Wiggins v. Ben & Jerry’s Homemade, Inc., 122020 VTWC, 03-20WC

• Case Date: December 20, 2020
• Court: Vermont

Brian Wiggins v. Ben & Jerry’s Homemade, Inc. Opinion No. 03-20WC Vermont Workers Compensation Decisions State of Vermont Department of Labor December 20, 2020           Hearing held in Montpelier on August 26, 2019          State File No. T-20194           Ronald A. Fox, Esq., for Claimant.           Erin J. Gilmore, Esq., for Defendant           Beth A. DeBernardi, Administrative Law Judge.          OPINION AND ORDER           Michael A. Harrington, Interim Commissioner.          ISSUE PRESENTED:          Does Claimant’s current regimen of prescription opioid medications constitute reasonable medical treatment for his June 23, 2003 compensable work injury?          EXHIBITS:          Claimant’s Exhibit A: Medical records from December 2015 through August 2019          Claimant’s Exhibit B: Controlled Substance Treatment Agreements          Defendant’s Exhibit 1: Medical records from June 2003 through October 2019          Defendant’s Exhibit 2: Curriculum Vitae of Andrea Wagner, MD          Defendant’s Exhibit 3: Record of Dr. Jeffrey Haddock’s Conditioned License          Defendant’s Exhibit 4: Dr. Haddock’s Temporary Voluntary Limitation of Practice Agreement dated December 5, 2018          CLAIM:          Medical benefits pursuant to 21 V.S.A. § 640(a) Costs and attorney fees pursuant to 21 V.S.A. § 678          FINDINGS OF FACT:          1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in the Vermont Workers’ Compensation Act.          2. I take judicial notice of all forms and correspondence in the Department’s file relating to this claim.          Claimant’s June 2003 Work Injury and Claim for Benefits          3. Claimant is a 45-year-old man who lives in Fairfax, Vermont, with his wife and two children.          4. On June 23, 2003, Claimant was working in Defendant’s warehouse. He tried to lift a freight elevator door, but the door was jammed in its tracks. When he forced the door open, he felt a sharp pain in his lower back.          5. Claimant sought immediate medical treatment and was diagnosed with a lumbar strain. He was released to return to work on restricted duty the next day and continued to work for Defendant for five months.          6. Defendant accepted Claimant’s injury as compensable and began paying workers’ compensation benefits accordingly.          7. In November 2015 the parties entered into a Compromise Agreement (Form 16) and Addendum, which the Commissioner approved on November 13, 2015. The agreement provides for a full and final settlement of all workers’ compensation benefits except for medical benefits, which remain open. The Addendum provides in relevant part as follows:

Within 60 days of the Commissioner’s approval of the Form 16 and Addendum, Defendant shall present a plan to Claimant for narcotic rehabilitation. The parties shall work together collaboratively in good faith in order to engage Claimant in this narcotic rehabilitation plan, however the Form 16 and Addendum shall proceed forthwith.

Addendum, para. 9.          8. Despite agreeing to engage in a narcotics rehabilitation plan, Claimant did not do so. Accordingly, on January 16, 2018, Defendant filed a Notice and Application for Hearing (Form 6) on whether he is required to enter into such a program, either pursuant to the Compromise Agreement or pursuant to the statutory provision governing reasonable medical services and Workers’ Compensation Rule 12.1720, which requires a safe taper plan for the discontinuance of opioid medications.          Claimant’s Medical Course          9. When he was injured in June 2003, Claimant received a prescription for a short-acting opioid pain medication and a physical therapy referral. Over the following weeks and months, he participated in physical therapy and chiropractic treatment.          10. In October 2003 an MRI study identified two herniated discs and a sequestered disc fragment in Claimant’s lumbar spine. He began taking OxyContin in addition to his short-acting opioid medication. In November 2003 he saw orthopedic surgeon Warren Rinehart, MD. Dr. Rinehart recommended epidural injections, but they did not provide significant pain relief.          11. In May 2004 Claimant underwent a lumbar disc excision by orthopedic surgeon William Abdu, MD, at Dartmouth-Hitchcock Medical Center. At his five-week follow up appointment, Claimant reported considerable overall improvement. Accordingly, Dr. Abdu implemented a narcotic weaning schedule for Claimant’s OxyContin. In September 2004 Dr. Abdu noted that Claimant’s spinal symptoms had “completely resolved,” with no leg pain or low back pain, and that he had successfully weaned off his opioid medications.          12. In March 2005 Claimant saw rehabilitation physician Mark Bucksbaum, MD. Dr. Bucksbaum placed Claimant at an end medical result for his work injury with a 12 percent whole person impairment. He also prescribed an opioid medication for Claimant’s reported back pain flare ups.          13. In June 2006 Claimant reported to Dr. Rinehart that weaning off his OxyContin in 2004 made him sick and left him with sleep-disrupting pain, causing him to feel “upset” and “mean.” Defendant’s Exhibit 1, at 287. Dr. Rinehart recommended physical therapy and an eight-week course with clinical psychologist Neil Jepson. Mr. Jepson reported that Claimant was working full time in property maintenance but was experiencing significant irritability and anxiety.          14. In July 2007 Claimant visited the Spine Institute of New England. The Spine Institute recommended medial branch blocks for his low back pain, but they did not provide significant relief. Claimant continued to take opioid medications prescribed by pain management physician William Roberts, MD. Dr. Roberts prescribed 10 mg of Lorcet twice per day, alternating with 5 mg of Lorcet twice per day, for a total hydrocodone exposure of 30 mg per day.^[1]          15. On January 17, 2008, Dr. Roberts noted surprise that Claimant was back for a Lorcet refill, as his prescription should have lasted through the month. Rather than requiring Claimant to bring his medication to the office for a pill count, Dr. Roberts sent him home. Defendant’s Exhibit 1, at 335. On October 6, 2008, Dr. Roberts noted that Claimant admitted to using the majority of his higher dose opioid pills at the beginning of the month, rather than alternating his 10 mg and 5 mg pills, as prescribed. Defendant’s Exhibit 1, at 357. They made plans for a narcotics “holiday” in January 2009 to reduce his tolerance, but the holiday never took place.          Claimant’s Treatment with Opioid Pain Medications by Jeffrey Haddock, MD          16. In May 2010 Claimant began treatment with family medicine physician Jeffrey Haddock, MD, at the Thomas Chittenden Health Center. Dr. Haddock prescribed 10 mg of Lorcet every four to six hours, which was twice the daily dose of hydrocodone prescribed by Dr...