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...