23-11WC. Dolores Drew v. Northeast Kingdom Human Services.

CourtVermont
Vermont Workers Compensation 2011. 23-11WC. Dolores Drew v. Northeast Kingdom Human Services Dolores Drew v. Northeast Kingdom Human Services (August 31, 2011)STATE OF VERMONT DEPARTMENT OF LABOROpinion No. 23-11WCBy: Phyllis Phillips, Esq. Hearing Officer For: Anne M. Noonan CommissionerState File No. U-1564OPINION AND ORDERHearing held in Montpelier, Vermont on March 21, 2011 Record closed on May 12, 2011APPEARANCES:Steven Robinson, Esq., for ClaimantEric Johnson, Esq., for Defendant ISSUE PRESENTED: Is Claimant permanently and totally disabled as a result of her May 1, 2003 work-related injury? EXHIBITS: Joint Exhibit I: records Joint Exhibit II: Deposition of Charles Alexander, January 28, 2011 CLAIM: Permanent total disability benefits pursuant to 21 V.S.A. §645 Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678 FINDINGS OF FACT: 1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont's Workers' Compensation Act. 2. Judicial notice is taken of all relevant forms and correspondence contained in the Department's file relating to this claim. Judicial notice also is taken of the Commissioner's prior Opinion and Order in this claim, D.D. v. Northeast Kingdom Human Services, Opinion No. 47-06WC (January 9, 2007). Claimant's Vocational and Medical History 3. Claimant is a high school graduate. Her employment experience is almost exclusively in the personal care field. She has worked as a nurse's aide, in both nursing home and private duty settings. Aside from this hands-on experience, Claimant has had no other vocational training or advanced educational coursework. 4. Claimant's prior medical history is significant for morbid obesity, peripheral edema in her lower extremities and anxiety and depression. She also has a history of low back pain following a fall at work in 1994. Claimant was disabled from working for a time after that injury, but later returned to full-time employment. Aside from some brief episodes of low back pain subsequently, neither this nor any of Claimant's other pre-existing conditions was disabling prior to May 1, 2003. Claimant's May 2003 Work Injury and Subsequent Medical Course 5. Claimant began working for Defendant as a day services provider in 1998. Her duties included providing daily assistance to the mentally challenged residents of a group home. Claimant helped them with personal care and other daily living activities and also accompanied them on trips within the community. 6. On May 1, 2003 Claimant was helping a co-worker to retrieve some supplies for the night shift. As she was descending a flight of stairs her foot slipped. Claimant slid down the stairs on her backside, landing at the bottom with her right knee tucked up under her left leg. 7. Defendant accepted Claimant's injuries, which it initially characterized as a right knee strain and low back contusion, as compensable and began paying workers' compensation benefits accordingly. 8. For her right knee injury Claimant treated with Dr. Gagnon. Dr. Gagnon diagnosed a knee contusion, which he treated conservatively. Claimant reached an end medical result for this injury on April 14, 2004 and was rated with a 3 percent whole person permanent impairment. Aside from some limitation as to climbing stairs, Claimant's right knee injury does not otherwise restrict her ability to work. 9. For her lower back injury Claimant has treated principally with her primary care provider, Susan Taney, a nurse practitioner. From the beginning, her symptoms have consisted of an aching, burning pain across her lower back, with some muscle spasm but no clear radicular component. She sleeps fitfully and can neither sit nor stand for extended periods of time without having to change position. Her tolerance for walking is extremely limited. Claimant also suffers from depression, at least in part causally related to her chronic pain and physical limitations. She spends most of her day napping, performing very light housework, watching TV and engaging in craft projects. 10. Diagnostic imaging studies have revealed some degenerative disc changes in Claimant's lumbar spine, but no definitive herniations. For that reason, treatment has focused on conservative rather than surgical measures. Neither physical therapy nor injections has provided any long-term symptom relief. For years now, Claimant has relied on narcotic pain medications as her primary means of managing her symptoms. These have been appropriately prescribed and never abused. 11. In July 2004 Claimant began a multi-disciplinary functional restoration program at the Work Enhancement Rehabilitation Center (WERC) in Williston. Programs such as this combine physical therapy, occupational therapy, pain management and psychological counseling in a structured in-patient setting. The goal is to assist patients to develop both the physical capacity and the coping skills necessary to achieve clearly delineated functional goals, be they work-related, domestic or recreational. Claimant had successfully completed the WERC program following her previous low back injury in 1994. Given both her prior success and her current functional limitations, Dr. Cody, who evaluated her for entry into the three-week intensive program, concluded that she was a "perfect candidate." 12. Unfortunately, this time Claimant was unable to complete the WERC program. Shortly after starting it her grandfather was killed in a motor vehicle accident. In addition, while engaged in program activities she experienced an episode of dizziness, which her primary care provider, Ms. Taney, felt warranted further diagnostic work-up before continuing. For these reasons, Claimant left the program after only four days. 13. In September 2004 Claimant was diagnosed with a pituitary tumor, and later with complex migraine headaches. These conditions were successfully treated, and by early 2005 Ms. Taney was once again strongly advocating for Claimant to resume an in-patient functional restoration program. 14. At Defendant's request, in May 2005 Claimant underwent an independent medical examination with Dr. Gennaro. Dr. Gennaro determined that Claimant likely had sustained a low back strain as a result of her work injury, but that her ongoing symptoms were no longer attributable to that event. Instead, Dr. Gennaro pointed to Claimant's morbid obesity and severe deconditioning as the principal impediments to her recovery. 15. As for functional restoration, Dr. Gennaro concluded that such a program was neither necessitated by Claimant's work injury nor likely to change her circumstances, and therefore he would not recommend it. Rather, Dr. Gennaro identified extreme weight 16. Dr. Gennaro concluded that Claimant had reached an end medical result for her work injury and rated her with a 5% whole person permanent impairment. With this opinion as support, in August 2005 Defendant discontinued Claimant's temporary total disability benefits. It also refused to pay for Claimant to resume participation in a functional restoration program. 17. Claimant appealed Defendant's discontinuance. In support of her position she produced evidence from Ms. Taney and other medical...

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