Vohnoutka v. Ronnie’s Cycle Sales of Bennington, Inc., 101217 VTWC, 16-17WC

Case DateOctober 12, 2017
CourtVermont
Tony Vohnoutka
v.
Ronnie’s Cycle Sales of Bennington, Inc.
Opinion No. 16-17WC
Vermont Workers Compensation Decision
State of Vermont Department of Labor
October 12, 2017
         State File No. FF-00938           Claimant, pro se.           Jennifer Meagher, Esq., for Defendant.           Phyllis Phillips, Esq. Administrative Law Judge.           RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT           Lindsay H. Kurrle, Commissioner.          ISSUE PRESENTED:          Is Defendant entitled to judgment in its favor as a matter of law on the question whether Claimant is entitled to additional medical or indemnity benefits causally related to his February 22, 2013 compensable cervical spine injury?          EXHIBITS:          Defendant's Exhibit A: Opinion and Order, Vohnoutka v. Ronnie's Cycle Sales of Bennington, Inc., Opinion No. 20-16WC (November 7, 2016)          Defendant's Exhibit B: Ruling on Defendant's Motion for Summary Judgment, Vohnoutka v. Ronnie's Cycle Sales of Bennington, Inc., Opinion No. 01-16WC (January 25, 2016)          Defendant's Exhibit C: Formal Hearing Docket Referral, May 19, 2017          Defendant's Exhibit D: Medical records, 05/06/2013-09/13/2017          Defendant's Exhibit E: Correspondence from Paula Liberty, approving Employer's Notice of Intention to Discontinue Payments, June 27, 2017          Defendant's Exhibit F: Correspondence from Attorney Meagher to Administrative Law Judge Phillips, July 13, 2017          Defendant's Exhibit G: Correspondence from Attorney Meagher to Claimant, July 13, 2017          Defendant's Exhibit H: Correspondence from Paula Liberty, approving Employer's Notice of Intention to Discontinue Payments, October 6, 2017          Department Exhibit 1: Correspondence from Paula Liberty, March 20, 2017          FINDINGS OF FACT:          The findings of fact as stated in the Commissioner's Opinion and Order in Vohnoutka v. Ronnie's Cycle Sales of Bennington, Inc., Opinion No. 20-16 (November 7, 2016) (Defendant's Exhibit A) and in the Commissioner's Ruling on Defendant's Motion for Summary Judgment, Vohnoutka v. Ronnie's Cycle Sales of Bennington, Inc., Opinion No. 01-16WC (January 25, 2016) (Defendant's Exhibit B) are hereby incorporated by reference. In addition, considering the evidence in the light most favorable to Claimant as the non-moving party, State v. Delaney, 157 Vt. 247, 252 (1991), I find the following facts:          1. The Commissioner previously determined that Claimant suffered a compensable soft-tissue and posterior element cervical spine injury with resulting cervicalgia while working in the course and scope of his employment for Defendant on or about February 22, 2013. Opinion and Order, Vohnoutka v. Ronnie's Cycle Sales of Bennington, Inc., Opinion No. 20-16WC (November 7, 2016) (Defendant's Exhibit A).          2. In the context of her November 2016 ruling, the Commissioner ordered Defendant to pay for all reasonable medical services and supplies referable to treatment of Claimant's compensable neck injury, in accordance with 21 V.S.A. §640(a). In the event that upon reaching an end medical result, Claimant was determined to have suffered a ratable permanent impairment, the Commissioner further ordered Defendant to pay permanent partial disability benefits in accordance with 21 V.S.A. §648. Id.          3. Also in the context of her November 2016 ruling, the Commissioner determined that Claimant had failed to establish his entitlement to temporary disability benefits for any period from December 9, 2014 through November 7, 2016. Id. Previously, the Commissioner had determined that Claimant had failed to establish his entitlement to temporary disability benefits for any period from the date of injury until December 9, 2014. Ruling on Defendant's Motion for Summary Judgment, Vohnoutka v. Ronnie's Cycle Sales of Bennington, Inc., Opinion No. 01-16WC (January 25, 2016) (Defendant's Exhibit B). Claimant did not appeal either of these determinations. His entitlement to temporary disability benefits for any period prior to November 8, 2016 has been conclusively determined against him, therefore.          Claimant's Medical Treatment and Work Status after November 7, 2016          4. Claimant resumed treatment with his primary care provider, Nurse Practitioner Melanie Clark, on December 30, 2016. Prior to that, he had not treated for his compensable injury since December 2014. Defendant's Exhibit D. Ms. Clark did not physically examine Claimant on that date; rather, she referred him to an orthopedist for further evaluation. Based solely on his subjective complaints, she determined that his "percentage of temporary impairment" was "100%."1 Ms. Clark declined to specify any work limitations, stating only, "Due to pain and ongoing workers' comp claim will wait to release to work until seen by orthopedic." Defendant's Exhibit D.          5. At Ms. Clark's referral, Claimant underwent an orthopedic evaluation with Dr. Jackson on January 23, 2017. Defendant's Exhibit D. Dr. Jackson's medical record reflects the following findings on objective examination:
Neck is supple . . . No significant tenderness across the cervical paraspinal musculature or across the upper trapezius region. Cervical spine range of motion is intact without limitations at end range. Spurling test is negative.2 There is no significant limitation in shoulder range of motion.
         6. Dr. Jackson's diagnostic impression was "status post a work-related injury in 2013 with continued neck pain and upper limb pain." As treatment, he recommended a cervical spine MRI "to rule out the possibility of disc herniation versus spinal stenosis," and physical therapy "to help improve strength and decrease pain and improve range of motion." Regarding Claimant's ability to work, Dr. Jackson responded to the question, "What is the percentage (0-100%) of temporary impairment?" as follows: "100% at this time until studies can be reviewed." 3 Id.          7. Defendant approved without prejudice Dr. Jackson's preauthorization request for both a cervical MRI and a six-week course of physical therapy. Id. Claimant underwent the MRI, but did not pursue physical therapy. Defendant's Statement of Undisputed Material Facts, ¶12.          8. Claimant underwent a cervical spine MRI on March 2, 2017. The study revealed a central disc protrusion at the C5-6 level, with focal extrusion abutting the right C5 nerve root, "age-indeterminate," and disc desiccation at additional levels, "likely chronic in nature." Defendant's Exhibit D.          9. Claimant returned to Dr. Jackson for further evaluation on March 28, 2017. Dr. Jackson commented that his neck and right upper limb pain corresponded with the MRI findings indicative of a C5-6 disc extrusion. As treatment, he again recommended physical therapy "to help improve strength and decrease pain." He also suggested the possibility of an epidural steroid injection, but Claimant "deferred at this time." As for work status, Dr. Jackson rated the "percentage (0-100%) of [Claimant's] temporary impairment" as "50% moderate disability," 4stating that "the patient does have chronic symptoms which corresponds [sic] with his MRI." Defendant's Exhibit D.          10. As before, although Defendant authorized (without prejudice) a six-week course of physical therapy in accordance with Dr. Jackson's recommendation, id., Claimant failed to pursue treatment. Defendant's Statement of Undisputed Material Facts, ¶14.          11. Claimant returned to Dr. Jackson on May 15, 2017. Dr. Jackson's diagnosis, as stated on a June 9, 2017 New York Workers' Compensation Board Progress Report (Form C-4.2) was cervical radiculopathy and cervicalgia. His treatment recommendations included consideration of an epidural steroid injection and/or a surgical consultation, both of which...

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