35-10WC. Pamela (Barrett) Simmons v. Landmark College, Inc.

• Court: Vermont

Vermont Workers Compensation 2010. 35-10WC. Pamela (Barrett) Simmons v. Landmark College, Inc Pamela (Barrett) Simmons v. Landmark College, Inc.(November 15, 2010)STATE OF VERMONT DEPARTMENT OF LABOROpinion No. 35-10WCBy: Phyllis Phillips, Esq. Hearing OfficerFor: Valerie Rickert Acting CommissionerState File No. W-59833OPINION AND ORDERHearing held in Montpelier, Vermont on July 14, 2010 Record closed on September 1, 2010APPEARANCES:Thomas Bixby, Esq., for Claimant Bonnie Shappy, Esq., for DefendantISSUES PRESENTED:

1. Did Claimant suffer a compensable psychological injury either caused or aggravated by her March 18, 2005 work-related accident?

2. If yes, to what additional workers' compensation benefits is Claimant entitled as a consequence of her psychological injury?

3. Was it appropriate for Defendant to terminate Claimant's temporary disability benefits on the grounds that she had failed to conduct a good faith search for suitable work?

4. Is an assessment for either learning disability and/or attention deficit hyperactivity disorder an appropriate component of Claimant's vocational rehabilitation plan?

5. Is Defendant obligated to purchase a vehicle for Claimant so as to assist her in her vocational rehabilitation efforts?

EXHIBITS: Claimant's Exhibit A: Binder containing 24 exhibits Defendant's Exhibit 1: Medical records (2 binders) Defendant's Exhibit 2: June 17, 2009 letter from Attorney Shappy to Attorney Bixby (admitted solely to show notice of work search obligation) CLAIM: Temporary total disability benefits pursuant to 21 V.S.A. §642 Permanent partial disability benefits pursuant to 21 V.S.A. §648 Medical benefits pursuant to 21 V.S.A. §640 (a) Vocational rehabilitation benefits pursuant to 21 V.S.A. §641 Costs and attorney fees pursuant to 21 V.S.A. §678 RULING ON POST-HEARING MOTIONS: Motion to Strike Medical Records Relating to Claimant's Prior Medical History Claimant seeks to strike as irrelevant various medical records relating to her prior medical history. I conclude that the records are relevant to the disputed issues in this claim. They establish the background necessary to properly evaluate Claimant's assertion that the March 18, 2005 work injury either caused or aggravated the psychological conditions for which she now seeks workers' compensation coverage. Claimant's Motion to Strike Medical Records Relating to Claimant's Prior Medical History is DENIED. Motion to Strike Dr. Nash's Hearing Testimony Claimant seeks to strike the testimony of Defendant's expert witness, Dr. Nash, on the grounds that he failed to recite that his opinions reflected "a reasonable degree of psychological certainty." Beyond that, Claimant also seeks to strike that portion of Dr. Nash's testimony relating to the opinions expressed by Claimant's expert witness, Dr. Mart, on the grounds that Defendant failed to disclose Dr. Nash's opinions on the issue in a timely manner. The Commissioner has long applied a standard for evaluating the relative merit of conflicting medical opinions that focuses on the substance of each expert's testimony, taking into account not just the words used to express an opinion but the basis for the opinion itself. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003). There are no "magic words" that automatically confer greater weight to one expert's opinion over another's. J.H. v. NSK Corporation, Opinion No. 05-08WC (December 3, 2008). Nor does the failure to use a particular phrase automatically require a finding that an expert's opinion is too speculative even to be considered. I find nothing in Dr. Nash's testimony to indicate that he intended his conclusions to be interpreted as merely speculative rather than probable or likely. Certainly the substance of those opinions may render them unpersuasive, but there is no basis for striking them altogether. I also find that Defendant gave timely notice of the fact that Dr. Nash likely would offer testimony as to Dr. Mart's medical opinions. In the cover letter appended to its final disclosures Defendant specifically noted that Dr. Mart's report had not yet been produced. Presumably with that in mind, it reserved the right to have Dr. Nash comment "on any additional medical or factual evidence presented." Thereafter, upon receipt of Dr. Mart's report, Defendant seasonably produced letters from Dr. Nash in which he expressed his supplemental opinions. There is no basis for any claim of surprise or prejudice on Claimant's part. Claimant's Motion to Strike Dr. Nash's Hearing Testimony is DENIED. Motion f for Directed Verdict as to Compensability of Claimant's Psychological Injury The arguments Claimant has made in support of this motion (which more properly should be characterized as one for summary judgment) essentially require the fact-finder to weigh and consider all of the evidence, judge each witness' credibility and make both factual and legal determinations on each of the disputed issues. Claimant's Motion for Directed Verdict is DENIED. 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 contained in the Department's file relating to this claim. Claimant's Cervical Spine Injury 3. Claimant worked for Defendant as a housekeeper. On March 18, 2005 she slipped and fell on a wet floor. Claimant injured her neck in the fall. Defendant accepted this injury as compensable and paid workers' compensation benefits accordingly. 4. Over the course of the next three years Claimant underwent three surgeries, including fusions at two cervical spine levels. Unfortunately, her symptoms, which included pain, muscle spasms and limited range of motion in her neck and right shoulder, persisted. 5. Following her third surgery, in February 2009 Claimant's treating neurosurgeon, Dr. Magnadottir, determined that she had reached an end medical result. The Department later approved the parties' proposed Agreement for Permanent Partial Disability Compensation (Form 22), by the terms of which Claimant received compensation for a 23.5% whole person permanent impairment referable to her cervical spine. 6.Because of her neck injury Claimant was unable to perform her full duties as a housekeeper. After a failed trial of part-time modified-duty work, she ceased working altogether for Defendant in January 2007. 7. At Defendant's request, Claimant underwent an independent medical examination with Dr. Wieneke, an orthopedic surgeon, in March 2009. Dr. Wieneke determined that Claimant was capable of sedentary work. A functional capacities evaluation conducted in July 2009 confirmed this determination, at least on a part-time basis, up to five hours daily. The evaluation recommended various other restrictions as well, including that Claimant refrain from sustained or repetitive use of her right arm away from her body, that she be limited from looking down to perform work at a desk and that she be allowed frequent positional changes. Claimant's Psychological Conditions 8. Claimant has a longstanding history of psychological trauma, depression and anxiety. Medical records dating back to 1999 document various periods during which she received mental health counseling. Prior to the March 2005 work injury, however, Claimant had not actively treated for any mental health issues since December 2003. 9. In March 2007 Claimant resumed mental health treatment with Terry Boni, a counselor with whom she had treated previously. As before, one aspect of Ms. Boni's treatment focused on assisting Claimant to resolve the psychological trauma she had experienced in her distant past. Another principal area of concern, however, related to the impact that the March 2005 work injury had had on Claimant's life. Claimant expressed anxiety and frustration regarding the impact that her chronic pain and physical limitations were having on her ability to work and her remaining career options. 10. Ms. Boni diagnosed Claimant with recurrent, moderate...