger points. However, he cautioned the claimant that the injection's "effectivacy" was only as good as the placement of the needle, a problematic issue given the claimant's obesity.
8. Dr. Wing saw the claimant for the last time on April 30, 1992. He noted at that time that "[s]he has now had total resolution of her piriformis pain and her right lateral hip pain - in fact, on physical exam today she has equal or even greater internal rotation passively of the right hip than left in a prone position." He also noted her second injury, which occurred when she stepped off a curb at work, and found a fairly large area of tenderness in the superior aspect of the SI joint. Because of the diffuse area of pain, he was not able to inject it to attempt to relieve some of the discomfort. He indicated that "the overall trend is for improvement" and suggested that the claimant lose weight and undertake a Stairmaster program at a health club, a program that is helpful in rehabilitating the buttock area.
9. The claimant testified that, while she felt some relief from the first shot given her by Dr. Wing, the second two shots were unhelpful. The claimant also testified that she did not recall that she had improved as much as indicated by Dr. Wing's notes. The claimant did not explain her failure to follow Dr. Wing's advice regarding a Stairmaster program.
10. The claimant consulted with Dr. Rex Carr, a physiatrist, on August 11, 1992. The record is silent as to why the claimant went to Dr. Carr instead of returning to Dr. Wing. Dr. Carr determined that the claimant was probably suffering from myofascial pain, although there was a possibility that the problem was an SI joint instability. Dr. Carr began to treat the claimant with medications to improve her sleep and her energy.
11. Dr. Carr testified that he did not know the mechanics of the claimant's injury, and had not seen all of her medical records prior to reaching his diagnosis. He did not know what, if any, diagnosis had been given for her problem when she was originally injured. He did not know what her work history was between the date of injury and her first appointment with him. However, he still felt he could make a causal connection between the work injury and the claimant's condition when he first saw her over two years after the injury.
12. Over a period of almost two years, Dr. Carr's notes indicate steady progress, interrupted occasionally by minor exacerbations of the claimant's problem. On May 6, 1994, his notes reflect that "[s]he reports that she is doing the best that she can recall doing. She is unfortunately not waking up quite pain free but is walking around in the pool without difficulty. She is also tolerating more hours at school now than she had been in the past." He reiterated that she was feeling "the best she has been" on his next visit with her on May 27.
13. On June 29, 1994, Dr. Carr reported that the claimant was having nightmares after her nephew committed suicide. He noted that she was not getting good quality sleep, or enough sleep. However, he also noted that she was not too unrested.
14. On June 13, 1994, the claimant had called Dr. Birch for an emergency appointment. She was very distraught over the suicide of her nephew. She was very sad and tearful, and had come down with a cold. Less than two weeks earlier, Dr. Birch had written the insurer for the defendant and had reported that "[s]he is making excellent progress, handling her work full time and her physical condition is not a major limitation. She states that she now feels better than at any time since her accident.... We have discussed terminating treatment and have agreed that this will be soon." He reiterated this opinion on June 30, and indicated that they had "yet to agree on a date" for termination.
15. Throughout the summer of 1994, Dr. Birch continued to report on a series of psychological traumas from which the claimant was suffering. She continued to be concerned about her nephew, and indicated that the family seemed to be in denial. On July 14, the claimant reported an increase in back pain, coincident with the resurfacing of old family issues involving inappropriate behavior by her son. In August, as the back pain continued, the claimant's daughter had a horse riding accident that required her to miss work, and her son's girlfriend went on a binge while he was in the hospital for an appendectomy. As a result of the girlfriend's binge and some subsequent involvement with the police, the claimant ended up with the couple's child for caretaking. Significantly, in August, Dr. Carr also ordered the claimant to take bed rest for three or four days because of a sudden and apparently unexplained increase in pain.
16. In September, the claimant reported to Dr. Carr that she had taken a bad fall about two weeks earlier. There is no evidence in the record about the nature of the fall nor the consequences of the fall. At that time, she and Dr. Carr discussed the possibility that she might be suffering from fibromyalgia, a fact that she passed on to Dr. Birch. As a consequence, he wrote to the carrier that "[s]he continues to have ups and downs. While she has been able to handle work full time, yet still has episodes of limiting back pain.... She may now have fibromyalgia. She is clearly not ready terminate [sic] treatment yet." Dr. Birch testified that treatment such as the claimant's might not be linear, and that setbacks were not uncommon. He indicated that she coped well with the emotional upsets, although they caused him to prolong his treatment of the claimant.
17. The claimant continued to treat with both Dr. Carr and Dr. Birch over the following school year, during which the claimant continued to work. For a few months in the winter, the claimant stopped treating with Dr. Birch because the insurer had indicated that it would not pay for his services anymore. However the claimant began to see Dr. Birch again in May of 1995. During the period that the insurer stopped paying for the claimant's therapy with Dr. Birch, both Dr. Birch and Dr. Carr politicked heavily with the insurer for reinstatement of the psychological benefits.
18. On May 19, 1995, Dr. Carr noted that "[s]he has been rehabilitated to the point of returning to gainful employment and she has also been able to become more functional." This ignored the fact that she had been gainfully employed at the time that he started to treat her. It was his intention to place her with a massage therapist once the school year was over. It was his hope that this would reduce the muscle spasm he said she was experiencing.
19. Over the course of the summer of 1995, the claimant engaged in physical therapy on a daily basis. Dr. Carr's notes indicate that the claimant was suffering from considerably more pain and disfunction in the summer of 1995 than she was in either of the prior summers. Dr. Carr opined that one of the stressors in the claimant's life was the unhelpful behavior of the insurer in this case, especially since the issue had been raised as to whether the claimant had reached an end medical result.
20. Also in the summer of 1995, after attending a conference on myofascial pain, Dr. Carr began to treat the claimant with a series of vitamins and minerals that he had heard about at the conference. He also ordered a series of blood tests that he had heard about at the conference. Based on these tests, he initiated treatment with a thyroid supplement, and arranged for the claimant to begin to take vitamin B-12 shots. He also recommended that the claimant acquire a home electrical stimulation machine, which he opined would reduce the muscle spasms from which she was suffering.
21. Based on his opinion of her lack of progress, Dr. Carr recommended that the claimant not work when the school year started in the fall of 1995. Dr. Carr did not consult with Dr. Birch at any time with regard to this recommendation.
22. In May of 1995, the claimant was seen by Dr. Kuhrt Wieneke, an orthopedic surgeon, at the request of the insurer. Dr. Wieneke opined that the claimant was suffering from a psychophysiologic conversion reaction which failed to respond to "relatively massive efforts on the part of her providers." He indicated that the physical injury suffered by the claimant in 1990 would have resolved in six to twelve weeks, and that the therapy she was receiving from Dr. Carr and Dr. Birch involved her chronic pain syndrome. He made physical findings consistent with a chronic pain syndrome, specifically in the restricted motion in her lumbar spine. He testified that the treatment of her chronic pain syndrome "should primarily be directed toward removal of all supportive pain medications and an activity program that emphasizes daily living activities that keeps the person in the work force with a major effort at weight reduction...."
23. Dr. Wieneke found that the claimant was working, and that it was consistent with his opinion that she had a work capacity. He also opined that she was not suffering from myofascial pain, and based his opinion on the literature which suggests that myofascial pain relates to sensory disturbances, and is mediated by nerves or nerve roots. He found no sensory deficits in the claimant. He specifically found that she had no trigger points and that her pain complaints were generalized, which also detracted from a finding of myofascial pain syndrome. He found no muscle atrophy, which suggests a normal use pattern of the muscles of her legs and back. He found no evidence of neurological deficits.
24. Dr. Wieneke determined that the claimant was at an end medical result from her injury of April 2, 1990, at the time that he saw her on May 10, 1995. He stated that he had "never, ever had a patient in whom a lumbosacral sprain became chronic to the point of being refractory to treatment, ever." He also indicated that pain medication "is not an acceptable long term answer to chronic pain." Finally, he testified that B-12 shots are a placebo, having an equal success rate as sugar pills or sterile water.
25. The claimant was examined on January 13, 1995, by Dr. Robert M. Weiner, a board certified forensic psychiatrist, on behalf of the insurer. Dr. Weiner trained as a medical doctor with a specialty in psychiatry. He has directed a court clinic in Massachusetts, and has been a consulting psychiatrist for various courts in that state. He disagreed with the diagnosis of Dr. Carr, and determined that the claimant suffered from "an emotional reaction manifest by anxiety and depression causally related to personal and family issues." He agreed with Dr. Wieneke that the claimant's pain had a psychiatric, rather than physiological, basis. He denied that the claimant's current chronic pain syndrome was related to her work injury of April of 1990, or indeed any subsequent injury at work, but rather opined that it was the product of the stressors in her personal life.
26. Dr. Weiner found that the claimant experienced a number of family crises that were not adequately addressed by the claimant. He referred particularly to the claimant's mother's metastatic breast cancer, her husband's very difficult period with Crohn's disease, and her son's emotional and legal difficulties. He found that the claimant minimized the seriousness of these occurrences, and expressed her emotional pain over these issues in physical terms, by complaining of chronic physical pain. In response to a question about the claimant's recovery from these life stressors, Dr. Weiner stated that "she has not recovered, and it's not reasonable to really put it that way because these are ongoing issues. The debilitation and fatal illness of a mother, the serious illness and impairment of a husband, and the substance abuse, marital problems, and legal problems of a son are not something that one gets over the way one gets over, say, a sprained ankle. These are issues that she will never, I suspect, forget and will remain problems for her, as they would for anyone, through the years." He found that she is suffering from an emotional depression caused by "her feelings of sadness, emotional stress, anxiety [and] unhappiness....related to the personal and family issues that she has experienced and currently does experience."
27. Dr. Weiner discussed the nature of a "therapeutic contract" and the role it played in the claimant's treatment. He defined the contract as an understanding between a therapist and the patient as to "what they're about, specifically what the purpose of their treatment is." In this case, the agreement between Dr. Birch and the claimant was that he was going to help her with her pain. He indicated that some psychological techniques can be used to help with pain, including, among other things, breathing techniques, self-hypnosis and encouragement. He indicated that these techniques could be taught in between four and eight sessions. He pointed out that one of the traps in long term therapy is that the patient becomes dependent on the therapist, and that the therapist either does not recognize it or take appropriate action to deal with it.
28. With reference to the length of the claimant's treatment with Dr. Birch, Dr. Weiner opined that the claimant was no longer in need of Dr. Birch's services "because the contract that he made with her was one in which they were working together on pain and he would talk with her; as she reported that her pain was significantly better, that they should terminate; but then her pain would get worse and he would continue on. So that given the contract that he had with her, which was basically a pain contract, I think he should have stuck to his guns, despite her saying now she has pain, and terminated with her."
29. The claimant testified that she was, prior to the injury, an active woman, very involved with her church and other social activities. She was helpful to those in trouble, and a person upon whom others could rely. She was supported in this testimony by the Reverend Thomas Shanklin, her pastor of many years and a personal friend. Both the claimant and Reverend Shanklin spoke of the significant changes in the claimant's behavior after the work injury of April 1990.
30. On September 29, 1995, the insurer filed a Form 27, Notice of Intent to Discontinue Payments, with regard to the claimant's ongoing medical treatment.
31. The claimant has produced evidence of the time her attorney, along with his law clerks and paralegals, expended in representation of her during this proceeding. However, no evidence was presented with regard to the fee agreement or any expenses incurred.
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. 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). 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).
3. Credibility of the medical witnesses is the primary issue in this case. While the Department has traditionally given much deference to treating physicians, other physicians have also been found to be credible. The treating physicians in this case are not found to be credible.
4. Dr. Carr's claim to make a correlation between the claimant's condition upon his first examination and her work injury over two years earlier without reviewing her prior medical records is difficult to accept. Compare, Rebecca Stone v. Pleasant Manor Nursing Home, Opinion No. 34-96WC. Dr. Carr's treatment has not been shown to assist the claimant in any measurable way for the four years he has treated her. Compare, Jonathan Billard v. Agway, Opinion No. 73-95WC. When he began to treat her, she was gainfully employed, at various times on a full-time basis. He has now taken her out of work, although there is no objective evidence that her functional capacity has diminished. He has prescribed for her injections with a known placebo effect. Compare, Gloria Pickering v. Brattleboro Memorial Hospital, Opinion No. 12-96WC. The fact that no progress has been made certainly raises the question whether Dr. Carr's diagnosis is correct. Even on his own theory of the claimant's medical problem, he failed to recognize the serious stressors facing the claimant in the summer of 1994, or the significance of his ordering her to bed during this period.
5. In contrast, Dr. Wieneke's testimony that the appropriate treatment for the claimant involved exercise and reduced reliance on pain medicines clearly echoed the medical advice given to the claimant by Dr. Wing, one of her treating physicians. Dr. Wieneke's scepticism about a refractory lumbosacral sprain is compelling, particularly in light of his testimony regarding the claimant's lack of objective findings for myofascial pain. Moreover, his agreement with Dr. Wing about the detrimental effects of the claimant's obesity is in stark contrast to Dr. Carr's failure to consider the role of that obesity in the claimant's treatment.
6. Similarly, while Dr. Birch's treatment on its face might seem reasonable, it fails the rigorous tests imposed by Dr. Weiner. Specifically, Dr. Birch defined in his testimony his agreement with the claimant consistent with Dr. Weiner's opinion, and yet continued to treat the claimant well past the time for teaching pain coping techniques. Moreover, his failure to recognize the significance, from a psychological perspective, of the events of the summer of 1994 calls into the question his basis for all of his opinions in this case. Dr. Weiner's contrasting of the healing periods for emotional tragedies as opposed to those for a sprained ankle certainly bears more of the ring of truth than Dr. Birch's opinion that the claimant was coping well with the stressors in her life.
7. Dr. Weiner's testimony has the merit of bringing together all of the evidence of the claimant's extensive medical record, specifically the lack of medical evidence of an actual physical problem, and the coinciding of the psychological stresses with the complaints of increased pain. Moreover, his diagnosis has the benefit of offering the claimant the hope of some improvement, in contrast to the apparently limitless treatment she has been receiving at the hands of her current providers. Dr. Weiner's substantial forensic experience gives his opinion a definite credibility, which, coupled with its other merits, compels its acceptance.
8. The carrier's Form 27 is supported by substantial evidence, and the claimant is not entitled to further medical benefits because of her work injury of April of 1990. The claimant, not having prevailed, is not entitled to an award of attorney's fees or costs. Therefore, the attorney's failure to provide a copy of his fee agreement with the claimant is harmless.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, Janice Mills' claim against the Windham Supervisory Union for further medical benefits for her work injury of April 2, 1990, is denied.
DATED at Montpelier, Vermont this 23rd day of July 1996.
______________________________
Mary S. Hooper
Commissioner