McPadden v. Omega Optical (June 28, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Mary T. McPadden File #: E-08289
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
Omega Optical Commissioner
Opinion #: 37-96WC
Hearing held at Montpelier, Vermont, on May 2, 1996.
Record closed on May 14, 1996.
APPEARANCES
Kathleen B. Hobart, Esq., for the claimant
Keith J. Kasper, Esq., for the defendant
ISSUE
1. Whether the claimant's current medical condition arises out of her work injury of October 3, 1991.
2. Whether the claimant has been temporarily, totally disabled since January 1, 1995.
THE CLAIM
1. Temporary total disability compensation pursuant to 21 V.S.A. §642 from January 1, 1995, and on-going.
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).
EXHIBITS
1. Joint Exhibit 1: Medical notebook
2. Joint Exhibit 2: Curriculum Vitae of Dr. Richard Saunders
3. Joint Exhibit 3: Curriculum Vitae of Dr. Dorothy Ford
Additionally, marked for identification purposes only:
4 For I. D. 1: Employer's First Report of Injury, No. E-8289
5. For I. D. 2: Agreement for Permanent Partial Disability, No. E-8289
6. For I.D. 3: Affidavit of Mary T. McPadden dated January 24, 1996.
STIPULATIONS
1. Mary McPadden was an employee within the meaning of the Vermont Workers' Compensation Act (hereinafter "Act") at the time of her work-related injury on October 3, 1991.
2. Omega Optical was the employer within the meaning of the Act on the date of Claimant's injury.
3. Aetna Life and Casualty was the workers' compensation insurance carrier for Omega Optical on the date of Claimant's injury.
4. On October 3, 1991, Claimant suffered a work-related injury arising out of and during the course of her employment.
5. At the time of the injury, Claimant's average weekly wage was $405.31, which related to an initial compensation rate of $270.22.
6. At the time of the injury, Claimant had one dependent, but currently has two dependents.
7. The parties agree to this stipulation and joint medical exhibits and request the Department take judicial notice of all forms in the file.
8. Claimant seeks all reasonable and necessary medical benefits relating to her work-related injury and temporary total disability benefits retroactive to January 1, 1995.
9. Defendant alleges that Claimant's current problems did not arise of [sic] and during the course of her original work-related injury on October 3, 1991. Defendant also raises the defense of lack of notice as a bar to Claimant's claim.
PROCEDURAL NOTE
At the pretrial conference, the claimant identified as a potential witness in this matter Dr. Martin H. Krag, claimant's current treating physician. In spite of numerous attempts by claimant's counsel to obtain the assistance of Dr. Krag in the preparation of the case for hearing, claimant was not even able to obtain copies of Dr. Krag's records. By letter of April 3, 1996, claimant's counsel posed questions in writing to Dr. Krag, which remained unanswered in the days approaching the hearing date. As a result, a subpoena was issued for Dr. Krag's appearance at the hearing. On April 30, 1996, the subpoena was served at the Spine Institute, the witness' place of employment. On May 2, 1996, at the formal hearing in this matter, Dr. Krag did not appear. The claimant elected to proceed without the evidence of Dr. Krag. However, on May 3, 1996, Dr. Krag sent by facsimile his response to the questions posed by claimant's counsel as well as those posed by the claimant at her appointment on April 30, 1996, to claimant's counsel. On May 9, 1996, the claimant through counsel filed a Motion to Reopen, based on the receipt of the material from Dr. Krag. Counsel also asked that the material presented by Dr. Krag be accepted into evidence. There was no objection by defense counsel. The material presented by the claimant in support of the Motion to Reopen, including the affidavit of counsel, the correspondence to Dr. Krag, and Dr. Krag's response, is now marked as Claimant's Exhibit A.
FINDINGS OF FACT
1. The above stipulations are accepted as true, and the exhibits, Joint Exhibit 1 through 3, and Claimant's Exhibit A are admitted into evidence. Notice is taken of all forms filed in this matter. Dr. Krag's facsimile letter and medical report are admitted into evidence.
2. The claimant began to work at Omega Optical in January of 1991. At some point in the late summer of 1991, for reasons that were not revealed in the hearing, a number of employees left Omega Optical on short or no notice, and they were not immediately replaced. The claimant's position was in customer service and sales, and she found herself alone in the office, trying to do the work of several people. The telephone was ringing incessantly, and she would spend most of her time on the phone, while trying to read files and make notes. She held the telephone cradled between her shoulder and her ear, as she tried to do her work.
3. On October 3, 1991, the claimant noticed that her neck got very stiff and painful, to the point where she could not move her neck. She reported her problem to her supervisor and went home. She tried to work the next day, a Friday, and managed to put in a few hours before she had to leave. She woke up the following day in agony, with her ear on her shoulder and her arm kinked up as if it were in a sling.
4. Over the weekend, the claimant went to a chiropractor, and followed up with her general practitioner the following week. He gave her pain killers and steroids, and the claimant felt some relief from the latter but not the former. When the steroids wore off, the pain returned, and the claimant consulted with Dr. Marcy Jones, a chiropractor. He indicated that "she was beyond chiropractic" and sent her to Dr. Kerri Wilks, a neurologist at the Hitchcock Clinic-Brattleboro, who saw her on Wednesday, October 30, 1991.
5. Dr. Wilks found the claimant to be in severe pain in the neck, radiating into the right upper extremity in the C5-6 distribution. The claimant was already scheduled for an MRI on Friday, but Dr. Wilks was sufficiently concerned to try to move the MRI to that same day, Wednesday. When she was unable to do so, she advised the claimant to rest, and to report to the hospital immediately if there was any further deterioration. Upon reading the MRI, which revealed impingement on the spinal cord at two levels, Dr. Wilks referred the claimant to Dr. John Savoy, a neurosurgeon at Dartmouth Hitchcock Medical Center.
6. Dr. Savoy's initial review of the MRI on November 14, 1991, showed "a rather severe cervical spinal stenosis, actually at multiple levels, but especially at C5-6, to a lesser extent at C6-7 and C4-5. There is definite distortion of the spinal cord at these levels." He was concerned because there had been an appropriate course of conservative care, including at least two failed prednisone tapers, and the claimant had failed to progress. Based on his examination and findings, he referred the claimant on to Dr. Richard Saunders.
7. Dr. Saunders recommended immediate surgery, and preparations were made for the admission of the claimant that day to the hospital. However, because of a large influx of emergency admissions, the claimant could not be operated on as planned and she was sent home. She returned to the hospital on November 20 for the surgery.
8. Dr. Saunders performed a facetectomy and diskectomy at C5-6, finding a large disc fragment impinging on the C6 nerve root. The claimant tolerated the surgery well, and experienced a reduction of all of her major symptoms as a result of the surgery. Dr. Saunders' impression, some six weeks after the surgery on January 13, 1992, was that there was an excellent outcome to the surgery, with a minimal permanent partial impairment of 5%, and a return to work without restriction.
9. The claimant reported that Dr. Saunders told her that her neck "looked like a train wreck." Dr. Saunders doubted that he said anything so dramatic, but indicated that the claimant's neck, at the time of the surgery, was not in good condition, showing extensive signs of degenerative processes. However, she felt fairly good immediately after the surgery, and believed she could return to work.
10. The claimant returned to work at the defendant after her release to work. Her old position had been refilled (by five people!) and she was placed in a position involving less desk work. It was her new job to select product for shipping and to follow it through the company to the shipping department. She would have to find the product in file drawers, and then walk to another building with it. She spent a large amount of time on her feet and walking between the buildings. She never managed to work a full week in the period following the surgery, and she performed no overtime. She was always in some pain, weak and stiff, and would have to accommodate her neck problem by lifting product up to eye level to identify it.
11. The company made no accommodations for the claimant's disability. Because of "who she is," the claimant tried to do what was expected of her, in spite of the fact that she felt that the work was wearing her down. Although her supervisor questioned her on the number of breaks she was taking, she felt she had no choice, and so advised him. Her hours were dropping, but she was unable physically to do more. Finally, in July of 1992, she gave her notice, and she left the company in August.
12. The claimant did not return to seek further medical attention because she felt, as she had been told, that what she was experiencing was an "excellent result." She had been told by Dr. Saunders that she did not need physical therapy, and she believed that there was nothing that could be done for her condition. She believed that, if she worked at it, she could heal herself. She self-treated with ibuprofen, massage, ice and heat.
13. The claimant in August of 1992, received a Form 22, Agreement for Permanent Partial Disability Compensation, from Aetna, the insurer for the defendant. There was no explanation for the terms of the agreement and she received, upon signing it, the benefits for 5% permanent partial impairment to her cervical spine.
14. The claimant took a job at Holographics North in Burlington in September of 1992. She moved to the area, and her job was about a ten minute walk from her house, so that she would not have to drive. She believed that she would be able to perform secretarial tasks, and that this would be a less demanding position than her job at the defendant.
15. The claimant worked at Holographics from September of 1992, until May of 1994. During that period of time, she had difficulty sleeping because of the pain, and discovered that driving a car was difficult as she could not turn her neck adequately. She lost, over the months following the surgery, her endurance, and found she was limiting her activities severely. She was not able to work 40 hours in a week at Holographics more than a few times, and she was feeling more and more worn out.
16. The claimant married in 1993 and later took a maternity leave of undetermined length for the birth of her second child. Her husband was a student at the University of Vermont, and health services were available to her there. After her return to work after the maternity leave, the claimant continued to experience a lot of pain. She finally left Holographics when she "just couldn't take it anymore."
17. The claimant and her family moved to Jeffersonville, where the claimant began to try to walk to build up her endurance. In July of 1994, the claimant noted that her neck had begun to pull over toward her shoulder again, and she sought the assistance of a chiropractor in Stowe in August of that year. She did this mindful of the fact that chiropractic was not successful at the onset of her problem.
18. Over the fall of 1994, the claimant needed assistance with housework and with child care. She could not perform such seemingly simple tasks as fixing her hair. She felt she was getting some benefit from the chiropractic treatments, and in December applied for a daycare position at Smugglers Notch. She believed that she had recovered sufficiently to perform the functions of that position. She found that she had difficulty bending over or twisting or reaching, all part of her responsibilities at the daycare center. She could only stay a few days, and terminated her employment.
19. In January of 1995, the claimant attempted to go cross country skiing with her husband. She believed that she would be able to do this, based on the walking she had done in the fall. However, she had a hard time putting on her boots, and went no more than a few steps before she sat down in defeat. She had no new symptoms at this time. She did not fall. Her husband, as he had done in the past, made her seek medical treatment again.
20. The University Health Services, after ordering an MRI, referred the claimant to Dr. Nancy Binter. Dr. Binter's note indicates that the claimant reported a "fall" while skiing. She also read the MRI to indicate that the claimant had a small C5-6 disc herniation to the right, which might represent residual scarring, and a disc herniation at the C6-7 level. Her physical findings included decreased sensation in the C-6 dermatome on the right, and a mild weakness in the right bicep. She also found that the claimant had cervical spondylosis, and recommended conservative treatment with medication and physical therapy.
21. The claimant self-referred back to Dr. Saunders in March of 1995. Unfortunately, she forgot to bring the MRI with her to her appointment. Based on her complaints and descriptions of symptoms, Dr. Saunders suspected that she was having recurrent problems with the same nerve that he had freed up in 1991. He indicated that he was not surprised to see the claimant again, given the nature of her earlier injury, and that he found that she had fairly severe degenerative changes in her neck. He strongly recommended symptomatic relief in the form of anti-inflammatories, exercise of the shoulder girdle, avoidance of activities that caused symptoms, and massage.
22. Upon review of the MRI, Dr. Saunders spoke with the claimant over the telephone and confirmed his comments in writing to her. He indicated that her two avenues of recourse were the conservative care as outlined in Finding #21, or a spinal fusion. His opinion was that the fusion should be considered as a last resort, and that she should attempt to avoid it until her pain became excessive.
23. The claimant was unable to resolve her medical difficulties, and returned to Dr. Saunders by telephone in August of 1995. She requested surgery. They met again in October, where Dr. Saunders opined that many of her problems were due to guarding and protective behaviors that had developed in response to the degenerative process in the neck. He recommended a sports medicine program, or a swimming program. Dr. Saunders in January of 1996 referred her to physical therapy.
24. When physical therapy proved unavailing once again, the claimant went to the Spine Institute in Burlington. In her initial appointment with Dr. Rowland Hazard, it became clear that the claimant had developed a moderate depression because of her pain. Dr. Hazard also noted some pain behaviors. The claimant's records until the fall of 1995 are devoid of references to pain behaviors. Dr. Hazard referred the claimant to Dr. Martin Krag for a further surgical consultation, and to Dr. Nancy Silberg for counseling intervention.
25. The claimant saw Dr. Krag, who ordered a discogram, a study that involves inserting a needle into the disc and injecting a dye. An x-ray is then taken. While the dye is being injected, the patient is asked regarding any pain or sensation that is triggered by the insertion. The claimant's examination was performed on April 11, 1996, at the C4-5, C5-6 and C6-7 levels. Injections at all three levels produced positive pain responses. While the report indicated that the claimant thought the C4-5 injection mimicked her typical pain, the claimant denied that this was the case. She indicated that each injection produced some of the symptoms that were daily occurrences, and that the C6-7 injection produced new symptoms to the left side that she had never experienced before.
26. The claimant has continued to treat with Dr. Krag. She has been recently hampered in her choices for treatment by a new pregnancy. Surgery has not been ruled out in the future, once the baby is born.
27. Dr. Krag has opined that the most likely source of the claimant's major symptoms is the C6 nerve root, caused probably by the degeneration of the C5-6 disc and scarring from the prior surgery. He indicated that the current symptoms are attributable to an accumulation of mechanical stresses related to day to day activities, and not to any particular trauma. Moreover, he does not believe that any treatment would have slowed down the degenerative changes that occurred since the surgery.
28. Testimony was received on the causation issue from Dr. Saunders and Dr. Dorothy Ford. Dr. Ford never examined the claimant, and based her opinions on review of the diverse records of medical treatment.
29. Dr. Ford testified that she did not believe there was a relationship between the 1991 injury and the claimant's current symptoms. She noted that there had been no treatment between 1992 and 1994, and that the claimant had been gainfully employed during at least part of that period of time. Had the claimant sought treatment during that period of time, Dr. Ford would have recommended physical therapy or a job modification. She testified that treatment would not have cured the claimant's problem, but would have improved her functionally. While she would not recommend chiropractic for this condition, she did not believe that it exacerbated her problems in this case.
30. Dr. Ford specifically found that the claimant suffered an aggravation of her underlying neck condition, not a recurrence. She could not point to any particular event as the basis for this opinion. However, she indicated that it was her opinion that almost the only way she would find a recurrence in a case such as this would be a frank reherniation of the surgical disc. She did not address the possibility of scarring as being the basis for the
continuing symptoms.
31. Dr. Saunders testified that the claimant's neck, at the time of the original surgery, already showed signs of degenerative changes. However, the actual herniation at C5-6 was clearly as a result of the trauma at work. He also indicated that trauma to an arthritic neck may be the trigger for further difficulties. At the time of the surgery, he was concerned about the levels above and below the surgical disc, but opined that the least amount of surgery that could be done was the only appropriate way to handle the case.
32. Dr. Saunders indicated that while the predominance of the symptoms in 1991 were at the C5-6 level, it was likely that the trauma was more global, given the mechanism of the injury. He stated that it would be disingenuous to say that the trauma affected only one level of the spine, given the severity of the injury to the C5-6 level.
33. The claimant has presented evidence of her attorney's fees and costs in this matter. Her attorney has expended 82.25 hours in her representation of the claimant, which, in light of the difficulties with Dr. Krag and the complexities of the factual issues, is reasonable. The claimant's costs of $387.87, as itemized, 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. The claimant must prevail in this case. The medical evidence at the time of her injury shows an affront to three levels of her cervical spine, the same three levels currently symptomatic. The claimant's expert witness Dr. Saunders has indicated credibly that the claimant's original injury encompassed more than the area upon which he operated, and that the nature of the trauma in this case would trigger the ongoing problems from which the claimant suffered. The only countervailing evidence is that of Dr. Ford, whose blanket assertion that only a reherniation would constitute a recurrence within the meaning of the Workers' Compensation Act belies a misapprehension of the law and the applicable standard in this case.
4. An underlying condition that is made symptomatic by a work injury is compensable under the Workers' Compensation Act. Marsigli's Estate v. Granite City Auto Sales, Inc., 124 Vt. 95 (1964). Prior to the insult to the cervical spine that the claimant suffered at the defendant, she was asymptomatic even though her cervical spine had already experienced extensive degenerative changes. The initial MRI performed shortly after the injury showed an acute injury to the C5-6 level, with lesser injuries to the C4-5 and C6-7 levels. Dr. Saunders' testimony that the least intrusive surgery possible would be the appropriate treatment was neither confirmed nor denied by the defendant's expert, who similarly failed to comment on the initial evidence of damage to three levels. The fact of the underlying degenerative changes is, given the evidence, unavailing to the defendant when the evidence clearly establishes not only new trauma to three levels as a result of the work related injury but also symptoms of a new and persistent nature triggered by that trauma. Indeed, it would require speculation or surmise to find that another incident or course of conduct terminated the progression of the claimant's disability triggered by the 1991 injury.
5. The claimant has requested temporary total disability compensation for the period from January 1, 1995, through the present and ongoing. The evidence on the claimant's inability to work, to the extent that it is not anecdotal, comes from Dr. Saunders, who has described her capacity as very limited, and indicated that the claimant should not perform tasks that cause her to be symptomatic. There is no evidence that the claimant has any actual work capacity. Because the carrier has denied the claim in toto, none of the normal mechanisms for determining work capacity has been triggered. It is clear, however, that the claimant has not reached an end medical result since the beginning of her recent round of treatment in January of 1995. Under all of the circumstances of this case, I find that the claimant is entitled to temporary total disability compensation for the period from January 1, 1995, and ongoing.
6. The claimant having prevailed is entitled as a matter of law to an award of costs in the amount of $387.87 and as a matter of discretion to an award of attorney's fees in the amount of $2,878.75.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, Aetna Life and Casualty, or in the event of its default Omega Optical, is ordered:
1. To pay the claimant temporary total disability benefits from January 1, 1995, to the present and ongoing;
2. To pay medical benefits for the period from January 1, 1995, and ongoing;
3. To otherwise adjust this claim in accordance with the Workers' Compensation Act; and
4. To pay attorney's fees in the amount of $2,878.75 and costs of $387.87.
DATED at Montpelier, Vermont this 28th day of June 1996.
______________________________
Mary S. Hooper
Commissioner