Dickinson v. T. J. Maxx (04/10/03)

Laurene Dickinson                                Opinion No. 13-03WC

v.                                                          By: George Belcher
                                                                   Hearing Officer
T. J. Maxx

                                                             For: Michael S. Bertrand
                                                                    Commissioner

                                                             State File No. M-05516

Hearing held in Rutland, Vermont on October 25, 2002 and in Montpelier, Vermont on October 28, 2002

Record Closed on November 15, 2002

Beth Robinson, Esq. for the Claimant (who was present at the hearing)
David McLean, Esq. for the Employer

EXHIBITS:

Joint Exhibit 1: Medical Records of Laurene Dickinson, Volumes 1 and 2 (516 pages) including medical records of:

1. Convenient Medical Care

2. VT Orthopedic Clinic

3. RRMC

4. VT Sports Medicine

5. DHMC

6. Mark Bucksbaum, M.D.

7. Michael Dryer, M.D.

8. Mt. Ascutney Hospital

9. Restoration P.T.

Joint Exhibit 2: Video Deposition of Mark Bucksbaum, M.D.

Claimant’s Exhibit1: Curriculum Vitae of Mark Bucksbaum, M.D.
Claimant’s Exhibit 2: Letter of July 19, 2002 from Dr. Bucksbaum to Atty Robinson
Claimant’s Exhibit 4: Home Evaluation of 1/3/02 by Restorative Physical Therapy
Claimant’s Exhibit 6: Interim note of 3/28/02 of Restorative Physical Therapy
Claimant’s Exhibit 7: Letter to Atty Robinson from Patricia Nowick dated 05/17/02
Claimant’s Exhibit 11: Curriculum Vitae, Patricia Nowick
Claimant’s Exhibit 12: MMT note of 10/23/02
Claimant’s Exhibit 13: Restoration Physical Therapy Flow Chart
Claimant’s Exhibit 14: Curriculum Vitae of Diane Aja, P.T.
Claimant’s Exhibit 15: Diane Aja report

Employer’s Exhibit A: Curriculum Vitae of Michael Kenosh, M.D.
Employer’s Exhibit B: Page 529 of The Guide to the Evaluation of Permanent Impairment, 5th edition
Employer’s Exhibit D: Louise Lynch work history
Employer’s Exhibit E: Curriculum Vitae of Louise Lynch, CWCE
Employer’s Exhibit F: Continuing Education of Louise Lynch
Employer’s Exhibit G: Louise Lynch Continuing Industrial Education|
Employer’s Exhibit H: Letter of Wm. Miller to Dr. Bucksbaum dated 8/28/01
Employer’s Exhibit I: Letter of Wm. Miller to Dr. Bucksbaum dated 9/13/02

1. Shall the Claimant receive a manual wheelchair pursuant to the Vermont Workers’ Compensation Act?

2. Shall the Claimant receive a power wheelchair pursuant to the Vermont Workers’ Compensation Act?

3. Is the Claimant entitled to temporary partial and temporary total disability benefits subsequent to June 11, 2000?
   
   4. Is additional temporary total disability due for the period of November 12, 1998 through June 11, 2000, and, if so, how much?

1. Claimant was an employee of Defendant within the meaning of the Vermont Workers’ Compensation Act on September 10, 1998.

2. Defendant was an employer within the meaning of the Act on September 10, 1998.

3. RSKCo. Insurance Company was the Workers’ Compensation insurance carrier of the Defendant on September 10, 1998.

4. On September 10, 1998, Claimant suffered a personal injury by accident arising out of and in the course of her employment with Defendant.

5. At the time of the accident, Claimant had no dependents and currently Claimant has no dependents under the age of twenty-one.

6. At the time of the accident, claimant had an average weekly wage of $286.50 and a weekly net income of $234.59, resulting in a weekly compensation rate of $234.59.

7. Claimant was paid Temporary Total Disability ("TTD") from November 12, 1998 until June 11, 2000, at the rate of $192.79 per week.

8. Defendant reinstated temporary disability benefits on August 3, 2001, pursuant to and order from the Department of Labor and Industry. Defendant paid these benefits at the rate of $192.79 per week. Defendant terminated those temporary disability benefits on January 30, 2002, pursuant to approved Form 27.

1. This case involves the question of whether the Claimant is so impaired by reason of her injury that she requires use of a wheelchair. There is disagreement between the testifying doctors and the testifying occupational therapist and physical therapist. The case boils down to the credibility and persuasiveness of the Claimant and the testifying medical professionals. (The matter was heard as an expedited case under Workers’ Compensation Rule 7, but the trial was extensive with over 500 pages of exhibits and over 100 pages of proposed findings.)

2. On September 10, 1998 the Claimant suffered a personal injury by accident arising out of and in the course of her employment with the Defendant. She was lifting a box of pillows and heard a "popping" in her knee.

3. This incident set in motion a long series of evaluations and treatments, summarized as follows:

   1. The Claimant was initially diagnosed by Tim Lensing, PA-C with a left knee sprain;

   2. Dr. Joseph Vargus performed an arthroscopy on December 2, 1998 and found a partial torn medial meniscus, chrondromalacia of the patella;

   3. In December, 1998 and January of 1999, she was found to have a quadriceps atrophy; while she had hoped that the surgery would simply repair the knee problem, she was not free of pain; she participated in physical therapy between January of 1999 and May of 1999 including 44 visits to Vermont Sports Medical Center;

   4. Dr. Charles Carr treated the Claimant in July of 1999 by steroid injection; Dr. Carr is a rehabilitation specialist at Dartmouth-Hitchcock Clinic; Dr. Carr noted atrophy of her left thigh which was beyond what a simple knee injury would indicate; at this time she was still using crutches to walk;

   5. In August of 1999 the Claimant saw Dr. Gilbert Fanciullo, a pain specialist at the Dartmouth Hitchcock Clinic; he treated the Claimant for pain with medications;

   6. In that same month, the Claimant was given an Independent Medical Evaluation by Dr. Frederick Lord; he was of the opinion that she could return to work for four hours per day, he noted the left leg atrophy, and he recommended lumbar pain blocks which the claimant had between September and December of 1999; the pain blocks were ineffective; the Claimant recommenced physical therapy at the suggestion of Dr. Fanciullo;

   7. In January of 2000 Dr. Bagley performed an electromyography (EMG) and found that there was a partial injury to her "distal rectus femorus" which was gradually improving; she was later prescribed a neuromuscular electrical stimulation unit, discharged from the pain clinic and referred back to Dr. Carr;

   8. In March of 2000 Dr. Carr found that she had not greatly improved and that the atrophy of the left leg was still present; he recommended that she participate in physical therapy and use a soft knee brace;

   9. In the same month, Dr. Bucksbaum was retained by the Employer to perform an independent medical examination (IME) on the Claimant; he noted that she was using a cane, a soft knee brace, that she had knee pain and atrophy of her left quadriceps; he determined that she had reached maximum medical improvement and he assessed a permanency rating of 5% whole person, primarily basing the rating on the leg atrophy; he also suggested an exercise program and a different type of brace;

   10. In May of 2000, the Claimant returned on her own to Dr. Bucksbaum; at that time she was not being offered significant hope for treatment with other treatment providers and she hoped to improve her functional capacity by investigating the brace which he had recommended; Dr. Bucksbaum discussed her situation and began a treating relationship with her; with a newly recommended brace, the Claimant returned to work on June 11, 2000 on a part time basis;

   11. The return to work was not successful, because of pain and problems with the leg brace; with work and with exercise, both Dr. Bucksbaum and the Claimant had hoped for improvement in her leg and knee; instead she became worse; her employer noted that she was in significant pain in December of 2000 and asked her to cut back on her hours; as of January of 2001 the atrophy was getting worse, indicating that the nerve injury, if that was the problem, had not healed as hoped; because the Claimant was getting worse, Dr. Bucksbaum retracted his prior determination of medical end result; he prescribed a different leg brace;

   12. In the Spring of 2001, the Claimant was prescribed a course of Neurontin for neuropathic pain; this was unsuccessful; in June of 2001 she had another EMG by Dr. Dreyer which test revealed a likely partial injury to her femoral nerve; the nerve injury impacts muscles in the leg; she was referred to Patricia Nowik, P.T. to help her work with a functional electronic stimulator;

   13. In August of 2001, Dr. Bucksbaum restricted the Claimant from work and prescribed a "long-leg" brace; the long-leg brace is a significant device; the function of the brace is to take the weight of the patient off of the leg and knee and to transmit the weight from the pelvis, through the brace, to the ground; there were a variety of adjustments and modifications to the device; the Claimant had to change her life significantly to adjust to the brace; she had to learn how to walk with it, drive with it; get it on and off, and how to exercise daily life functions; it was hard for her; there were sores which developed and abrasions to her skin and clothes; she had pain from the brace and lumps in her tendons; in addition, the lack of natural walking and functioning associated with her injury was causing difficulties in other areas; her back, shoulders and neck began to have pains and soreness;

   14. Again in August of 2001, the Employer caused the Claimant to be examined by Dr. Lord for an IME; Dr. Lord’s opinion was not significantly different from that of Dr. Bucksbaum, except that he felt that she had the capacity to work a very light schedule;

   15. During the fall of 2001, the Claimant’s condition became worse with simple household functions becoming difficult and multiple body-point pain and spasms becoming an issue; Patricia Nowick, the physical therapist observed that the "quad muscles " were getting worse and that the knee was not tracking properly; the more that the Claimant was on her feet, the more she had spasms and shoulder pain; both Pat Nowik and Dr. Bucksbaum, at one point raised the possibility of a wheel chair for relief and mobility; the Claimant was very resistant to the idea of a wheelchair as being inconsistent with ultimate recovery;

   16. On January 16, 2002, Dr. Bucksbaum once again determined a medical end result and he assigned a permanency rating this time of 60% based upon the use of the brace; the Claimant had gone from a cane, to soft braces, to a long leg brace, to a long-leg brace and crutches; her ability to function, both for employment and daily living, had withered over a long course of treatments, therapy, electronic devices, testers, and pain;

   17. In February of 2002, at the suggestion of Dr. Bucksbaum, the Claimant was evaluated by Dr. Stephen Mann, a psychologist; he found that she was not engaging in excessive somatic thought, but that she was clinically depressed by reason of her injury; during a time in February, the long-leg brace was sent out for repair; during this time, the Claimant was severely restricted in her ability to get around or do much of anything;

   18. In February of 2002, the Claimant was evaluated by Diane Aja, an Occupational Therapist, for a Functional Capacity Examination (FCE); Ms. Aja determined her tests to be valid based on the repeatability, confirmation by objective standards, consistency, and distracted performance; her conclusion was that the Claimant had extreme limitations on her ability to walk, and that a power wheelchair would benefit the Claimant by relief of her shoulders from overuse (due to the use of the crutches) and increased distance capability; in addition she would have increased energy and extended arm use; Ms. Aja did not support a manual wheelchair;

   19. On April 30, 2002 Dr. Bucksbaum recommended a manual and power wheelchair (the manual as a back-up);

   20. Dr. Michael Kenosh performed an Independent Medical Exam on May 13, 2002; he had full access to her medical records, which he thoroughly reviewed; he performed a physical examination; he noted significant left leg atrophy, but that there was no evidence of muscle spasms in the back and that the Claimant had normal upper body strength; at one point in the exam he noted that the motion was "ratcheting" showing lack of full, unrestricted effort; he determined that the documented injury to the nerve and knee were not sufficient for the resulting pain and lack of function; finally, it was his opinion that the prescription of a wheelchair was inappropriate for the level of functional impairment of the Claimant; he concluded that there was mild nerve damage to the femoral nerve and that her atrophy was probably a reflex sympathetic dystrophy;

   21. Louise Lynch performed a Functional Capacity Examination on August 8, 2002; she determined that the Claimant could walk short distances in succession with short breaks and that she had, at the date of the assessment, the capability of working doing part-time sedentary work; Ms. Lynch noted weakness in all muscle groups of the left leg and observable back problems including trigger points and areas of weakness; she determined that the Claimant could walk 20 feet without crutches; she concluded that the Claimant performed the tests to her true ability.

4. It is worthwhile here to note some facts concerning credibility. First, Laurene Dickinson has consistently wanted to get better and to be healed. She has consistently followed the recommendations of her doctors and therapists. She has worked hard at therapy, with much pain and effort, with the ultimate goal of returning to her job and to her prior abilities. There is overwhelming evidence that she is not a malingerer or that she has not been fabricating symptoms. To the contrary, she was very resistant to the idea of a wheelchair when it was first raised because she saw it as giving up upon the goal of recovery.

5. Dr. Bucksbaum’s ultimate opinion concerning degree of impairment and the extent of the injury is enhanced by the fact that it is inconsistent with his prior opinion. While he could err on the side of his professional consistency (and the Employer argues that he is professionally inconsistent, and, thus, less persuasive), his opinion is supported by the consistent physical decline of the Claimant and the objective findings of the EMG tests, both recent and past.

The Claimant is entitled to a powered wheelchair as a reasonable and necessary medical supply required by reason of her compensable injury. The Claimant is entitled to temporary total and partial disability benefits following June 11, 2000 until January 16, 2002 to be calculated consistently with this opinion. Interest at the legal rate is due on the underpayment of benefits prior to June 11, 2000 and the interest shall be calculated on $3,427.60 from June 11, 2000 until October 28, 2002. An award of attorney’s fees and costs is made as set forth above.

Dated at Montpelier, Vermont this 10^th day of April 2003.
________________________
Michael S. Bertrand
Commissioner

Appeal:

Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a Superior Court or questions of law to the Vermont Supreme Court. 21 VSA Sec. 670, 672.