Smith v. Pompanoosuc Mills (Sept. 5, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
David J. Smith File #: F-21371
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
Pompanoosuc Mills Commissioner
Opinion #: 47A-96WC
Amended Order
By Order dated July 29, 1996, the insurer was ordered to pay the claimant's medical bills through September 29, 1993. The order neglected to include payments for such further medical treatments as were found to be appropriate by Dr. Wieneke and were approved in the decision.
THEREFORE, the Opinion of July 29, 1996, is amended to include an order that:
Lumber Mutual, or in the event of its default Pompanoosuc Mills, pay medical benefits for such further treatment as is necessary to determine if the claimant is suffering from bursitis and to treat any bursitis that is found.
DATED at Montpelier, Vermont this 5th day of September 1996.
________________________________
Mary S. Hooper
Commissioner
Smith v. Pompanoosuc Mills (July 29, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
David J. Smith File #: F-21371
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
Pompanoosuc Mills Commissioner
Opinion #: 47-96WC
Hearing held at Montpelier, Vermont, on June 10 and 18, 1996.
Record closed on July 1, 1996.
APPEARANCES
Kathleen London, Esq., for the claimant
John W. Valente, Esq., for the defendant
ISSUES
1. Whether the claimant has reached an end medical result from his work injuries of April 8 and 14, 1993.
2. Whether the medical treatment the claimant has received is reasonable and necessary.
THE CLAIM
1. Temporary total disability compensation pursuant to 21 V.S.A. §642 from April 9, 1993, and ongoing.
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).
STIPULATIONS
1. On April 8, 1993, and on April 14, 1993, the Claimant was an employee of Pompanoosuc Mills within the meaning of the Workers' Compensation Act.
2. On April 8, 1993, and on April 14, 1993, Pompanoosuc Mills was an employer within the meaning of the Workers' Compensation Act.
3. On or about April 8, 1993, and on or about April 14, 1993, Claimant suffered injuries arising out of and in the course of his employment at Pompanoosuc Mills.
4. The injuries Claimant suffered during the month of April 1993, constitute an aggravation of a pre-existing injury.
5. On August 20, 1984, Claimant suffered an accident while in the employ of Southwork Paint causing a broken scapula, injured hamstring and cut hand. The injuries were sustained as a result of a fall from a bucket. Claimant fell approximately 30-35 feet to the ground fracturing his shoulder. Between August 20, 1984, and April 1985, the injury resulted in the Claimant becoming temporarily totally disabled.
6. The Claimant began working at Pompanoosuc Mills on or about April 8, 1985. He began as a delivery person working approximately 50-70 hours per week. After a period of time, he was promoted to night shift foreman. In that job, he was a "working supervisor" supervising a small number of people who worked with him. The work consisted of brushing the second coat of finish on furniture and then spraying urethane on the furniture. On occasion, he would also be responsible for training new workers.
7. Late in the summer of 1990 Mr. Smith was promoted to overall supervisor of the finishing department. In this position he assumed more managerial type duties. At all times, he continued to be a "working supervisor." As the working supervisor, he coordinated with individuals in the rough mill to determine what work would be done by the next day. He would also coordinate trucks scheduled to make deliveries. He had seven to ten people working for him.
8. On April 8, 1993, Claimant made his first verbal report of injury to Pompanoosuc Mills.
9. On April 15, 1993, Claimant telephoned Dave Hood (an employee of Pompanoosuc Mills) at home to report his injury. The injury was then reported to Steve Davis at Pompanoosuc Mills who filled out the report of injury form for David Smith.
10. On April 27, 1993, the Claimant drove to Montpelier to deliver the report of injury form to the Department of Labor.
11. At the time of the injury and the time of Claimant's disability, he had one dependent.
12. Between October 1994 and December 1994, Claimant worked at the Grand Union. Claimant left work due to continued pain.
EXHIBITS
1. Joint Exhibit 1: Medical record notebook
2. Claimant's Exhibit A: Curriculum Vitae of Dr. Rex Carr
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 of Labor and Industry in this matter.
2. The claimant was working at staining bookcases toward the end of March 1993, when he experienced some weakness and loss of control in his left arm and shoulder. The claimant is left hand dominant. He made an oral report of his problem to Dwight Sargent, the president of Pompanoosuc Mills, on April 8, 1993. Then, on April 14, 1993, he experienced a muscle spasm with a lump the size of a softball under his left arm. This occurred while he was
sanding plywood.
3. The claimant went to see Dr. Delancy and did not return to work until April 19. As he started to work, he felt something snap in his back. He discussed his situation with Mr. Sargent, who told him that his problem was not work related. The claimant filled out a first report of injury, which Mr. Sargent declined to sign, and brought it to the Department.
4. On that same day, the claimant resigned his position with Pompanoosuc Mills, based on his inability to work and Mr. Sargent's refusal to report the injury. The claimant testified that he felt he had a responsibility to the company to either work or leave, and that he felt that he had no recourse. He did not want to leave Pompanoosuc Mills. In fact, in April of 1994, he applied for a sales position with Pompanoosuc Mills but was not rehired, allegedly because of his resignation in 1993.
5. The claimant treated with Dr. Delancy on a few occasions and was then referred to Dr. Charles Carr at the Hitchcock Clinic. The claimant reported to Dr. Charles Carr that he had been suffering shoulder pain for five years. Dr. C. Carr opined that the claimant was suffering from infraspinatus tendinitis, posterior capsular pain, and tightness. He believed that the claimant was suffering a soft tissue injury caused by overuse. He recommended a return to work which, if unsuccessful, would lead to a work hardening program.
6. In September, Dr. Charles Carr referred the claimant to Dr. Rex Carr, a physiatrist. (The two doctors are not related to each other.) On the recommendation of Dr. Rex Carr, the claimant underwent a work capacity evaluation in November of 1993, which determined that he had a sedentary work capacity. Dr. Carr disagreed with that assessment.
7. The claimant applied for and began to receive unemployment compensation in the fall of 1993. He testified that he told the case workers at the Department of Employment and Training that he was not able to work, but that they allowed him to receive unemployment anyway, as he had work experience in sales and supervision.
8. The claimant treated with Dr. Rex Carr on a monthly basis through June of 1994. During that period of time, he received anti-inflammatories, muscle relaxers, Prozac, and over-the-counter medications. He also received Klonidine to help with a sleep disorder diagnosed by Dr. Rex Carr. The claimant indicated that Dr. Carr was "trying to get the muscle calmed down." He testified that he has continuously improved since he first started treating with Dr. Carr.
9. In October of 1994, the claimant began to work part-time at Grand Union, stocking shelves late at night. His work entailed much work above shoulder level with his arms extended. As a result of this work, his shoulder got worse, and he finally had to quit in late December.
10. Shortly thereafter, the claimant began to work for Suburban Services in a janitorial capacity. The claimant had prior experience in this work, as he had performed similar services at the Dartmouth-Hitchcock Medical Center ("DHMC") while he was still working for Pompanoosuc Mills. Mainly he was dust mopping and cleaning bathrooms at Suburban. He may have missed a few days of work because of pain in his left shoulder and arm. The job at Suburban was less strenuous than the one at DHMC, and was only part-time.
11. In April of 1995, the claimant began to work at Aslan's Maintenance. This job was full time work. The claimant discussed doing this work with Dr. Carr, who told him that while it would not do any irreversible harm, it would slow his progress and might even set him back. The claimant has continued to work for Aslan's through the date of the hearing, averaging 50 hours a week, having received a promotion and with the opportunity for further advancement. The claimant has noticed an increase in symptoms whenever he works over his head, and he tries to avoid such work whenever possible.
12. The claimant used to participate in bowling and softball recreationally. He has not done so since the injury at Pompanoosuc Mills. He also attempted to take a course in computers through the state vocational rehabilitation program. However, he was unable to complete it because of pain in his left shoulder.
13. Dr. Rex Carr testified in this case. He indicated that the claimant was suffering from myofascial pain syndrome with a secondary sleep disorder. He testified that the goal of his treatment was to reduce "perpetuating factors" that adversely impacted on the claimant's myofascial pain. He based his diagnosis of the claimant's sleep disorder on the claimant's self reports, as well as his own observation of the claimant's condition and behavior. He
also relied on the claimant's wife.
14. With regard to the work capacity evaluation, Dr. Carr acknowledged that he ordered the test. He indicated that a work capacity evaluation was the "gold standard" for determining a patient's functional capacity. However, having ordered the test, he disagreed with the results, and testified that the test was not an adequate measure of the claimant's ability to work.
15. Dr. Carr was aware that DHMC conducts formal sleep studies for the diagnosis of sleep disorders. Dr. Carr did not refer the claimant for such a study, although he did use DHMC for other tests and studies. Dr. Carr conceded that stress in the family could cause sleep difficulties, and was aware that the claimant was having marital difficulties, including a separation from his wife, at the time he treated him. However, he remained fast in his opinion that the claimant's "sleep disorder" was caused by his work injury. He conceded that the claimant was frequently sleeping eight hours a night, although he did not feel that it meant necessarily that the claimant was getting restorative sleep.
16. Dr. Carr testified that it was medically inappropriate for the claimant to be working in this case, notwithstanding the fact that the claimant has been gainfully employed for the bulk of the time he has been treated by Dr. Carr, who has not reported any decline in the claimant's condition. He also indicated that the claimant should not be doing exercises, as they would further tire him, given his work schedule.
17. The claimant was seen by Dr. Kuhrt Wieneke at the request of the insurer. Dr. Wieneke opined that the claimant was suffering from bursitis, not a myofascial pain syndrome. Dr. Carr indicated that he disagreed with Dr. Wieneke's diagnosis, because the history and the findings belie it, although he did not elaborate on that opinion. He testified that most orthopedists are unfamiliar with myofascial pain, and hence do not recognize its signs. He stated that orthopedists are taught that crepitus means bursitis. However, Dr. Carr never even noted that the claimant had crepitus.
18. Dr. Carr testified that he diagnoses myofascial pain syndrome or fibromyalgia in most of his patients. He admitted that he has in the past diagnosed himself as suffering from myofascial pain. He also admitted that he finds sleep disorders in most of his patients.
19. Dr. Carr admitted to the following exchange from his deposition, regarding the reason for his leaving his position as the Director of the Physical Rehabilitation Department at DHMC:
Q. And you left there, you resigned from Hitchcock?
A. Yes.
Q. And why was that, Dr.?
A. The reason that I resigned was because my supervisor asked me to pay closer attention to the needs of employers, even if it meant a reduced fee or less clinical care to the patient
(emphasis added).
20. When cross-examined Dr. Carr declined to answer a series of questions that called only for a simple yes or no answer. He indicated that he could not do so, even when the question was as simple as whether the claimant could perform any work at the time of his first visit to Dr. Carr. While he repeatedly offered to explain his inability to answer the questions, he declined to respond in a manner required by the nature of the question. As an example, he responded that he had no opinion that the claimant was capable of working as of September 30, 1993, that he had no opinion that the claimant was incapable of working on that same date, but that he did have an opinion that he wished to state. On redirect examination, claimant's counsel did not offer Dr. Carr an opportunity to offer the opinion he wished to give.
21. Dr. Wieneke testified as to his examination of the claimant on April 12, 1995. He found that the claimant had crepitus on virtually his full range of motion of his left shoulder, with no muscle atrophy. He could feel that the scapula was out of alignment, which was consistent with the claimant's serious prior injury. This was also consistent with inflammation of the large bursa that sits under the scapula. He indicated that the misalignment was readily palpable, and also apparent on x-rays. Dr. Wieneke also indicated that the position at Grand Union was inappropriate for the claimant, because it involved repetitive over the shoulder work.
22. Dr. Wieneke disagreed with Dr. Carr's diagnosis of myofascial pain syndrome. He indicated that myofascial pain is neurologically mediated, and that there was no evidence of a neurological deficit. He testified that "myofascial pain looks different to different clinical observers" and "people who treat myofascial pain tend to see a lot of myofascial pain." As a result, he questioned the diagnosis.
22. Dr. Wieneke indicated that there was a method of treatment of the claimant that could be diagnostic as well as therapeutic, involving an injection of depomedrol and marcaine into the bursa. The depomedrol shot is quite painful, although its long term effect will be to reduce inflammation in the effected bursa. Therefore, the marcaine is used as an anesthetic, which has the fortuitous by-product of numbing any pain that is generated by the bursa. If, after the injection, the patient reports an absence of his characteristic pain, then it localizes the pain to the inflamed bursa. The claimant has never had this procedure performed. Specifically, Dr. Carr has never recommended this injection.
23. Dr. Wieneke opined that rest and lack of exercise are not appropriate treatments for bursitis. An exercise program is the correct treatment, when coupled with an anti-inflammatory.
24. Finally, Dr. Wieneke found that there was no ratable difference between his findings of April 12, 1995, and those made during the work capacity evaluation of November of 1993. Accordingly, it was his opinion that the claimant was at an end medical result on November 19, 1993.
25. The claimant has produced evidence of his attorney's work on his behalf for 129.25 hours, as well as costs in the amount of $1,641.45. The claimant has not produced his fee agreement for his attorney's services.
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 hinges on the credibility of the respective physicians. I find Dr. Wieneke to be more persuasive. Specifically, I find that his determination that the claimant's physical condition has not materially altered since the time of the work capacity evaluation is compelling evidence of the inadequacy of Dr. Carr's treatment. See, e.g,., Billard v. Agway, Opinion No.73-95WC.
4. I do not find Dr. Carr credible. I am concerned by his admission of a profit motive in his treatment of claimants. His response at his deposition placed his potentially reduced fee before his concern for the treatment of his patient. I find remarkable his refusal to refer the claimant to the DHMC sleep clinic. If in fact the claimant had actually a sleep disorder, this 8ould have been a reasonable diagnostic step. Given the claimant's regular pattern of 7 to 8 hours of sleep and given Dr. Carr's statement regarding his potentially reduced fee, the credibility of his testimony is seriously impugned.
5. I am also concerned by Dr. Carr's unwillingness to answer seemingly straightforward questions of a yes or no variety. His attempt to control the hearing process was futile, but left the trier of fact with the impression that Dr. Carr's own agenda, whatever it was, was more important to him than his advocacy for his patient. Given that the questions were never answered, he lost an opportunity to assist his patient in his case.
6. Finally, given that a simple injection would have either confirmed or denied the accuracy of Dr. Wieneke's diagnosis, it is interesting that Dr. Carr, as the claimant's treating doctor, did not recommend that the injection be attempted. If it succeeded, then Dr. Carr's patient would have a correct diagnosis, and appropriate treatment would offer some hope of improvement in his condition. If it failed, it would tend to confirm Dr. Carr's own opinion. In other words, it would be a positive result in any event, and yet Dr. Carr did not adopt the suggestion. His failure to do so is disturbing indeed.
7. Much of the difficulty in this case arises from the way it was mishandled by the employer at its onset. Because of the delay in reporting the injury, and the refusal to accept the claim when initially reported to the employer, the claimant was placed in the position where he had to quit his job and seek unemployment benefits. It is noteworthy that the claimant made a valiant effort to find work on his own, and he will not be penalized for seeking unemployment benefits. However, to the extent that he is awarded workers' compensation benefits for any period of time for which he already received unemployment benefits, he has an obligation to repay those unemployment benefits.
8. The claimant is not yet at an end medical result. Dr. Wieneke has confirmed that there is treatment available to the claimant that holds out some hope of improvement. However, I do not find that any of the treatment of Dr. Rex Carr has been reasonable or necessary. The claimant is entitled to an award of temporary total disability benefits until his employment at Grand Union, when he became entitled to temporary partial disability benefits. Benefits were to be paid until the claimant returned to full time work at Aslan's Maintenance in April of 1995. The claimant was working part time at DHMC when he was injured. Wages from DHMC are to be included in calculating the claimant's average weekly wage.
9. The claimant has not complied with the requirements of Rule 10(g) of the Workers' Compensation and Occupational Disease Rules, in failing to file a copy of his fee agreement with the Department of Labor and Industry. Moreover, while the claimant has prevailed at least minimally, he has not done so on the basis for which he sought a hearing. Attorneys' fees therefore will not be awarded. However, even with the minimal level of success, he is entitled to an award of costs in the amount of $1,641.45.
ORDER
THEREFORE, based on the foregoing findings of fact, it is hereby ordered that:
1. Lumber Mutual, or in the event of its default Pompanoosuc Mills, pay temporary total and partial disability payments from April 19, 1993, to the date of the claimant's employment at Aslan's Maintenance;
2. Lumber Mutual, or in the event of its default Pompanoosuc Mills, pay medical bills up to September 29, 1993;
3. Lumber Mutual, or in the event of its default Pompanoosuc Mills, pay costs in the amount of $1,641.45; and
4. All other claims are denied.
DATED at Montpelier, Vermont this 29th day of July 1996.
________________________________
Mary S. Hooper
Commissioner