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Martin v. Bennington Potters
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Martin v. Bennington Potters (Dec. 30, 1997)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
) State File No. F-05649
Cheryl Martin )
) By: Margaret A. Mangan
v. ) Hearing Officer
)
Bennington Potters ) For: Steve Janson
) Commissioner
)
) Opinion No. 42-97WC
Hearing held at Montpelier, Vermont, on August 15 and September 12, 1997
Record closed on October 1, 1997
APPEARANCES:
Attorney Sam W. Mason for the Claimant
Attorney Eric A. Johnson for the Defendant
ISSUES:
1. Is claimant at a medical end point?
2. Are the proposed arthrogram and MRI reasonable and necessary?
FINDINGS OF FACT:
1. At all times relevant to this action, claimant was defendant's
"employee" and defendant Bennington Potters was claimant's "employer" as
those terms are defined in Vermont's Workers' Compensation Act (the "Act").
2. At all times relevant to this action, The Travelers Insurance Company
("Travelers") was defendant's workers' compensation insurance carrier.
3. Claimant's work involved glaze mixing, a process that required a
twisting motion of the upper extremities.
4. On September 21, 1992, claimant injured her left shoulder while mixing
ceramic glaze. The drill she was using got stuck, wrenching and pulling her
left shoulder. She was seen in an emergency room and treated with a sling,
anti-inflammatory medications, and ice. Claimant testified that she never
had problems with either of her shoulders before the September 1992 mixing
incident.
5. On September 24, 1992, claimant saw Dr. Richard Popiel, an occupational
health physician at the Southwestern Vermont Medical Center. Dr. Popiel
documented the work-related left shoulder injury, determined on physical
examination that she had no deformity, discoloration or redness, that she had
full, but tentative, range of motion and that her muscle strength in the left
arm and shoulder was normal. Dr. Popiel diagnosed resolving left shoulder
strain. He recommended light duty work for a couple of days, with return to
regular duty. On September 29, 1992, Dr. Popiel determined that claimant
could return to work with no restrictions.
6. Claimant returned to full-time, full-duty work for the next nine months.
7. On November 10, 1992 claimant returned to Dr. Popiel with a complaint of
right shoulder pain. X-rays revealed calcific periarthritis. Treatment was
ice and anti-inflammatory medications.
8. On December 15, 1992 claimant saw Dr. Manindra Ghosh, also an
occupational health physician at the Southwestern Vermont Medical Center.
Dr. Ghosh noted early findings of carpal tunnel syndrome and resolving
bursitis of the right shoulder.
9. At a February 18, 1993 office visit, Dr. Popiel documented claimant's
complaint of bilateral shoulder pain. He noted that claimant's physical
examination had not changed. He diagnosed bilateral calcific periarthritis
and referred her to Dr. Ketterer.
10. The medical records indicate that any discomfort claimant had was mild,
that her shoulder range of motion was normal and that she was able to work
without problems. In contrast, she testified that she has been in
excruciating pain from the time of the 1992 incident to the present,
testimony I cannot accept in light of the conflicting information in the
medical records prepared at the time of the office visits. Claimant's memory
may be clouded by the discomfort she now feels.
11. Claimant worked up to the time she had the first surgical procedure on
her shoulder in June 1993.
12. On April 15, 1993, claimant saw Dr. William Ketterer, an orthopedic
surgeon, who diagnosed bilateral calcific tendinitis, worse on the right than
the left. At his deposition, Dr. Ketterer explained that the calcium
deposits were in the rotator cuff tendon that goes under the acromion, the
bone on the end of the shoulders. Claimant had a large deposit on the right
shoulder, a smaller one on the left. Pinching on the tendon, Dr. Ketterer
explained, caused claimant's pain. In June 1993, Dr. Ketterer performed an
acromioplasty, i.e. he filed off the acromion. He also removed the calcium
deposit in the right shoulder and injected her arms with a steroid for carpal
tunnel syndrome. The procedure was done on an outpatient basis. Typical
recovery from that operation is three months before an unrestricted return to
work.
13. Claimant's pain symptoms did not dramatically improve after that
operation and, as a result, claimant did not follow the typical post
operative therapy of stretching exercises and job simulation.
14. Dr. Ketterer recommended one month of work hardening, a type of physical
therapy aimed at recreating what she would do at work, then a return to work
half time.
15. Claimant tried to return to work about six months later. She worked one
day, then took herself out of work because of the pain, a fact she reported
to Dr. Ketterer's office by telephone on January 7, 1994.
16. Claimant has never returned to work.
17. Because the first surgery did not alleviate claimant's pain, Dr.
Ketterer suggested an arthrogram of the shoulder to determine whether she had
rotator cuff disease or tear. On May 25, 1994, Dr. Alan Ericksen performed
the arthrogram which revealed no abnormalities.
18. In June 1994 Dr. Ketterer determined that claimant was not likely to
improve further. But he also determined that there was a reasonable chance
that an open procedure would improve disabling pain in her shoulder.
19. On August 18, 1994 Dr. Ketterer performed a second surgical procedure on
claimant's right shoulder for chronic rotator cuff pain. He did not find
calcium deposits or defects in the rotator cuff, but he excised a thickened
bursa and broke up adhesions.
20. Claimant's pain condition did not significantly improve after the second
surgery. However, the range of motion in her shoulders postoperatively was
excellent. In fact, the records suggest that she never had problems with
shoulder range of motion.
21. After the second surgery, Dr. Ketterer determined that claimant had a
"40% impairment of the right upper extremity secondary to the chronic pain
with use of the right shoulder."
22. On February 27, 1995 Dr. Ketterer noted that claimant had calcium
deposits in her left shoulder. Conceding that surgical intervention on the
right for that same problem was not successful, Dr. Ketterer nevertheless
recommended surgery on the left shoulder because her symptoms on the left
were worse than on the right and because the calcium deposit was large.
23. On May 30, 1995 Dr. Ketterer performed a third surgical procedure, an
acromioplasty and calcium excision of the left shoulder. Dr. Ketterer
corrected any problems he saw which included shaving off the acromion,
removing bursal tissue and detaching a ligament. The rotator cuff itself was
intact.
24. Her postoperative progress was like the progress that followed surgery
on her right shoulder. Claimant did not improve dramatically, was stiff, and
had to struggle to get full range of motion.
25. On November 22, 1995 Dr. Kuhrt Wieneke, an orthopedic surgeon, examined
claimant for the employer. He determined that she was at a medical end
result with a 5% impairment of the left upper extremity and 10% on the right.
26. On December 4, 1995, Dr. Ketterer saw claimant for a follow-up, sixteen
months after the right shoulder surgery and seven months after the left
shoulder surgery. Dr. Ketterer documented claimant's continued pain, even at
rest, which increased with movement. He noted that he did not have a
surgical way of relieving that pain. And he wrote that claimant "does not
feel that she could do even simple tasks such as clerical work." On
examination that day claimant had full range of motion of her shoulders when
her scapulae were fixed.
27. On March 18, 1996 Dr. Ketterer determined that both shoulders were
unchanged, although therapy gave her a feeling of less tightness at the
extremes of motion.
28. In a June 12, 1996 letter Dr. Ketterer wrote that claimant's symptoms
had reached a plateau and "from that standpoint she probably has reached a
medical end point." In the same letter, he described a plan to reduce
symptoms that might involve more surgery. He recommended an arthrogram of
the shoulder to check for a rotator tear and an MRI to get an idea of the
health of the fibers of the rotator cuff. Whether it would be necessary to
open the shoulder would depend on the results of those tests.
29. The insurer has offered vocational rehabilitation benefits to claimant
to help return her to the work force. Claimant has refused to accept
vocational rehabilitation or psychological counseling.
30. To resolve the issue whether claimant was at a medical end result, the
parties agreed to a third evaluation, by Dr. Donald Kinley, an orthopedic
surgeon. Dr. Kinley had examined claimant back in February of 1994 when he
determined that she could work at a job that did not require work repeatedly
at or above the shoulder level. After examining her again on October 16,
1996, Dr. Kinley determined that claimant had reached a medical end result
around June of 1996. In his opinion, no further intervention would be
beneficial.
31. Dr. Kinley opined that claimant has a sedentary work capacity and that
she should be working.
32. In Dr. Kinley's opinion, the proposed arthrogram and MRI are not
reasonable or necessary in this case because they are not likely to diagnose
a treatable condition. He opined that there is a greater than 50% chance
that the tests will reveal nothing, although they are not likely to have a
detrimental effect.
33. On October 21, 1996 Dr. Ketterer reiterated his positions that 1)
claimant's condition was unchanged and 2) he recommended an arthrogram, MRI
and arthroscopic exploration. He suspected either a torn rotator cuff or
impinged bursal sac.
34. Dr. Kinley noted that earlier surgical procedures proved that the
bursa was in normal state and that there was no tear in the rotator cuff
tendon.
CONCLUSIONS OF LAW:
1. In workers' compensation cases, the claimant has the burden of
establishing all facts essential to the rights asserted. Goodwin v.
Fairbanks, Morse Co., 123 Vt. 161 (1962). The claimant must establish by
sufficient credible evidence the character and extent of the injury as well
as the causal connection between the injury and the employment. Egbert v.
The Book Press, 144 Vt. 367 (1984).
2. There must be created in the mind of the trier of fact something more
than a possibility, suspicion or surmise that the incidents complained of
were the cause of the injury, and the inference from the facts proved must be
the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17
(1941).
3. A claimant is totally disabled for work under 21 V.S.A. § 642, while
she is in the healing period and not yet at a maximum medical improvement.
Orvis v. Hutchins, 123 Vt 18 (1962). When the recovery process has ended,
the temporary aspects of the workers' compensation are concluded. See, Id.
at 24; Moody v. Humphrey, 127 Vt. 52, 57 (1968).
4. Medical end result is the point at which "a person has reached a
substantial plateau in the medical recovery process, such that significant
further improvement is not expected, regardless of treatment." Workers'
Compensation Rule 2 (h). Once a claimant has reached medical end result, any
benefits due are treated as permanent. Bishop v. Town of Barre, 140 Vt. 564,
571 (1982).
5. Whether the proposed tests and procedures are medically necessary and
whether this claimant has yet reached a medical end result involves a
consideration of three expert medical opinions.
6. In considering the weight to be given different expert opinions, this
Department has traditionally examined the following criteria: 1) the length
of time the physician has provided care to the claimant; 2) the physician's
qualifications, including the degree of professional training and experience;
3) the objective support for the opinion; and 4) the comprehensiveness of the
respective examinations, including whether the expert had all relevant
records. Miller v. Cornwall Orchards, Op. No. 20-97WC (Aug. 4, 1997);
Gardner v. Grand Union Op. No. 24-97WC (Aug. 22, 1997).
7. Dr. Ketterer, as claimant's treating physician, has provided care to
claimant over quite a few years. Dr. Kinley had evaluated her before any
conflict arose in this case and again at the request of the parties for an
independent examination. Dr. Wieneke reviewed all relevant medical records
and examined the claimant. Although at the hearing claimant made much of the
suggestion that Dr. Wieneke had not spent enough time with her for an
adequate assessment, I find nothing in the duration of the examination or in
the opinion rendered to conclude that it was deficient in any way. All three
physicians are orthopedic surgeons who are qualified by education and
experience to render an opinion in this case. All provided comprehensive
assessments based on examinations and relevant records. The crucial
difference lies with the objectivity with which the opinions were rendered.
8. Although this Department often gives greater weight to the opinion of
the treating physician, that is not the case when objectivity seems to be
compromised. See McEnany v. Shoreline Corp. Op. No. 31-97WC (Oct. 4, 1997).
Doctors Kinley and Wieneke have approached this case with emotional and
intellectual distance. They would not be the doctors who would perform the
tests and surgery that could result from an order in this case. Therefore,
because the opinions of Dr. Wieneke and Kinley are supported by objective
evidence, including claimant's clinical history, because their assessments
were comprehensive, and because they have had considerable orthopedic
training and experience, their opinion that the proposed diagnostic tests are
not reasonable or necessary is accepted.
9. Claimant has a strong opinion about her inability to work. She is in
obvious discomfort and is a convincing, persistent individual. She is
unwilling to accept any proposed interventions that involve her active
participation, in part because she hopes for a surgical cure even though
surgery has not helped her significantly in the past. Dr. Ketterer's opinion
is an effort to offer her what she so desperately wants. Her hope that
future tests will reveal what past tests have failed to show, especially in
the absence of any work in the interim, cannot justify an order from this
Department that the employer pay for those tests.
10. Finally, even though Dr. Ketterer has supported this claim, his own
records show that she has reached a plateau. Doctors Kinley and Wieneke
agree. Claimant has reached a medical end result.
ORDER:
Based on the foregoing Findings of Fact and Conclusions of Law, it is
determined that:
1. Claimant has reached a medical end result; and
2. the proposed MRI and arthrogram are not reasonable or necessary.
Dated at Montpelier, Vermont, this __30th___ day of December, 1997.
___________________
Steve Janson
Commissioner
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