Stone v. Pleasant Manor Nursing Home

Stone v. Pleasant Manor Nursing Home (June 3, 1996)

STATE OF VERMONT

DEPARTMENT OF LABOR AND INDUSTRY

Rebecca L. Stone File #: H-8839

By: Barbara H. Alsop

v. Hearing Officer

For: Mary S. Hooper

Pleasant Manor Nursing Commissioner

Home

Opinion #: 34-96WC

Hearing held at Montpelier, Vermont, on April 19 and 22, 1996.

Record closed on April 29, 1996

APPEARANCES

Edward L. Winpenny, Esq., for the claimant

Frank E. Talbott, Esq., for the defendant

ISSUES

1. Whether the claimant's chronic pain syndrome is compensable.

2. Whether the claimant had reached an end medical result as of April 27, 1995.

3. Whether the medical and psychological care provided by Dr. Carr and Dr. Hamdi is reasonable and necessary.

THE CLAIM

1. Temporary total disability compensation pursuant to 21 V.S.A. §642 from April 27, 1995, 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 October 20, 1994:

A. The claimant, Rebecca Stone, was employed by Pleasant Manor Nursing Home as a Nurse Aide.

B. While assisting a resident, another resident came into the room where the claimant was working and pushed the claimant to the ground.

C. This accident resulted in an injury arising out of and in the course of employment.

2. The claimant's average weekly wage for the twelve weeks preceding the injury was $220.38. The claimant's weekly net income at the time of the accident was $203.52.

3. The claimant began loosing [sic] time from work on October 30, 1994.

4. On April 27, 1995, the defendant or its workers' compensation carrier stopped paying the claimant temporary total disability compensation on the basis that Dr. Kuhrt Wieneke issued a report that the claimant could return to work.

EXHIBITS

1. Joint Exhibit 1: Medical record notebook

2. Joint Exhibit 2: Deposition of Dr. Rex Carr, dated March 26, 1996

3. Claimant's Exhibit 1: Typewritten comments by claimant regarding the videotape, Defendant's Exhibit 3

4. Defendant's Exhibit 1: Deposition of Rebecca L. Stone, dated March 13, 1996

5. Defendant's Exhibit 2: Trade name registration

6. Defendant's Exhibit 3: Videotape prepared by Downeast Investigative Services, February 14, 1996

7. Defendant's Exhibit 4: Downeast Investigative Services written report

8. Defendant's Exhibit 5: Letter from Dr. Peter D. Upton, dated April 1, 1996

9. Defendant's Exhibit 6: Handwritten note of Janet LaBelle

FINDINGS OF FACT

1. The above stipulations are adopted as evidence and the above referenced exhibits are admitted into evidence.

2. On the date of the injury, the claimant treated with a chiropractor, Dr. Diekel, prior to the injury. His impression was a mild thoracic strain with associated myospasms, based in part on the claimant's complaint of lower mid-back pain for a few days.

3. After the injury on October 20, 1994, the claimant went to the Rutland Regional Medical Center, where x-rays revealed no fracture. However, the claimant had been told by the emergency room physician, prior to radiography, that she might have a fractured coccyx. The claimant has continued to tell providers since that time that she had fractured her coccyx in the accident. The claimant reported at the emergency room that she had a prior history of chronic lower back pain.

4. Later that day, the claimant went to Castleton Health Associates, her regular physician's office, where she indicated that she wanted to return to work. She was told she could return to work on October 25, 1994. She was also told to continue on Zoloft. The claimant called back a few days later, complaining of increased back pain and indicating that her employer had said that she could see a specialist if Castleton referred her. Thereafter, she was referred to Mid Vermont Orthopaedists. There is no record from Mid-Vermont Orthopaedists until January 11, 1995.

5. On November 2, 1994, the claimant went to Dr. R. C. Ashcroft, a chiropractor, who took a history of her prior problems that included depression, nervousness, left arm and hand pain, and prior chiropractic treatments for neck and back problems. The claimant did not apparently advise Dr. Ashcroft that she was also still treating with Dr. Diekel. Dr. Ashcroft's diagnosis was "Lumbar sprain/strain - Is very flat footed and needs orthotics as she can't stand without pain." He kept her out of work until November 7.

6. When the claimant returned to see Dr. Ashcroft two days later, she was nearly symptom free. She has some slight mid back pain, but her low back pain was about gone. He was sufficiently encouraged to send her back to work for three days, the remainder of the week. He sent a letter to her employer indicating that she was released to work as of November 9, 1994, "pending any further problems."

7. The claimant returned to Dr. Diekel on November 14, 1994, and advised him of her injury. His diagnosis on that day, less than a month after he last saw her, was of a thoracolumbar strain with associated myospasms, virtually the same diagnosis as pre-injury.

8. The next day, the claimant returned to Dr. Ashcroft. He found that she was suffering still from lumbar strain/sprain as well as cervical radiculitis. The claimant reported to him that she had tolerated work well, but noticed the increase in symptoms on the Saturday, November 12. Without reference to the prior day's visit to Dr. Diekel, Dr. Ashcroft noted that the pain in her neck was much worse that morning, i.e. November 15.

9. Within three days, the claimant was much improved in her back, but was reporting once again the aching in her feet. She requested to be cast for orthotics. Over the next two weeks, the claimant returned on a number of occasions, finally being fit with orthotics on November 30, 1994. Her complaints over this period of time involved pain and aching in her left leg, as her back complaints were nearly gone.

10. On December 5, 1994, the claimant reported to Dr. Ashcroft that her pain was gone, and that she was much improved. Based on those representations, he released her from care with instructions to call if there were any further problems.

11. On December 7, 1994, the claimant reported to a coworker at the nursing home that she had reinjured her back after tripping over a stump at home. She indicated that she was not able to do heavy work, and wanted to be assigned to light duty tasks. The claimant denies making this report, and the evidence relating to that denial is discussed, infra.

12. On December 9, 1994, the claimant returned to Dr. Ashcroft, whose notes state: "Rebecca presents today stating that her Left Leg is going out on her again. She was fine and had no problems until yesterday. Was able to work normally. Has been able to do all her duties but at the end of the day her leg starts to ache and buckle on her. Will put her out of work until the 19th." The notes are silent as to a trip over a tree stump.

13. Over the next week, the claimant saw Dr. Ashcroft twice. She was once again improving greatly. Dr. Ashcroft recommended that she get a new bed or fix the old one with plywood. Then, on December 20, she called indicating more back problems and was referred once again to Mid-Vermont Orthopaedists.

14. On January 11, 1995, the claimant was seen at Mid-Vermont Orthopaedists by Dr. David H. Bahnsen. He found nothing of significance in his physical examination of the claimant, in spite of her significant complaints of diffuse pain that were much more extensive than her prior reports of pain to Dr. Ashcroft. He recommended physical therapy, and then a consult with Dr. Dier, a rheumatologist, if the therapy was not effective.

15. The claimant then went to physical therapy with Vermont Sports Medicine Center, where she was found to be a severely de-conditioned female with significant flexibility and strength deficits. However, it was noted that she continued with full participation at work and was able to do all activities of daily living. The claimant reported that physical therapy caused excruciating pain, and that it debilitated her further.

16. As a result of her failure at therapy, the claimant was referred by her physician to Dr. Peter D. Upton, a neurosurgeon, on February 16, 1995. Dr. Upton opined that the claimant was suffering from a soft tissue injury which should have healed in the four months since the accident. He suggested an MRI to rule out pathologies, and upon a negative finding, to send the claimant back to physical therapy. As a last resort, he recommended a program like the Spine Institute, where an aggressive approach might resolve her ongoing complaints. He noted that "The fact that it's workman's [sic] compensation complicates this a great deal."

17. On February 24, 1995, the claimant was seen by Dr. Clifford B. Smith, an internist, who reported that the claimant had "severe, unremitting pain in the lower back and down into the anterior aspect of the left leg to the level of the knee." He set up an appointment for the claimant with the Spine Institute for March 10, 1995. There is no evidence that the claimant ever went to the Spine Institute, in spite of the recommendations, days apart, of two different physicians, neither of whom was hired by the insurer.

18. Also on February 24, 1995, Dr. Bahnsen received and reviewed the claimant's x-rays from the date of the injury. Although he saw on the x-rays some evidence of SI joint arthritis, this did not correlate well with her complaints of pain. He reiterated the possibility of a referral to a rheumatologist in the event that physical therapy was unsuccessful.

19. On April 4, 1995, at the request of the insurer, the claimant was seen by Dr. Kuhrt Wieneke, an orthopedic surgeon. He found no evidence of neurological deficits, and determined that her complaints were in fact caused by pelvic ligament inflammation secondary to the "coccygeal fracture" (sic). He opined that the excessive length of the healing process was due to prior damage to the broad ligaments and pelvic floor ligaments in her hysterectomy of March 22, 1994. He was confident that the claimant could return to work on a half time basis, although he indicated that she would continue to have pain complaints as her ligaments were strengthened. He made very specific recommendations about the working conditions she could tolerate. He also strongly recommended that she lose the 40 pounds she had put on since the hysterectomy.

20. Based on Dr. Wieneke's report and the claimant's failure to return to work as advised, the claimant's benefits were terminated, effective April 27, 1995. The claimant denies working at any time after that date.

21. The claimant did not treat again for her claimed injury until September 1, 1995. On that date, she went to Castleton Health Associates and saw Dr. Michael Bell. Her purpose at the appointment was to obtain a referral to Dr. Rex Carr. She indicated that she had retained an attorney at her mother's urging, and she was tearful in describing her symptoms. However, the physical examination was negative, and any questionable areas were in the arena where effort on the claimant's part was required. Dr. Bell's assessment was "Chronic low back pain, S/P work injury'. I am unable to pinpoint the exact cause of all of her diffuse pain (extending from the neck down to her feet). Clearly her prognosis is poor given that she has been out of work for 11 months and has litigation pending."

22. On September 27, 1995, the claimant treated with Dr. Carr for the first time. Dr. Carr testified at deposition and at the hearing in this case. Dr. Carr, based on his initial examination of the claimant and her report of her prior medical history and treatment, opined that her complaints arose out of her work injury on October 20, 1995, and that she was in all likelihood suffering from myofascial pain with a secondary sleep disorder. He indicated that she would not be able to perform any meaningful employment, as she could not sit or stand for any prolonged period of time, and only on a good day would she be able to perform even two hours of work.

23. The claimant in her history to Dr. Carr denied any recent medical treatment prior to her injury. Although she advised him of her prior injury to her back in the 1980s, she indicated that she last treated with a chiropractor in 1988 prior to the injury of 1995. This was disingenuous at best. The claimant had treated over the summer of 1995 with two different chiropractors, and had treated on the very date of the work injury. Dr. Carr did not become aware of the claimant's prior chiropractic treatments until his deposition on March 26, 1996.

24. Dr. Carr testified that he had to rely on the claimant's subjective reports of pain in order to establish the diagnosis of myofascial pain. He indicated that he would have been "dependent upon her describing the distribution of the pain to [him]." Similarly, upon being confronted with her prior chiropractic records, he opined that her pain was different from that suffered earlier, again based on her description of the pain and her response to treatment. In particular, he stated it was significant that her prior problems never caused her to miss work. However, the record is silent as to whether or not she had missed work in the past because of her back problems.

25. In testifying that his review of the prior records did not change his opinion with regard to the causation of the claimant's myofascial pain, Dr. Carr indicated that he considered the diagnoses of the prior physicians, the frequency of treatment, the distribution of the pain, and the fact that the claimant did not need to miss work. When cross-examined about the specifics in the prior medical records, Dr. Carr agreed that many of her symptoms had been referenced in the earlier records, but denied that the distribution of the pains had ever been the same. He also indicated that the claimant's problems had always resolved quickly with the prior treatments, and after the injury she needed much more treatment. It is not clear whether this observation was made based on his review of the records or on the claimant's report. Dr. Carr did not comment on the fact that the claimant was visiting a number of different providers at the same time, and not following their advice. He also did not comment on the six or seven months without treatment prior to his first appointment with the claimant. He did not consider it significant that the claimant had been treating for a host of similar symptoms since May of 1994, some five months prior to the work injury and arising shortly after her hysterectomy. Finally, Dr. Carr never testified about the stump incident that allegedly occurred on December 7, 1995, immediately prior to a substantial increase in the complaints of the claimant.

26. Dr. Carr referred the claimant to Dr. Mark Hamdi, a psychologist whose academic research involved myofascial pain problems. Dr. Hamdi saw the claimant three times in December and early January, and then did not see the claimant again until March 21, 1996. In the earlier treatments, he taught the claimant self-regulation techniques, and on January 9, 1996, he reported that she was sleeping better, and was having success with the self-regulation exercises. He diagnosed her as having a dysthymic disorder with an adjustment disorder with acute anxiety.

27. Dr. Hamdi defined dysthymia as a depression lasting for at least two years, never symptom-free, and never for less than two months with clinically significant distress. The claimant's injury had occurred only 14 months prior to this assessment. Dr. Hamdi relied on a Dr. Foley's diagnosis of depression in January of 1994 in making this diagnosis.

28. When Dr. Hamdi next saw the claimant on March 21, 1996, she was "discombobulated" and in a seriously depressed state. There was a marked deterioration since her prior visit. She had missed at least three appointments in the interim, and he would normally have scheduled her for between five and ten appointments during that time span. The first time that he noted any difficulties with her ability to remember things was at the appointment of March 27, 1996. The claimant's deposition was on March 13, 1996, and she received her copy of it sometime between March 21 and March 27. Dr. Hamdi attributed her increased symptoms to her concern for the proceedings before the Department and indicated that her problems were either caused or aggravated by her myofascial pain syndrome.

29. Dr. Hamdi's opinions in this case are based on the diagnosis of Dr. Carr. Without the diagnosis by Dr. Carr, he cannot make a causal connection between the claimant's psychological problems and the work injury. The most he could say with assurance was that the claimant's symptoms are consistent with a diagnosis of myofascial pain.

30. When asked if the claimant's severe depressive incident after her deposition could have occurred because the claimant was caught out in a lie, Dr. Hamdi testified in the affirmative. He has not seen the videotape admitted into evidence at the hearing, and was unaware of any allegations that the claimant was a part owner or was working at the flower shop until after the deposition.

31. The claimant, her husband and a friend testified as to the claimant's extensive disability. The friend, Mary Hutchinson, has bowled with the claimant for ten years, and has been a social acquaintance. The two women have visited each other's home over the years. Since the claimant's disability, Ms. Hutchinson has visited the claimant at home about once a month. Ms. Hutchinson has witnessed the claimant's pain behaviors such as the rubbing of her legs, the clutching at her back and facial distress. She testified that the claimant has not improved since immediately after the accident in 1994, and her complaints have been consistent.

32. Around the time of Valentine's Day of 1996, Ms. Hutchinson worked for a few days at the claimant's and her husband's flower shop. She testified that she worked four days, while Mr. Stone testified that she worked three days. She indicated that the claimant was at the store for parts of three days and all day on Valentine's Day, and that she would answer the telephone, dethorn roses, water plants, and wait on customers. On Thursday the 15th, the claimant drove the van while Ms. Hutchinson delivered flowers.

33. The claimant and her husband registered the trade name of the flower shop as The Little Flower Shoppe, effective May 5, 1995. Mr. Stone testified that they bought at about that time, and that he did all the work in the shop. On holidays, he would arrange for additional help. On Valentine's Day, the claimant was at the shop, and she answered the telephone and waited on a few people. She got some flowers out of the cooler, but she also sat down a lot. She seemed to be in great pain. He testified that Valentine's Day was the only day she managed to stay at the store all day. He indicated that she would not be a dependable employee, and that she did not know how to arrange flowers or make bows. He had tried to teach her to make bows, but her fingers cramped up.

34. Mr. Stone also testified to the claimant's inability to perform tasks that she previously had enjoyed prior to the injury. Specifically, he testified that she could not go to the mall without intense pain, nor could she garden, or continue her craft of refinishing furniture. He indicated that she does not have a vehicle and needs someone to drive her. He also said that she had problems with her memory, not remembering things she told her kids from one minute to the next.

35. The claimant testified to her condition before and after the injury. She indicated that the difference between her earlier problems and those arising from the work injury is that in the latter case the pain has not subsided and she has not gotten better. Moreover, the pain since the injury is much more intense. She indicated that the pain has been consistent since the injury, although she will have good days and bad days. She specifically testified that the pain frequency and intensity are the same since the injury. She recalled only two days pain free since the injury. If she paces herself properly, something she is learning from Dr. Carr and Dr. Hamdi, she can be more active. She has to learn to stop and rest for between five and fifteen minutes on days when she is active.

36. A primary issue at the hearing was the claimant's credibility. The evidence on that issue involved principally her testimony at her deposition, and the discrepancies between that testimony, her "errata sheet" and her testimony at hearing. The "errata sheet" was prepared about a week before the hearing, and purported to correct answers "after treating with Dr. Hamdi and reviewing all medical records to the best of my ability." The claimant alleged that she was unprepared for the deposition, and had not reviewed any of the material in her file prior to her testimony. However, some of the changes she made in her errata sheet have been negated by her testimony at hearing.

37. Many of the claimant's changes involve the work she did at the flower shop. At her deposition, the claimant testified that she could not do much at the shop, limited to answering the telephone infrequently and occasionally taking a customer's money. After the deposition, the claimant became aware that she had been videotaped in the store on Valentine's Day. Thereafter, in both the errata sheet and her testimony at the hearing, she testified that she did things that she specifically denied at her deposition. Included in this was her denial of lifting any plants down from over her head. In the videotape, the claimant is seen lifting down an overhead plant for a customer. In fact, in the videotape the claimant is seen performing all of the tasks of a shop assistant without any apparent difficulty.

38. The claimant makes much of certain gaps in the videotape. The tape is a one hour tape covering four hours at the store, and hence some gaps are to be expected. The claimant alleges that in every gap, she has had to sit down, and the tape has been turned off to conceal that fact. In fact, she is shown to be sitting on a stool a number of times on the videotape. She is also shown to be bending and lifting plants without difficulty, to be reaching into a cooler and bringing out cut flowers, and other tasks inconsistent with her claims of disability.

39. The investigator who made the tape, Peter Cunningham, had the opportunity to talk with the claimant. He pretended to be a customer and engaged her in conversation to insure that she was the person he was supposed to target. He ascertained that she used to be a nurse's aide, which comported with his information, and she told him spontaneously that "I like this better than my old job." He did not notice any signs of physical stress, and did not notice the claimant sitting down and rubbing her legs. He testified that he was in the store for about 38 minutes total.

40. The claimant reviewed the videotape prior to testifying. She prepared an index of the tape, noting that the film stopped when she sat down regularly. Virtually every gap in the film is alleged to be a time that the claimant had to sit down. However, frequently when the tape restarts, the claimant is not near her stool, and the inference is that she has been moving around. During one gap, the claimant indicated that she was in the bathroom taking an ibuprofen. This is an allegation peculiarly not susceptible to proof, but also one that would not have appeared on the videotape in any event. It is hard to imagine that an investigator would follow a subject into a bathroom.

41. The claimant testified that she did not recall making any report about an incident with a tree stump. No incident with a tree stump occurred, according to the claimant. She claimed to have a poor working relationship with Janet LaBelle, the reporter of the incident. The claimant indicated that she frequently found Ms. LaBelle sitting down on the job, the claimant would call her on it, and this caused stress between them. Ms. LaBelle denied any particular problems with the claimant, and indicated that the claimant's purpose in making the report was to obtain an easier assignment at work. Ms. LaBelle did not know the details of the claimant's work injury, and made the report only because the claimant had missed some work recently.

42. Ms. LaBelle further testified that she has a second job at Ames Department Store, where she is the service desk supervisor. She has seen the claimant in Ames, although not recently, and the claimant did not appear to be having any difficulty in shopping. Additionally, after the incident of October 20, 1994, she never particularly noticed that the claimant had any difficulty at work. She denied that she and the claimant had any personal differences, and indicated that they got along at work, even if they were not personal friends.

43. Dr. Upton, who saw the claimant in 1995 at the request of the claimant's treating physician, testified at the hearing. He indicated that he had reviewed all of the medical records which have been introduced into evidence, as well as the videotape of the claimant. He has not seen the claimant since February 16, 1995. However, based on his review of the records and the videotape, he is unaware of any injury that disables the claimant from working. He testified that Dr. Wieneke's opinion as to the date of end medical result is in all likelihood correct. When asked if the claimant's reports of pain were consistent with the mechanism of the injury reported, he opined that practically any injury is consistent with any complaint of pain, because pain is subjective.

44. Dr. Upton indicated that he thought the claimant's reports of pain were "pretty dramatic." She told him that she would get great pain "out of the blue" and would not be able to move for ten minutes, all after reporting to her doctors that she was pain free and after she had returned to work. He indicated that a patient's basic emotional state can color how pain is experienced, and it was clear that the claimant was in rough emotional state when he saw her. He did not discount that she was feeling pain. in fact, it was his opinion that she had been in pain for many years prior to the injury, based on the medical records, and she probably still does feel pain. Her current difficulties are consistent with her prior history.

45. In Dr. Upton's opinion, the original injury was musculoligamentous, and most people would heal from an injury of this nature within six weeks. He also indicated that the recovery period would normally be determined by the severity of the original injury. Given the lack of objective evidence of injury in this case, it was not a severe injury.

46. The claimant has produced on the issue of fees and costs an affidavit from her attorney. The affidavit asserts, without itemization, that the claimant's attorney has spent 82.7 hours in his representation of the claimant. This is not an adequate showing pursuant to Rule 10(g) without which fees cannot be awarded. The costs, adequately supported in the amount of $756.10 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 claimant has failed to meet her burden of proof. First, the videotape, in spite of her protestations to the contrary, does not support her claim of inability to work. Secondly, her testimonial inconsistencies, particularly in regard to her deposition and her corrections to the

deposition, render her evidence suspect at best. Thirdly, her inability to report accurately under oath her history raises serious questions about the information she has given physicians who have rendered opinions on her behalf in this case.

4. In particular, Dr. Carr's testimony was at least initially based on faulty information about the claimant's prior medical history. His drawing of a connection about symptoms that he saw for the first time on September 27, 1995, with an injury of October 20, 1994, was almost exclusively derived from the claimant's report of her treatment in the intervening period. However, she never told Dr. Carr that she had been symptom free, and only complaining about an unrelated problem with her feet to the chiropractor who had assumed her primary care after the injury within a month of her first treatment with him.

5. Dr. Carr's testimony was further compromised by his failure to account for the claimant's failure to treat for almost seven months prior to his first appointment with her. Faced with similar gaps in her prior medical history, he indicated that she had "recovered" from her difficulties, yet he made no similar assumption in this case.

6. Finally, Dr. Carr's failure to account for the evidence in Dr. Diekel's records calls into question the integrity of his opinion in this case. Dr. Diekel treated the claimant on the same day as the injury, but prior to the incident. He then saw her three weeks later, and her symptoms were virtually identical to those from which she suffered prior to the injury. At the time of the later appointment with Dr. Diekel, the claimant had also reported to Dr. Ashcroft that she was virtually pain free. It strains credence to claim that the claimant's later pain complaints and psychological problems were any more related to her work injury than to any other part of her life. Whether or not the trip over the tree stump occurred, an incident incidently never reported to Dr. Carr, there is no explanation why the claimant, who had apparently healed in the normal course of time for her soft tissue injury, suddenly acquired the dramatic symptoms she began to report at the beginning of the new year.

7. Dr. Hamdi's testimony does not assist the claimant. He indicated that his opinion correlating the claimant's psychological problems with the work injury was dependent upon Dr. Carr's opinion that the claimant's myofascial pain was related to the injury. While Dr. Hamdi could with confidence correlate the mental damage to the myofascial pain, he had no independent opinion as to the cause of the myofascial pain.

8. The evidence of the medical records of those providers who dealt with the claimant in the four to six months after the incident uniformly report unexplained and excessive pain behaviors without anatomic cause. At least some providers correlate those behaviors with injuries and a surgery predating the claimant's work injury. The medical records prior to the injury confirm many of the findings after the injury. There is simply no basis on which I can find that the work injury materially contributed to those pain behaviors.

9. The claimant not having prevailed is not entitled to an award of her costs.

ORDER

THEREFORE, based on the foregoing findings of fact and conclusions of law, the claimant's request for further benefits under the Workers' Compensation Act is denied.

DATED at Montpelier, Vermont this 3rd day of June 1996.

_________________________

Mary S. Hooper

Commissioner