Hearing held in Montpelier on January 31, 2003
Record closed on February 14, 2003
John J. Welch, Esq., for the Claimant
Christopher J. McVeigh, Esq., for the Defendant
Should Kaiser-Permanente be relieved of any further liability for Ms. Vitagliano’s workers’ compensation benefits?
Joint Exhibit I: Medical Records
1. Report by Dr. Bannerjee dated September 20, 2001
4. Letter from Crawford October 30, 2001
A. Letter from Crawford to Dr. Ball dated July 24, 2001
B. Deposition of Dr. Bucksbaum
C. Pay Records
FINDINGS OF FACT:
Vitagliano, the Claimant, began working at Kaiser Permanente (KP) as a
receptionist in late July of 1999.
that she had worked at Castleton Medical Center beginning in 1998; at
Mintzers of Rutland beginning in 1996; and at Albank in Rutland
beginning in 1994. She
had no significant absenteeism recorded at any of those jobs.
One of the Claimant’s duties at Kaiser Permanente was to carry medical
charts from her desk to the medical chart storage area.
The medical storage area was approximately 36 feet
away from her desk.
3. The charts
were made up of various types of paper with medical records printed on
Claimant testified that the charts, or stacks of charts, that she
carried were never more than approximately 5.5 inches high and never
more than approximately 10 lbs.
4. The Claimant
has smoked a pack of cigarettes a day for almost thirty years. Smoking can be a
contributing factor in the degeneration of someone’s cervical spine.
On September 10, 1999, the Claimant picked up a stack of charts, held
them against her body and walked towards the chart cart. When
she reached the cart, she lifted the charts from approximately her
waist height to approximately her chest height and then felt a pull in
her neck. She
finished work that day despite the neck discomfort.
6. At the hearing, on
cross-examination, Claimant stated that she did not twist her body when
she lifted the files.
7. The next day
the Claimant spoke with a nurse at Kaiser Permanente regarding her
pain, and the nurse gave her Advil.
On September 22, 1999, the Claimant went to the Rutland Regional
Medical Center for emergency care related to severe neck pain. She treated with John
Conlon, M.D. Dr.
Conlon’s report from the visit indicates that the Claimant stated that
there was no history of trauma to her neck and that she had recently
been lifting some heavy bottles. She
stated that she had been having pain for about a week.
During the hearing in this matter, the Claimant
testified that she had not been lifting any bottles.
The Claimant’s husband also testified that the
Claimant had not been lifting heavy bottles.
9. Next, the
Claimant treated with Joseph Corbett, M.D., a neurosurgeon, on
September 27, 1999. No
mention is made of a lifting incident in the note for that visit.
10. Dr. Corbett
operated on the Claimant on September 29, 1999 to repair a soft tissue
disc herniation at the C4-C5 level.
According to Dr. Corbett, a disc herniation of this
type usually occurs with a twisting mechanism.
Even 10 pounds would be a sufficient weight if one
were off balance. The
most likely cause of the herniation according to Dr. Corbett was the
During surgery, Dr. Corbett noted degeneration at multiple levels of
Claimant’s surgical spine and performed surgery at cervical levels
three to six. Although
the surgery exceeded that
caused by the work-related lifting incident, the additional procedures
did not appreciably increase the cost.
12. In October
1999 Claimant reported to a physical therapist that she had hurt her
neck lifting files at work.
The Claimant reported a work related injury to Kaiser Permanente, who
filed an Employer’s First Report of Injury on October 4, 1999.
At the request of Crawford & Company, who adjusted this claim,
Sikhar Banerjee, M.D., a rehabilitation specialist, examined the
Claimant on September 20, 2001. Gail
Meddaugh, a registered nurse employed by Crawford, met the Claimant at
the doctor’s office. After
the examination, Dr. Banerjee spoke with Ms. Meddaugh about his
Banerjee’s notes indicate that the Claimant “reported that on 9/10/99
when she was working…at a medical office she was lifting a stack of
charts weighing about ten pounds and she suddenly felt a sharp pulling
sensation in the back of her neck.”
He recounted her course of treatment, including the
surgical procedures she had undergone.
accepted that she had suffered a lifting injury at work and concluded
that she had reached a medical end result with a 28 % whole person
impairment for her cervical spine, 6% for gait and station impairment
and 6% for the left shoulder for a total of 38% whole person based on
the combined values chart. He
recommended that she have a functional capacity evaluation.
At the request of the Defendant, Mark Bucksbaum, M.D., a physician
board certified in pain management, independent medical examination and
rehabilitation reviewed the Claimant’s medical file, as well as the
depositions of the Claimant, Dr. Corbett and Dr. Sikhar Banerjee, both
of which were conducted in 2002. Although
conducted nerve conduction studies some years before, Dr. Bucksbaum did
not conduct a physical examination of Lois Vitagliano and never saw her
prior to September 10, 1999.
16. Dr. Bucksbaum
was aware that the Claimant had degeneration in her cervical spine
prior to September 10, 1999. In
reviewing the medical file and depositions, Dr. Bucksbaum came to the
conclusion that the Claimant’s lifting of the medical files on
September 10, 1999 would have been insufficient to create an injury to
the cervical spine of the nature Claimant suffered.
based his conclusion on the facts that the weight of the files was
insignificant and that there was no rotational force involved with the
lifting. While he
believed the lifting of the
files to be an insignificant event, Dr. Bucksbaum did believe that the
lifting of heavy bottles described in the emergency room note might
have been significant enough to generate a force that could produce a
Based on his interpretation of the Guides, Dr. Bucksbaum concluded that
Claimant’s permanent partial impairment would be 28% whole person if
the DRE method were used prior to any apportionment for her
pre-existing condition. Because
multi-level disease of her spinal cord, Dr. Bucksbaum opined that the
appropriate methodology for a determination of permanency under the 5th
edition of the AMA Guides is the range of motion model, not the DRE
model used by Dr. Bannerjee. Nevertheless,
impairment would be 28% without apportionment under either model
because 3% would be added for pain in the ROM model and not in the DRE
Claimant’s attorney provided supporting evidence of his claim for fees
based on 24 hours at $90.00 for a total of $2,160.00 and necessary
expenses of $623.25. The
record also includes
the suggestion that there is an attorney lien from Todd Kalter, Esq.,
but the existence and nature of that lien are unclear.
CONCLUSIONS OF LAW:
In a typical Workers’ Compensation case the Claimant has the burden of
establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123
Vt. 161 (1963). However,
if an employer initially accepts a claim and then seeks to relieve
itself of responsibility for the claim, the burden of proof will shift
to the employer. Merrill
v. University of Vermont, 133 Vt. 101 (1974).
2. “Having received notice or knowledge of an injury, the employer shall promptly investigate and determine whether or not compensation is due.” WC Rule 3.700
[t]he employer shall have 21 days from receiving notice or knowledge of an injury within which to determine whether any compensation is due. If it determines that no compensation is due, it shall, within 21 days of notice or knowledge of the injury, notify the commissioner and the Claimant in writing of its denial and the reasons therefore. The denial shall be accompanied by copies of all relevant documentation, medical or otherwise, relied upon to support the denial. If, despite good faith efforts, the employer/carrier cannot render a decision within the 21 day time limit the employer/carrier must request, in writing to the commissioner, an extension of the 21 day limit. This extension must be specific as to the number of days needed and the reason for the delay and must be received by the commissioner prior to the end of the 21 day limit. A copy of the request for an extension must be provided to the Claimant at the time the request is provided to the commissioner.
WC Rule 3.0900.
Permanente’s insurer adjusted this claim and paid certain disability
and medical payments to the Claimant.
seeks now to relieve itself of further liability based on the theory
that there is no causal link between Claimant’s cervical spine
condition and the 1999 work-related injury.
to the defense is Claimant’s testimony that she did not twist when she
was carrying the files she alleges caused the injury.
a twisting mechanism been involved, Dr. Bucksbaum, on whose opinion
Defendant now relies, agrees that the weight she was carrying could
have caused the disc herniation. Claimant’s
neurosurgeon, Dr. Corbett, opined that it was the likely cause.
4. Defendant now
argues that the medical record demonstrates an inconsistent history of
complaints on the part of the Claimant.
she obtained Advil from a nurse the day after the injury, a claim of
being injured at work was not made until October 4, 1999, over three
weeks after the incident occurred.
On two occasions before that, on September 22 and
September 27, she consulted with two doctors.
she denied any history of trauma to both Dr. Conlon and Dr. Corbett.
The Claimant did not mention that she had injured herself while lifting
files at work on either occasion.
Well within the 21 days the insurer had to
investigate the claim, those records were available.
Therefore, the defense now rests on evidence it had during the time it
investigated this claim and the stale memory of the Claimant that she
did not twist when she was lifting the charts.
Dr. Corbett testified, even being off balance with a ten-pound weight
would have been sufficient to have caused the herniated disc and being
off balance when placing ten pounds of files on a cart is not something
one would necessarily remember years later.
will not now be permitted to rest on the Claimant’s current memory of
events to relieve itself of liability, when the records it now relies
on were available to it during the time it had to investigate this
6. On balance the
defense has failed to meet its burden of proof to justify the
termination of benefits. See
Merrill, 133 Vt 101.
Furthermore, it is disingenuous at best for the Defendant to now
disavow the opinion of Dr. Bannerjee and characterize it as a Claimant
examination when it was the insurer who asked the doctor to perform the
examination and when it sent a nurse case manager to the doctor’s
office to discuss the case with him.
Clearly that was a defense examination.
Yet, it now has another opinion based on a record review of Dr.
Bucksbaum and argues that the range of motion model is the appropriate
methodology and that the permanency must be apportioned and the degree
attributable to her preexisting condition subtracted from the total.
According the Guides, 5th edition, “the DRE method is the principal
methodology used to evaluate an individual who has a distinct injury.” § 15.2 at 379. However, the range of
motion model is used “when there is multiple level involvement in the
same spinal region. Id.
at 380. Therefore,
Dr. Bucksbaum’s opinion on the proper methodology based on the range of
motion model must be accepted over Dr. Bannerjee’s DRE determination. However they do not
disagree on the total degree of permanency for the cervical spine, 28%.
12. Claimant is entitled to permanency based on 28% whole person impairment.
13. As a prevailing Claimant she is also entitled to reasonable attorney fees as a matter of discretion and necessary costs as a matter of law. 21 V.S.A. § 678(a). Her success is due to the efforts of her attorney whose fee request based on 24 hours is reasonable. Accordingly, she is awarded fees based on 24 hours at $90.00 for a total of $2,160.00 and necessary expenses of $623.25. It is not possible to determine the issue of Attorney Kalter’s lien on the record presented.
Therefore, based on the Foregoing Findings of Fact and Conclusions of Law:
A. The defense motion to be relieved of liability is DENIED.
B. Defendant is ORDERED to:
1. Continue adjusting this claim;
2. Pay Claimant Permanency based on 28% whole person impairment;
3. Pay Attorney fees and costs as stated above.
Dated at Montpelier, Vermont this 8th day of September 2003.
Michael S. Bertrand
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 V.S.A. §§ 670, 672.