Omerovic v. University of Vermont Medical Center, 080420 VTWC, 13-20WC

• Case Date: August 04, 2020
• Court: Vermont

Jasmina Omerovic v. University of Vermont Medical Center Opinion No. 13-20WC Vermont Workers Compensation Decisions State of Vermont Department of Labor August 4, 2020          State File No. HH-54558           Christopher McVeigh, Esq., for Claimant.           Jennifer Moore, Esq., for Defendant.           Stephen W. Brown, Administrative Law Judge.          RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT           Michael A. Harrington Commissioner.          ISSUE PRESENTED:          Does the Department’s earlier decision in this case (Opinion No. 18-19WC) collaterally estop Claimant from proving that the cervical spine surgery she now seeks is reasonable medical treatment for her accepted physical injuries?          EXHIBITS:          Defendant’s Statement of Undisputed Material Facts (“SUMF”)          Defendant’s Exhibit A: Department’s decision in Omerovic v. University of Vermont Medical Center, Opinion No. 18-19WC (October 15, 2019)          Defendant’s Exhibit B: Medical Record from Martin Krag, M.D., dated December 19, 2019          Defendant’s Exhibit C: Medical Provider’s Preauthorization Form signed by Martin Krag, M.D., dated January 14, 2020          Defendant’s Exhibit D: Claimant’s Notice and Application for Hearing (Form 6), dated January 25, 2020          Claimant’s Response to Defendant’s Statement of Undisputed Material Facts (“CRSUMF”)          Claimant’s Exhibit 1: Email chain between counsel and Department dated March 21, 2019 1          BACKGROUND          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:          Relevant Procedural History          1. This case arises out of a physical assault that Claimant suffered on October 14, 2015, while she was working for Defendant as a licensed nursing assistant. This is the Department’s third opinion in this case. The first, Opinion No. 15-18WC (November 13, 2018) (“Omerovic I”), concerned a disputed witness subpoena. The second, Opinion No. 18-19WC (October 15, 2019) (“Omerovic II”), followed a two-day formal hearing that occurred on March 25 and 26, 2019. The record for that hearing closed on July 8, 2019. See id.          2. Omerovic II resolved the following three issues:

(1) Did Claimant suffer post-traumatic stress disorder (PTSD) or other psychological injury as a result of her accepted October 14, 2015 workplace injury?

(2) Are cervical spinal injections reasonable and necessary medical treatment related to Claimant’s accepted workplace injury?

(3) Is physical therapy reasonable and necessary medical treatment related to Claimant’s accepted workplace injury?

         3. At the 2019 formal hearing, both parties presented extensive lay testimony and multiple expert witnesses in support of their contentions. See generally Omerovic II. The parties supplied documentary evidence including a Joint Medical Exhibit comprising approximately 1,000 pages of medical records. See id.          4. The Department resolved the first issue in Claimant’s favor but decided the other two issues in Defendant’s favor. See id. Neither party appealed Omerovic II, and the deadline for appeal has passed.          5. This opinion presumes the reader’s familiarity with Omerovic II.          Findings and Conclusions in Omerovic II Relevant to the Present Dispute          6. The evidence at the 2019 formal hearing showed that Claimant had a longstanding medical history of neck, back, and shoulder pain that significantly predated her 2015 workplace injury, and that her baseline pre-injury condition was marked by chronic neck pain. See Omerovic II, Findings of Fact Nos. 7-13.          7. In finding that Defendant was not responsible for the disputed injections and physical therapy, the Department credited Defendant’s expert witness, Nancy Binter, M.D., over Claimant’s expert witness, Michael Borrello, M.D.          8. In Dr. Binter’s opinion, which the Department credited, Claimant’s October 2015 workplace incident most likely caused a soft tissue neck injury that resolved after several months, and Claimant’s neck condition returned to its baseline state by at least 2018. Id., Findings of Fact Nos. 70-76. Any need Claimant had for injections and physical therapy was no longer related to her October 2015 workplace injury, because she had returned to her pre-injury baseline condition. Id., Finding of Fact Nos. 73-74. Thus, the Department concluded that Claimant had not sustained her burden to prove the necessary causal relationship between her work injury and the injections; it also concluded that Defendant had sustained its burden to discontinue physical therapy. Id., Conclusions of Law Nos. 12-19.          Presently-Proposed Surgery for Claimant’s Neck and Shoulder Pain          9. In December 2019, orthopedic surgeon Martin Krag, M.D., evaluated Claimant for neck and right upper extremity pain. (SUMF 21; Defendant’s Exhibit B; CRSUMF 21).2 He noted that Claimant experienced a “significant increase” in her right upper limb tingling in October 2019. (Defendant’s Exhibit B at 1). He assessed her with a right C5-C6 disc herniation and C6 radiculopathy, for which he recommended several treatments, including a discectomy, nerve root decompression, and disc replacement at the C5-C6 level. (Defendant’s Exhibit B at 3).          10. In January 2020, Dr. Krag’s office...