Mayhew v. PCI of Vermont  (Jul. 30, 1999)

                             STATE OF VERMONT
                     DEPARTMENT OF LABOR AND INDUSTRY


				)	File No. E-15248
				)	
Raymond Mayhew			)	By:	Margaret A. Mangan
				)		Hearing Officer
	v.			)
				)	For:	Steve Janson
PCI of Vermont			)		Commissioner
				)
				)	Opinion No. 33-99WC

Case submitted on legal briefs and medical exhibits.
Record closed on December 7, 1998.

APPEARANCES:

David A. Gibson, Esq. for Raymond Mayhew
John W. Valente, Esq. for PCI of Vermont

ISSUES:

1. Does the Form 22 settlement bar modification of a permanent partial
impairment rating?

2. If not, what is the extent of the claimant's impairment as it relates to
his claim for  permanent partial impairment?

3. What is the proper application of the AMA Guides to the Evaluation of
Permanent  Impairment, 4th Edition to the claimant's particular injury?

EXHIBITS:

I:	Claimant's Medical Records
II:	Transcript of telephonic deposition of Raymond Mayhew taken 
        April 23, 1998
III:	Transcript of telephonic deposition of Dr. Mark P. Harmeling taken 
        June 1, 1998
IV:	Transcript of telephonic deposition of Dr. Rick E. Parsons taken 
        August 3, 1998

FINDINGS OF FACT:

1. Claimant was an employee of defendant, PCI of Vermont, within the meaning
of the  Vermont Workers' Compensation Act (Act) on February 14, 1992.

2. PCI of Vermont was the employer of claimant within the meaning of the Act
for the  relevant time period covered.

3. Claimant worked as an assembler for PCI of Vermont.  The job involved
sub-assembly of  components and finished assembly of large case goods, such
as hutches.  The job  required lifting of components, screwing the components
together, and carrying the cases  to the finish room.  On February 14, 1992
claimant injured his right shoulder while  carrying large case goods to the
finish room.

4. This injury resulted in a period of temporary total disability for the
claimant.  Temporary  total disability payments were discontinued on
September 10, 1993.

5. A Form 22 Permanent Partial Impairment Agreement was subsequently filed on
October  13, 1994 and the Commissioner approved this settlement on January
19, 1995.  The  settlement had a beginning date of May 12, 1994, indicating a
medical end result at this  point, and assessed a 25% impairment to the
claimant's right shoulder.  This rating was  adopted from the 25% impairment
found by the claimant's treating physician, Dr. Hayer,  on May 13, 1994. 
This rating was the highest of several evaluations conducted.

6. Claimant voluntarily moved to Tennessee and began working in a home
slate-tile  business in 1995.  The business required the claimant lift, cut,
shape and drill slate tiles in  a repeated fashion.  Claimant worked on the
tiles seven days per week, but for only 2-3  hours per day.

7. After moving, claimant began treating with Dr. Harmeling, a board
certified orthopedic  surgeon, on a regular basis.  Dr. Harmeling found that
the claimant's work at home  exacerbated his prior injuries and recommended
surgery to the claimant.  The surgery  was performed on January 31, 1996 at
Baptist Hospital in Newport, Tennessee.  The  procedure resulted in the
removal, and reinsertion, of a bone from the shoulder joint to  allow freedom
of movement to the rotator cuff.

8. Following surgery the claimant progressed well and was able to return to
his home  business.  After about six months conditions deteriorated in
claimant's shoulder joint and  some snapping sensations appeared.  Dr.
Harmeling performed a second surgery, called a  Mumford Procedure, on January
3, 1997.  The surgery removed a small section of the  distal clavicle so the
surfaces of bone could no longer articulate.

9. Following the second surgery the claimant was able to work for 4-5 hours
per day on his  slate tiles.

10. Dr. Harmeling conducted an impairment evaluation of the claimant, based
on his own  medical records and a report from the Tennessee Orthopedic
Clinic, on March 3, 1998.   Dr. Harmeling assessed a 50% impairment to the
claimant's upper-right extremity by  utilizing Section 3.1 of the AMA Guides
to the Evaluation of Permanent Impairment, 4th  Edition (Guides).  Dr.
Harmeling believes this was the correct section to use because he  found no
limitation on the claimant's range of motion and based on that finding the 
claimant would have no "disability."  Instead, he opined that to give the
patient an honest  and accurate evaluation, all weakness and pain must be
taken into account.  His  conclusion was based solely upon this opinion.

11. Dr. Harmeling used Table 18 on page 58 of the Guides which deals with
impairment  valuation of the upper extremity.  The Table indicates that 60%
of the upper extremity  involves the glenohumeral joint (which is the joint
dealt with here).  Dr. Harmeling  opined that a complete impairment of the
joint would result in a 60% loss in the upper  extremity, but that this value
was too high to place upon the claimant.  Instead, Dr.  Harmeling arbitrarily
set the value at 25% since it seemed like 40% of the 60% total was  enough in
this case.  He also placed an added 25% value upon the complete loss of the 
acromioclavicular joint.  Dr. Harmeling added these values together, not
utilizing the  combination table contained in the Guides, to find a 50% upper
extremity "disability."   Dr. Harmeling found "mild" crepitation in the
claimant's right upper extremity but did not  utilize the section of the
Guides that assess this condition.

12. Dr. Rick Parsons, a board certified orthopedic surgeon, also conducted an
impairment  evaluation of the claimant.  On July 15, 1997, Dr. Parsons
examined the claimant,  reviewed medical records, took a subjective history,
and reviewed x-rays.  He ultimately  assessed a 16% upper extremity
impairment in the claimant.  Dr. Parsons followed the  exact procedures as
defined in the Guides and opined that this is the proper course since  the
Guides are the "gold standard for the industry in workers' compensation
situations."

13. Dr. Parsons utilized Figure 41 on page 44 and Figure 44 on page 45 of the
Guides, and  found that the claimant had a limited range of motion in
abduction and flexion resulting  in a 6% upper extremity impairment (3%
impairment from each).  Dr. Parsons also  utilized page 61 of the Guides to
find a 10% upper extremity impairment resulting from  the resection
anthroplasty of the distal clavicle (a result of the Mumford procedure).  Dr. 
Parsons combined these values using the combination table on page 322 of the
Guides  resulting in a 16% upper extremity impairment rating.  Dr. Parsons
did not add in any  impairment based upon crepitation because he found none
present.

14. Dr. Parsons disagrees with the manner in which Dr. Harmeling used Table
18 of the  Guides.  Dr. Parsons notes that Table 18 is for use in conjunction
with the tables that  follow and the impairments from those tables are
supposed to be multiplied by the  percentage indicated on Table 18.  Dr.
Parsons also believes that use of Table 18 was  unwarranted since the
claimant had a limited range of motion covered in other sections of  the
Guides.

15. A records review and audit of the permanent partial impairments provided
by Dr.  Harmeling and Dr. Parsons was performed by Dr. Christopher Brigham. 
Dr. Brigham is  board certified by the American Board of Preventive Medicine,
the American College of  Forensic Examiners, and the American Board of Family
Practice.  He is a certified  independent medical examiner and is
editor-in-chief of the AMA Guides Newsletter,  published by the American
Medical Association.

16. Dr. Brigham found that the evaluation performed by Dr. Harmeling was
inconsistent with  the directions in the Guides and that Dr. Parsons's
evaluation was conducted correctly.  In  making this determination, Dr.
Brigham reviewed the background of the process  specified by the Guides for
rating impairment.  He opined that Table 18 is never used as a  "stand-alone"
table.  He further opined that it is never appropriate for an evaluator to 
arbitrarily assign multipliers of their own choosing, as Dr. Harmeling did. 
Dr. Brigham  believes that Dr. Harmeling's approach was entirely inconsistent
with the appropriate use  of Chapter 3 of the Guides.  On-the-other-hand, Dr.
Brigham reviewed the evaluation of  Dr. Parsons and verified the impairment
values given for the range of motion deficits.   Dr. Brigham believes that
Dr. Parsons correctly combined and translated the deficits  found.


CONCLUSIONS OF LAW:

1. Causation is not at issue in this case, instead we are asked to choose
between two  conflicting impairment ratings to decide the extent of
claimant's impairment.  This issue  is made more complex because we are
forced to decide questions of medical expert  credibility without the benefit
of a hearing.  The case is only further complicated because  we must decide
the correct usage of the Guides while conducting impairment evaluations.

2. As a frame for these decisions, the issue of the Form 22 settlement must
be addressed.  It  is generally accepted that once parties have executed a
Form 22 and the Commissioner  has approved of the settlement, the form
becomes binding absent evidence of fraud or  material mistake of fact. 
Catani v. A.J. Ekert Co., Opinion No. 28-95 WC citing Rule 17  of the
Workers' Compensation and Occupational Disease Rules.  The Department will 
accept the filing as a final determination of the dispute absent compelling
evidence of  error.  Id.  Such evidence does not exist in this case and, as a
result, the Form 22  settlement is binding upon the parties.

3. A 25% impairment to the right upper extremity was agreed to in the
original Form 22  filing, based upon the impairment rating found by the
claimant's original treating  physician, Dr. Hayer.  At the time, ratings
from several physicians existed and the highest  of these was ultimately
agreed upon.  The claimant now asks the Commissioner to revise  this by
adopting the 50% rating found by Dr. Harmeling.  If this 50% rating were 
supported by credible evidence then it is possible that compelling evidence
of error  would exist to allow the revision.  However, the rating is not
supported by compelling, let  alone credible, evidence of error.

4. Dr. Harmeling's evaluation and resulting impairment rating are simply not
acceptable.   The department has historically examined several factors in
determining the credibility of  physicians.  The factors are: 1) whether the
physician was the treating physician, Mills v.  Windham Supervisor Union,
Opinion No. 45-96WC (July 23, 1996); 2) the degree of  professional training
and expertise in the given area; 3) the evaluation performed  including the
degree of access to all the medical records; and 4) the objective tests and 
findings the physician advances in support of his/her opinions.  Moreau v.
M&M  Beverage, Opinion No. 13-96WC (Mar. 12, 1996); Kelly v. Webster Corp.,
Opinion No.  8-97WC (June 13, 1997).

5. There is no doubt that Dr. Harmeling was the treating physician at the
time the claimant's  evaluation was given.  There is also no doubt that Dr.
Harmeling maintains a high degree  of expertise and professional training in
the area of orthopedic surgery.  These elements  lend some credibility to Dr.
Harmeling's evaluation.

6. However, the last two factors detract greatly from the credibility of the
evaluation.  At the  time Dr. Harmeling performed his evaluation, he did not
have access to all the medical  records.  Dr. Harmeling only had access to
his own records and a report from the  Tennessee Orthopedic Clinic.  He did
not have access to any of the claimant's prior  medical records.  It is
unclear how great an effect this had upon the ultimate conclusion  of Dr.
Harmeling's evaluation.

7. It is clear, however, that the evaluation, and specifically the methods
Dr. Harmeling  utilized to find the 50% impairment, was not performed in what
would be considered a  normal, acceptable fashion.  First, Dr. Harmeling
applied Table 18 of the Guides  incorrectly.  The introduction to that
section of the Guides clearly states that "appropriate  impairment percents
from Tables 19 through 30 are multiplied by percents from Table  18." 
Guides, pg. 58.  Rather than doing this, Dr. Harmeling took the unmodified
60%  figure from Table 18, for complete loss of function in the glenohumeral
joint, and then  arbitrarily reduced that figure based on his estimate of
impairment to the joint.

8. Second, Dr. Harmeling failed to utilize the Combined Values Chart, on page
322 of the  Guides, when he combined the two separate impairments of 25% that
he found.  Proper  usage of the chart renders a percentage of only 44% when
the two are combined.  Dr.  Harmeling simply added the two values together,
without reference to the chart, to yield a  50% total.

9. Third, Dr. Harmeling consistently refers to "disability" in his deposition
testimony when  addressing his use of the AMA Guides to the Evaluation of
Permanent Impairment, 4th  Edition (emphasis added).  He seems to make a
distinction between disability and  impairment.  This distinction may
indicate simple confusion in the questioning, but it  could also point to a
fundamental flaw in Dr. Harmeling's understanding of the Guides.

10. Finally, and most disturbingly, Dr. Harmeling went out of his way to
avoid basing his  evaluation upon objective tests and findings.  He even
resorted to the use of arbitrary  percentages at one point without ever
explaining an objective basis for the finding.

11. Separately these four points would indicate very little about Dr.
Harmeling's evaluation.   However, taken together they indicate that Dr.
Harmeling seriously misapplied or  misunderstood the Guides.  To be sure, the
Guides was never meant to represent an  absolute in the area of impairment
rating.  It simply acts to guide, as its name suggests.

12. As Dr. Parsons indicated, the Guides are accepted as the gold standard by
physicians in  the workers' compensation field.  At the same time, physicians
must recognize that the  Guides allows for much discretion within the
framework it creates.  A physician need not  follow the dictates of the
Guides exactly to come to a normal and acceptable conclusion.   The physician
need only use the discretion built into the framework of the Guides to  come
to a rational and supported conclusion.

13. Dr. Harmeling's evaluation is simply not credible.  Even though Dr.
Harmeling was the  treating physician and undoubtedly maintains a high degree
of expertise in the field,  credibility remains a major issue because Dr.
Harmeling performed his evaluation in a  manner contradictory to the Guides
and failed to support the evaluation with any  objective tests or findings. 
For this reason, no compelling evidence supports a conclusion  of error on
the part of the parties when they agreed to file the Form 22.  Without such 
evidence, the Form 22 is binding upon the parties and the permanent partial
impairment  rating for claimant's upper right extremity will remain at the
agreed upon 25%.  The issue  as to the extent of claimant's impairment is
thus moot and as such, will not be addressed  at this time.


ORDER:

The Form 22 is binding upon the parties and the stipulations set forth in the
form remain  as agreed.

Dated at Montpelier, Vermont, on this 30th day of July 1999.



				______________________ 
				Steve Janson
				Commissioner