STATE OF VERMONT

DEPARTMENT OF LABOR AND INDUSTRY

Michael Wallace                   State File No. K-24580

                                        By: Margaret A. Mangan

 v.                                          Hearing Officer

Velan Valve Corp                  For: Michael S. Bertrand

                                               Commissioner

                                         Opinion No. 51S-02WC

Supplemental Order

APPEARANCES:

Christopher J. McVeigh, Esq. for the Claimant

William J. Blake, Esq. for the Defendant

            This supplemental order corrects an error in Opinion No. 51-02WC, dated

December 19, 2002, and addresses an attorney fee issue.

              The contested issue addressed at the December 3, 2002 hearing was whether the C-2 cervical decompression surgery and C-6 foraminotomy proposed by Joseph Phillips M.D., Ph.D. were compensable surgical services pursuant to 21 V.S.A.§ 640.

            Contrary to paragraph 8 in the opinion, the carrier in this case did not accept the compensability of the C-6 foraminotomy.  In fact, it never authorized any of the cervical spine surgical procedures proposed by Dr. Philips.  The opinion addressed the opinions of differing experts, choosing as the prevailing one the opinion of Dr. Phillips who proposed both the decompression and foraminotomy.  Therefore, both are compensable.

            Next is a defense challenge to the Claimant’s attorney’s time records submitted in support of his claim for fees, records with material identified as subject to attorney-client privilege redacted.  Since then un-redacted copies have been submitted for an in camera review and 0.6 hours subtracted from the total claimed and arithmetic errors corrected.  My review of the un-redacted records supports the claim for 57.3 hours of attorney time on issues related to this claim.  The records submitted for in camera review have been destroyed.

            Accordingly, the order is hereby amended to read:

The defendant is ORDERED to pay:

1)    Expenses related to the surgery Dr. Phillips proposed;

2)    Attorney fees based of $5,157, based on 57.3 hours at $90.00 per hour.

Dated at Montpelier, Vermont this 24th day of February 2003.

_____________________________

Michael S. Bertrand

Commissioner