Elvia Konjuhovac
v.
University of Vermont
Opinion No. 06-21WC
Vermont Workers Compensation Decisions
State of Vermont Department of Labor
March 16, 2021
Hearing held via Microsoft Teams on November 17, 2020 Record
closed on December 21, 2020
State
File No. KK-64597
Christopher McVeigh, Esq., for Claimant
David
Berman, Esq., for Defendant
By:
Stephen W. Brown, Administrative Law Judge
OPINION
AND ORDER
Michael A. Harrington Commissioner
ISSUES
PRESENTED:
1. Were
the spinal surgeries performed by David Lunardini, M.D.
reasonable and necessary medical treatment for
Claimant’s accepted spinal condition?
2. Is
Claimant at end medical result, and if so, as of what date?
EXHIBITS:
Joint
Medical Exhibit (“JME”)
Preservation
Deposition of David Lunardini, M.D.
FINDINGS
OF FACT:
1. I
take judicial notice of all relevant forms in the
Department’s file for this claim.
2.
Claimant is a 49-year-old woman originally from Bosnia. She
has lived in the United States since approximately 1997.
Since then, she has worked in multiple jobs requiring
physical labor at various colleges and universities in
Vermont, including Middlebury College, Saint Michael’s
College, and most recently, Defendant University of Vermont,
which employed her as a custodian. In that capacity, she
performed physically demanding work including cleaning,
shoveling snow, and carrying trash. This work involved
frequent lifting and bending. Between approximately 2016 and
May 2018, she was able to perform these activities without
significant difficulty.
3.
Before May 2018, she was also physically active outside the
workplace. She participated in Taekwondo, played basketball,
actively gardened and raised chickens, performed household
chores, bicycled, and took long walks nearly every day. While
Claimant’s medical records reflect some back-related
complaints in 2008 (JME 1-3) and 2016 (JME 129-134), there is
no evidence that she suffered from any chronic or seriously
limiting back pain before May 2018.
4. On
May 20, 2018, while working for Defendant, Claimant knelt
down to remove three layers of duct tape from a baseboard in
a university dormitory, but there were several items of
furniture in the way. She moved a dresser toward her and felt
pain in her lower back and into her legs. Defendant accepted
her lower back injury as compensable and paid some
workers’ compensation benefits accordingly.
5.
Following her May 2018 injury, Claimant’s physical
activity level decreased substantially. Although she could
still perform some basic household chores, she could not walk
like she used to and increasingly relied on her husband. It
also became difficult for her to sleep at night, even after
purchasing a new mattress and altering her sleeping position.
6.
Claimant has received extensive conservative medical
treatments including Lyrica, gabapentin, epidural steroid
injections, physical therapy, massage therapy, and pool
therapy. Although some of these treatments have provided some
relief, she still experienced low back pain, shooting pain
into her right leg, and numbness in her right foot.
7. In
December 2019, Clarence Ivey, D.O., one of Claimant’s
treating physicians who provided her with multiple
injections, suggested that surgery might help and referred
her to consult with orthopedic surgeon David Lunardini, M.D.
(See JME 812-831).
8. Dr.
Lunardini first met with Claimant in February 2020. (JME
842). He asked her about her symptoms, conducted a physical
examination, and reviewed diagnostic studies including
x-rays, an MRI, a SPECT CT scan, and an EMG.
9. Dr.
Lunardini advised Claimant that he believed that her pain was
related to her L5 nerve root and discussed the possibility of
spinal surgery, specifically an L5-S1 laminectomy and right
L5 foraminotomy. He advised her that that surgery was
intended to improve her leg pain, but that it may or may not
improve her numbness or back pain. He expected this surgery
to increase Claimant’s functionality by eventually
decreasing her pain, and Claimant confirmed that those were
acceptable goals to her. (See Lunardini Deposition, pp.
14-15).
10. Dr.
Lunardini ultimately performed two spinal surgeries on
Claimant, the first as planned on September 29, 2020, and a
revision surgery on October 2, 2020. (See JME 842-844;
913-919; see also Findings of Facts Nos. 14-20, infra). These
surgeries substantially relieved Claimant’s right leg
pain, but she still has low back pain and has some increased
right leg numbness.
11.
Claimant was still recovering from her surgeries when she
testified at the formal hearing. She was in visible
discomfort and used a walker.
12.
Defendant has denied the compensability of Dr.
Lunardini’s surgeries on the grounds that they were not
medically reasonable or necessary. Defendant also seeks to
discontinue temporary disability benefits on the ground that
Claimant reached end medical result in September 2019, before
Dr. Lunardini performed the surgeries described above.
Expert
Medical Testimony
13.
Both parties presented expert medical testimony in support of
their respective contentions. Claimant presented Dr.
Lunardini as her treating surgeon and Verne Backus, M.D., who
performed an independent medical examination (IME) of
Claimant on August 24, 2020. Defendant presented Nancy
Binter, M.D., who performed an IME of Claimant on August 23,
2019 and supplemented her IME report on March 27, 2020.
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