Cole v. Notheastern Vermont Regional Hospital
(Apr. 29, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Marcelline Cole File #: E-22548
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
Northeastern Vermont Commissioner
Regional Hospital
Opinion #: 25-96WC
Record closed on April 22, 1996.
APPEARANCES
Jay Abramson, Esq., for the claimant
Glen L. Yates, Jr., Esq., for the defendant
ISSUE
Whether the claimant's loss of teeth was caused or accelerated by her concededly work related fall of June 15, 1992.
THE CLAIM
1. Medical and hospital benefits pursuant to 21 V.S.A. §640.
EXHIBITS
Joint Exhibit 1 Initial dental chart of Dr. Hawkins
Joint Exhibit 2 Billing statement of Dr. Hawkins
Joint Exhibit 3 "Attending Dentist's Statement"
Joint Exhibit 4 Letter dated October 7, 1993, from Dr. Hawkins to NVRH
Joint Exhibit 5 Letter dated January 20, 1994, from Dr. Hawkins to Phico
Joint Exhibit 6 Emergency Department record
Joint Exhibit 7 Admission record, dated June 15, 1992
Joint Exhibit 8 Radiology Consultation, June 15, 1992
Joint Exhibit 9 Report of Dr. Jauch dated June 15, 1992
Joint Exhibit 10 Return to Work slip, signed by Dr. Jauch
Joint Exhibit 11 Report of Dr. Jauch dated June 18, 1992
Joint Exhibit 12 Report of Dr. Morton A. Winner, March 24, 1994
Joint Exhibit 13 Curriculum Vitae of Dr. Winner
Joint Exhibit 14 Photograph labeled "Before"
Joint Exhibit 15 Receipts for medical benefits and temporary benefits paid by Phico Insurance
Defendant's Exhibit A Plate prepared by Dr. Winner
Defendant's Exhibit C Plate prepared by Dr. Winner
Defendant's Exhibit E "Positives" of dental negatives prepared and annotated by Dr. Winner
FINDINGS OF FACT
1. The parties have submitted the dispute for resolution based on the depositions of Marcelline Cole, Dr. Hubert Hawkins, and Dr. Morton Winner. The above exhibits are admitted into evidence. Notice is taken of all forms filed in this matter.
2. The claimant was injured when she tripped on a crumbled lip of the walkway leading into the Northeastern Vermont Regional Hospital ("NVRH") on June 15, 1992. The claimant was employed at the hospital as a food services worker.
3. In the fall, the claimant landed on her face, and suffered an undisplaced nasal fracture. She was bleeding from her nose, with some blood expectorated, and her lower lip was bruised and swollen. Medical personnel noted that several of her upper teeth were chipped or loose. No surgery was required, and the claimant was released back to work on June 26 by her otolaryngologist.
4. In 1990, some two years prior to the injury, the claimant began receiving dental treatment from Dr. Hubert Hawkins. He took extensive x-rays of her teeth. Prior to the injury, the claimant had lost 14 teeth, three by extraction with Dr. Hawkins. It was Dr. Hawkins' hope that he could save certain teeth as anchor teeth for partial or complete dentures for the claimant, given that she had some periodontal disease.
5. Dr. Hawkins and the claimant testified that she went in to see him within a day or two of the accident, and that he then determined that several teeth had been loosened in the fall. However, there is no record of this visit. The first record for a visit after the fall shows an extraction on August 13, 1992. Nothing in the record reflects any causal relationship between that extraction and the fall of June 15. The claimant also testified that none of her teeth had been loose prior to the injury.
6. Dr. Hawkins recalls that it was his hope that the loosened teeth would tighten up over a period of some time after the injury. He indicated that none of the teeth had been loose when he had seen the claimant on April 14, 1992, and that he believed that her periodontal problems could be resolved with careful treatment over the following months. He indicated that with periodontal disease, if there was bone loss of 50% or less, there would be a sufficient basis for saving the teeth in question, and that she had not suffered more than 50% bone loss on any of the teeth.
7. All of the claimant's remaining upper (maxillary) teeth have since been extracted by Dr. Hawkins. One lower (mandibular) tooth has been extracted since the 1992 injury. Dr. Hawkins noted in a 1994 letter to the insurer in this case that the 1992 accident rendered treatment of these teeth impossible.
8. Dr. Morton Winner testified based on his review of the records in this case, as well as his examination of the 1990 x-rays taken by Dr. Hawkins. Dr. Winner is certified by the National Board of Dental Examiners. He testified that periodontal disease is a chronic and ongoing infection of the gums and the jaw bone that results in damage to and erosion of the jaw bone. The root of the tooth is normally retained by the jaw bone, but with the dissolving of the jaw bone, the tooth becomes loose and ultimately becomes unsalvageable. The 1990 x-rays are important because they provide evidence of the level of the deterioration in the removed teeth before the injury in 1992.
9. Based on his review of the x-rays, which revealed the amount of bone loss in the jaw bone relative to each tooth and the amount of damage to the individual teeth from the periodontal disease, Dr. Winner determined that the claimant's teeth were unsalvageable prior to the injury, and that many of the teeth should have been removed at an earlier date. He testified that, in all likelihood, the teeth were all loose prior to the injury and that all showed at least a 60% loss of bone. Some showed bone loss between 70% and 100%. He indicated that the claimant's remaining mandibular teeth, those allegedly not damaged in the injury, all have significant bone loss in the 60% to 70% range, although they are still vertical, and that it is a choice between the patient and her dentist whether to try to retain them. Finally, he opined that there was no causal relationship between the accident of June 15, 1992, and the claimant's need for the extraction of her teeth.
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. This case will be resolved based on the dental testimony. The claimant is a poor historian who has contributed minimally to the final determination of the issues. A determination of the more credible evidence results in a finding that the claimant has failed to meet her burden of proof. First, the evidence of the severe periodontal disease prior to the 1992 injury strongly supports the proposition that any additional injury attributable to the fall was at best de minimis. Secondly, the failure of Dr. Hawkins to document the alleged visit immediately after the fall or to attribute his August, 1992, extraction to the fall strongly suggests that there was simply no correlation between the fall and the need for the extraction. It would require speculation or surmise to find that the fall, and not the serious preexisting periodontal disease, was the cause of the claimant's later extractions. While deference would normally be given to a treating dentist's opinions in a case, the witness' failure to document crucial information in support of his testimony call into question the credibility of his testimony.
4. Nor can the claimant prevail based on the theory that the fall contributed to the need for the extractions. While it is true that an injury that aggravates or accelerates an underlying condition is compensable, see, e.g., Roberts v. C&S Wholesale Grocers, Opinion No. 47-94WC, there is no evidence that the preexisting terminal condition of these teeth was made more terminal by the fall in question. If the teeth should have been extracted prior to the injury, there is no basis for claiming that their extraction after the injury was accelerated by the injury.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, Marcelline Cole's claim for dental benefits as a result of her injury of June 15, 1992, is denied.
DATED at Montpelier, Vermont this 29th day of April 1996.
_______________________________
Mary S. Hooper
Commissioner