2013 VT 38


Brown v. W.T. Martin Plumbing
& Heating, Inc. (2011-270)
 
2013 VT 38
 
[Filed 21-Jun-2013]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions, Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801 of any errors in order that
corrections may be made before this opinion goes to press.
 
 

2013 VT 38

 

No. 2011-270

 

Robert Brown


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Bennington
  Unit,


 


Civil Division


 


 


W.T. Martin Plumbing &
  Heating, Inc.


December Term, 2011


 


 


 


 


John
  P. Wesley, J.


 

J. Norman O’Connor, Jr., North Adams, Massachusetts, and
Donovan & O’Connor, LLP,
  Bennington, for
Plaintiff-Appellant.
 
Jeffrey W. Spencer of Law Office of Jeffrey W. Spencer,
CPCU, Essex Junction, for 
  Defendant-Appellee.
 
 
PRESENT:   Reiber, C.J., Dooley, Skoglund and
Robinson, JJ., and Eaton, Supr. J.,
           
         Specially Assigned
 
 
¶ 1.            
ROBINSON, J.  The central question in this case is whether
the workers’ compensation laws preclude an impairment rating and associated award
of permanent partial disability (PPD) benefits to an injured worker on account
of impairment associated with a condition known as Complex Regional Pain
Syndrome (CRPS) where a claimant is not diagnosed with CRPS under the criteria
listed in Chapter 16 of the American Medical Association Guides to the
Evaluation of Permanent Impairment, Fifth Edition (AMA Guides, or Guides), but
where a qualified expert confirms the existence of the condition pursuant to
other legally admissible standards sufficient to meet a reasonable medical
certainty.  The Commissioner of the Department of Labor (DOL) and the
trial court both concluded that 21 V.S.A. § 648(b) denies the Commissioner
discretion to assign an impairment rating and thus award PPD benefits for impairment
associated with CRPS where the CRPS diagnosis does not meet the diagnostic
standards in Chapter 16 of the AMA Guides.  We reverse. 
I.
¶ 2.            
In 2006, in the course of his employment as a master plumber, claimant
tore the rotator cuff in his right shoulder when he slipped and fell down a
flight of stairs.  In January 2007, claimant had surgery to repair the
rotator cuff, after which he began physical therapy.  His recovery was
complicated by adhesive capsulitis—inflammation of the shoulder joint causing
stiffness and chronic pain—as well as symptoms of CRPS.  In April 2007,
claimant underwent shoulder manipulation under anesthesia to treat the adhesive
capsulitis; the procedure resulted in increased shoulder motion, but claimant’s
CRPS symptoms persisted.  
¶ 3.            
Dr. Robert Giering, a psychiatrist and pain management specialist,
affirmed the CRPS diagnosis, relying on the diagnostic criteria from the
International Association for the Study of Pain (IASP), confirmed that the
condition was causally related to claimant’s work accident, and treated
claimant for the CRPS.  
¶ 4.            
Employer retained its own medical expert, Dr. Kuhrt Wieneke.  Dr.
Wieneke first saw claimant in March 2008.  At that time, Dr. Wieneke
confirmed the diagnosis of CRPS and concluded that claimant had not yet reached
a medical end.  Employer did not challenge the award of temporary
disability and medical benefits to claimant on account of the CRPS.  
¶ 5.            
In June 2008, Dr. Giering determined that claimant had reached an end
medical result and referred claimant to Dr. Lefkoe for an impairment
rating.  In October 2008, Dr. Lefkoe issued a sixteen-page report in which
he accepted Dr. Giering’s CRPS diagnosis and assigned a forty-six percent whole
person impairment rating calculated using the rating process for CRPS in the
AMA Guides.  
¶ 6.            
Dr. Wieneke saw claimant again in May 2009 to assess claimant’s
permanent impairment on behalf of employer.  Using the Guides, he
concluded that claimant’s CRPS had resolved and assigned a three percent whole
person rating to claimant’s shoulder injury on account of range-of-motion
limitations and generalized pain.  But because he concluded that claimant
did not satisfy the diagnostic criteria for CRPS listed in Chapter 16 of the
AMA Guides, Dr. Wieneke did not attribute any impairment for deficits or
symptoms associated with CRPS.
¶ 7.            
After a contested hearing on the question of claimant’s impairment
rating, the DOL Commissioner issued findings and conclusions.  The
Commissioner explained that CRPS is a condition of the sympathetic nervous
system characterized by burning pain throughout the affected limb.  The
Commissioner described the four categories of signs and symptoms of CRPS: (1)
pain disproportionate to what would be expected from the inciting injury and/or
pain in response to a light touch that is not normally painful; (2) changes in
skin color and/or temperature in the affected limb; (3) edema, swelling and/or
sweating in the affected limb; and (4) motor changes, such as decreased range
of motion and or motor dysfunction, and trophic changes involving abnormal nail
and/or hair growth.  
¶ 8.            
The Commissioner also explained that the AMA Guides and the IASP rely on
similar objective signs to support a CRPS diagnosis.  However, Chapter 16
of the AMA Guides requires a greater number of those signs to support a CRPS
diagnosis, and calls for consideration only of observed signs, as opposed to
reported symptoms.  For that reason, the AMA Guides’ diagnostic criteria
are more stringent than those of the IASP.[1]  
¶ 9.            
The Commissioner had no doubt that under the IASP’s diagnostic criteria claimant
was properly diagnosed with CRPS, but concluded that the record did not support
the CRPS diagnosis under the AMA Guides’ diagnostic rubric.  As a result,
the Commissioner concluded: “I am compelled to reject Dr. Lefkoe’s opinion—not
because it is unpersuasive, but because under the particular circumstances of
this case the statute requires it.”  The Commissioner found that Dr.
Lefkoe used the appropriate mechanism under the AMA Guides for rating
impairment associated with CRPS, but concluded that unless CRPS is diagnosed in
accordance with the criteria outlined in Chapter 16 of the AMA Guides, a
claimant is not entitled to a rating for impairment associated with CRPS. 
Accordingly, the Commissioner assigned a three percent whole person impairment
rating per Dr. Wieneke’s report.
¶ 10.         Claimant
appealed to the superior court which held a de novo bench trial on the question
of claimant’s permanent impairment rating.  In a thoughtful opinion, the
court compared the competing expert medical opinions and found that Dr.
Lefkoe’s evaluation was “more comprehensive and explained clearly the basis for
his opinion,” while “Dr. Wieneke was less thorough and less clear when
articulating how he arrived at his permanency rating, at one point
contradicting himself while testifying.”  The court also concluded that
Dr. Lefkoe spent considerably more time evaluating claimant than Dr. Wieneke,
and drafted a significantly longer and more thorough report.  
¶ 11.         Nonetheless,
like the Commissioner, the court concluded that it was bound to reject Dr.
Lefkoe’s rating for impairment associated with CRPS because 21 V.S.A.
§ 648(b) provides, “Any determination of the existence and degree of
permanent partial impairment shall be made only in accordance with the whole
person determination as set out in the fifth edition of the [AMA
Guides].”  The court found that the AMA Guides Chapter 16 criteria “controls both the diagnosis of impairments and the
corresponding computation of the impairment rating,” and that as a matter of
law to qualify for a permanent impairment rating “a condition must be diagnosed
in accordance with the AMA Guides 5th criteria.”  From this, the court
concluded that “as a matter of law, in order to qualify for a permanent
impairment rating, a condition must be diagnosed in accordance with the AMA
Guides 5th criteria.”[2] 
Although the court rejected Dr. Lefkoe’s rating of claimant’s impairment
associated with CRPS, it did adopt Dr. Lefkoe’s findings concerning impairment
associated with claimant’s loss of range of motion, and it increased claimant’s
impairment rating to six percent whole person.  
¶ 12.         The
sole question on appeal is whether 21 V.S.A. § 648(b) requires a
factfinder to disallow any permanent impairment rating associated with CRPS
where the diagnosis does not comport with the diagnostic standards in Chapter
16 of the AMA Guides.  
II.
¶ 13.        
A brief review of relevant aspects of Vermont’s workers’ compensation
law and the AMA Guides is helpful.  Vermont’s workers’ compensation law
requires employers to provide specified benefits on a no-fault basis to workers
who suffer “a personal injury by accident arising out of and in the course of
employment.”  21 V.S.A. § 618.  Among
the benefits potentially available to an injured worker are medical benefits, id.
§ 640, temporary total or partial disability benefits, id. §§ 642, 646, vocational rehabilitation benefits, id.
§ 641, and permanent partial or permanent total disability benefits, id.
§§ 644, 648.  
¶ 14.         The
award of temporary disability benefits is based on an individual’s incapacity
for work.  Bishop v. Town of Barre, 140 Vt. 564,
571, 442 A.2d 50, 53 (1982).  Permanent partial disability benefits
are awarded based on an assessment of an individual’s “impairment,” without
direct consideration of the impact of that impairment on an individual’s
capacity to work.  Id.; see also 21 V.S.A. § 648. 
Neither the statute nor the DOL’s rules define “impairment,” but the Vermont
Legislature has directed that permanent impairment be assessed using the AMA
Guides: “Any determination of the
existence and degree of permanent partial impairment shall be made only in
accordance with the whole person determinations as set out in the fifth edition
of the American Medical Association Guides to the Evaluation of Permanent
Impairment.”  21 V.S.A. § 648(b).[3]  The statute further provides that
the Commissioner shall adopt a supplementary schedule for rating injuries not
rated by the operative guidelines.  The DOL, by rule, has provided that
impairments for injuries not rated by the AMA Guides “shall be in proportion to
the compensation paid for similar injuries rated by the Guides.”  Workers’ Compensation Rules § 11.2500, 3 Code of Vt. Rules 24
010 003-8, available at http://www.lexisnexis.com/hottopics/codeofvtrules. 

¶ 15.         Significantly,
although the concept of a “diagnosis” may be helpful in describing or labeling
an injury, nothing in Vermont’s workers’ compensation scheme predicates a
claimant’s entitlement to benefits on the existence of a particular
diagnosis.  The threshold trigger for benefits is an “injury”—defined in
the case of physical injuries as “any harmful . . .
change in the body.”  Workers’ Compensation Rules
§ 2.1240, 3 Code of Vt. Rules 24 010 003-2, available at
http://www.lexisnexis.com/hottopics/codeofvtrules.  The touchstone
for PPD benefits is “impairment” as measured pursuant to the AMA Guides or
determined by the Commissioner if the Guides do not rate a particular type of
injury.  The Guides define impairment as “a loss, loss of use, or
derangement of any body part, organ system, or organ function.”  AMA Guides at 2 (quotations omitted).  
¶ 16.         The
AMA Guides to the Evaluation of Permanent Impairment were developed “in
response to a public need for a standardized, objective approach to evaluating
medical impairments.”  Id. at 1.  The
AMA Guides are broken into chapters, each focusing on impairment rating methods
for a different organ system or body part, and each authored by experts from
the relevant specialties.  Id.[4]  The impairment rating methodologies
vary considerably from chapter to chapter, depending on the body parts or organ
systems involved.  Some impairments can be rated
pursuant to multiple chapters.  Id. at 19. 
Although the diagnosis associated with an injury may point the examiner to the
applicable impairment rating methodology or methodologies in a given case,
“diagnosis” per se is not intrinsic to the identification or measurement of many impairments in the AMA Guides.  See,
e.g., id. at 450-79 (rating impairments
in range of motion of various joints without reference to diagnosis of
condition causing limitation in range of motion); id. at 118-120 (rating
upper digestive tract impairment with reference to symptoms and signs of upper
digestive tract disease or anatomic loss or alteration without regard to
specific underlying diagnosis).  But see id. at 231 (providing that
impairment rating for diabetes mellitus varies depending on whether diabetes is
Type 1 or Type 2). 
¶ 17.         The
Guides provide two distinct methods for rating CRPS in an upper extremity—one
in Chapter 13 relating to the central and peripheral nervous system, id.
at 343-44, and another at section 16.5e of Chapter 16
relating to the upper extremities, id. at
482-83, 495-97.  At issue in this case is the approach laid out in Chapter
16.[5] 
With respect to the diagnosis of CRPS, that chapter identifies eleven objective
diagnostic criteria for CRPS and provides that the presence of eight or more of
those factors supports a CRPS diagnosis.  Id. at 496, Table
16-16.  For the purposes of assigning an impairment rating, the Chapter
further distinguishes between CRPS I, also known as reflex sympathetic
dystrophy (RSD), and CRPS II, also known as causalgia.  Id.
at 495-96.  The CRPS I rating methodology applies
when neither the initiating causative factor nor the symptoms involve a
specific peripheral nerve or structure, and the CRPS II methodology applies
when a specific sensory or mixed nerve structure is involved.  Although
Chapter 16 lists criteria for identifying CRPS cases, the CRPS diagnosis itself
is not a variable in the rating algorithm.  Instead, the loss of motion of
the involved joints and the sensory deficits and pain associated with the
condition are the determinants of the actual impairment rating for CRPS
I.  Id. at 496. 
III.
¶ 18.         With
that in mind, we turn to the statute.  We are mindful of our traditional
deference to the Commissioner’s interpretation of workers’ compensation
statutes, calling for affirmation of the Commissioner’s construction absent a
compelling indication of error.  Wood v. Fletcher
Allen Health Care, 169 Vt. 419, 422, 739 A.2d 1201, 1204 (1999). 
We will not, however, “affirm an interpretation that is unjust or
unreasonable,”  Clodgo v. Rentavision,
Inc., 166 Vt. 548, 550, 701 A.2d 1044, 1045 (1997), or one that undermines
the regulatory purpose of the statute.  See In re Williston Inn Grp.,
2008 VT 47, ¶ 16, 183 Vt. 621, 949 A.2d 1073.  
¶ 19.         In
addition, because the workers’ compensation system is remedial, we have an
obligation to “construe the Workers’ Compensation Act liberally so that injured
employees receive benefits ‘unless the law is clear to the contrary.’ ”  Butler v. Huttig Bldg. Products, 2003
VT 48, ¶ 12, 175 Vt. 323, 830 A.2d 44 (citations omitted).
¶ 20.         Our
primary objective in interpreting statutes is to give effect to the intent of
the Legislature.  To determine that intent, we “must examine and consider
fairly, not just isolated sentences or phrases, but the whole and every part of
the statute . . . together with other
statutes standing in pari materia with it, as parts of a unified statutory
system.”  State v. Jarvis, 146 Vt. 636, 637-38,
509 A.2d 1005, 1006 (1986) (quotation omitted).
¶ 21.         The
language in question is clear: the legislature has directed that the AMA Guides
are determinative with respect to “[a]ny determination of the existence and
degree of permanent partial impairment” associated with an injury. 
21 V.S.A. § 648(b) (emphasis added).  PPD benefits are available for
permanent impairments associated with an injury.  Id. § 648(a).  Nowhere does the statute
state that the AMA Guides provide the exclusive mechanism for determining the
existence of, or diagnosis associated with, a compensable injury.  Rather,
the statute declares that the rating of an impairment
is to be conducted pursuant to the AMA Guides.  See Payne v. US
Airways, Inc., 2009 VT 90, ¶ 9, 186 Vt. 458, 987 A.2d 944 (in
discerning legislative intent, “we start with the language of the statute and
read it according to its plain and ordinary meaning”).  
¶ 22.         To
the extent that Chapter 16 of the AMA Guides purports to establish fixed
criteria for diagnosing CRPS, as opposed to a method for rating the
impairment associated with that condition, § 648(b) does not imbue those
criteria with the force of law.  The Guides may be used as evidence to
support expert testimony concerning the presence of CRPS, and a factfinder may
choose to rely upon the criteria listed in Chapter 16 of the Guides in determining
if a claimant has an injury and whether that injury is appropriately labeled
“CRPS.”  But the Guides do not necessarily contain the exclusive
authoritative standard for diagnosing the condition.  In the face of
competing opinions regarding diagnosis, a factfinder must exercise reasoned
judgment in weighing the competing expert opinions.  See Houle v. Ethan
Allen, 2011 VT 62, ¶ 9, 190 Vt. 536, 24 A.3d 586 (listing factors
considered by Commissioner in weighing competing expert opinions).
¶ 23.         The dissent
keys in on the statute’s reference to a “determination of the existence
and degree of impairment,” and argues that the reference to the “existence” of an impairment suggests that § 648(b) therefore
incorporates the AMA Guides’ criteria for diagnosing conditions.  Post,
¶¶ 56-57.  The implication is that no impairment exists—that is, no
“loss, loss of use, or derangement of any body part, organ system, or organ
function” can be found, AMA Guides at 2—unless claimant is diagnosed with CRPS
in conformity with the criteria set forth in Table 16-16 of the AMA
Guides.  This view conflates injury, impairment, and
diagnosis.    “Diagnosis” of CRPS is not the same as “the
existence of an impairment,” and the reference in § 648(b) to the “existence”
of an impairment does not, as implied by the dissent’s analysis, broaden that
provision’s focus on impairment to include diagnosis, injury, or any other
concept; it just reflects an acknowledgment that in some cases an injury may
not give rise to any associated permanent impairment.    
¶ 24.         The
view that § 648(b) identifies the AMA Guides as the basis for rating
impairments, but leaves the determination of the existence of an injury and,
where relevant, the diagnosis associated with that injury to the factfinder to
assess based on all the evidence, is congruent with the Commissioner’s own past
analysis.  The Commissioner previously concluded in the context of
benefits other than permanency that the AMA Guides’ diagnostic criteria for
CRPS are not determinative.  Workers’ Compensation Board: Chartier v.
Cent. Vt. Med. Ctr., No. 22-09WC (June 26, 2009),
http://www.labor.vt.gov/portals/0/WC/ChartierDecision.pdf. 
In that case, the Commissioner considered whether a claimant suffered from
reflex sympathetic dystrophy (RSD) as a result of a work-related injury.
 The claimant’s treating physician diagnosed the claimant based on
criteria outlined in a medical text, and several other treating providers
concurred in the diagnosis; the defendant’s expert concluded that the claimant
did not suffer from RSD on the basis of the criteria outlined in the AMA Guides
at Table 16-16.  The Commissioner rejected the testimony of the
defendant’s expert.  In that case, the Commissioner was not construing 21
V.S.A. § 648(b), the provision concerning permanent impairment benefits at
issue here.  However, the Commissioner’s findings concerning the role of
the AMA Guides are instructive insofar as they reflect the Commissioner’s
understanding of the distinction between diagnosing a condition
and rating the associated impairment:  “The AMA Guides are
statutorily designated as the standard to use for rating the extent of an
injured worker’s permanent impairment.  Treating doctors do not
necessarily refer to the AMA Guides to diagnose patients,
however.”  Chartier, at 5.
¶ 25.         Our interpretation also best jibes with the broader goals of the
workers’ compensation laws.  See Delta Psi Fraternity v. City of
Burlington, 2008 VT 129, ¶ 7, 185 Vt. 129, 969 A.2d 54 (legislative
intent is derived from consideration of “entire enactment, its reason, purpose
and consequences” in addition to particular statutory language).  The
Legislature has made it clear that its goal is not to ensure compliance with
the AMA Guides as an end in itself; rather, the Guides are a tool to promote
the Legislature’s goal of ensuring that individuals who suffer permanent
impairment as a result of work-related injuries receive appropriate PPD
benefits.  Section 648 in its entirety reflects a clear statutory intent
that no bona fide impairment should go uncompensated simply because the AMA
Guides fail to provide a method for assigning a rating to a particular
condition.  Instead, the statute specifically authorizes the Commissioner
to develop methods for rating impairments not covered by the Guides, 21 V.S.A.
§ 648(b), and the Commissioner has adopted a rule to ensure that
impairments not expressly included in the AMA
Guides are rated and lead to compensation, Workers’ Compensation Rules
§ 11.2500.[6] 
Accordingly, pursuant to the statutory scheme, individuals suffering from
impairments not specifically described or listed in the AMA Guides
nonetheless may be entitled to an impairment rating and associated PPD benefits
if supported by sufficient expert testimony.  
¶ 26.         Applied
to the facts of this case, the dissent’s construction of the statute is at odds
with this legislative goal, as well as the remedial nature of the workers’
compensation scheme.  Montgomery, 142 Vt. at 463, 457 A.2d at 646.  Everyone agrees that claimant
developed CRPS as a result of his work injury.  Even Dr. Wieneke affirmed
that diagnosis, although he concluded that the syndrome had resolved by the
time claimant reached a medical end.  But see Workers’ Compensation Board:
H.K. v. Woodridge Nursing Home, No. 01-07WC (Jan. 16, 2007),
http://159.105.83.163/portals/0/WC/U-50905Kennett.pdf (rejecting opinion of
expert who opined that claimant did not meet criteria for RSD diagnosis under
AMA Guides, noting that “RSD is not a static state, . . .
symptoms can ebb and flow,” and finding that claimant was likely not highly
symptomatic at time that those who opined against diagnosis examined
her).  No one has suggested that the failure of claimant’s condition to
satisfy the diagnostic criteria outlined in Table 16-16 of the AMA Guides
defeated his entitlement to medical benefits, temporary disability, or
vocational rehabilitation benefits associated with his injury.  In the
dissent’s view, claimant had a work injury—diagnosed by his providers as
CRPS and compensable for the purposes of temporary disability benefits, medical
benefits, and vocational rehabilitation benefits.  But then, as a matter
of law, claimant did not have CRPS, and therefore by definition was
ineligible for evaluation of any permanent impairment associated with that
condition once he reached a medical end point, regardless of any evidence of
functional limitations associated with the CRPS pursuant to the AMA Guides’
rating system.  That would be an incongruous state of affairs given the
expressed legislative goal of compensating impairments—not diagnoses—resulting
from work injuries. 
IV.
¶ 27.         The
dissent describes the ongoing controversy within the medical community about
the best way to diagnose CRPS and argues that the drafters of Chapter 16 of the
AMA Guides do not believe that a claimant can be appropriately diagnosed with
CRPS unless the claimant’s constellation of subjective and objective findings
meets the diagnostic criteria set forth in Chapter 16.  Post,
¶ 41.[7] 
The question here is not what the drafters of Chapter 16 believe to be the
essential components of a CRPS diagnosis; the question is whether, as a matter of
law, the statute prevents the Commissioner from assigning an impairment rating
under Chapter 16 of the AMA Guides to an individual who has been diagnosed with
CRPS by a competent physician using medically-accepted criteria and on the
basis of objective findings.[8]

¶ 28.         The
diagnosis of CRPS itself is not intrinsic to the actual impairment rating
process for CRPS.  Given a CRPS diagnosis, the AMA Guides provide a
coherent set of criteria for evaluating the impairment associated with that
condition that do not include the diagnosis itself.  The Commissioner
specifically found that after diagnosing claimant’s condition pursuant to
criteria endorsed by a different medical association, Dr. Lefkoe “followed the
procedure mandated by the AMA Guides for determining the appropriate impairment
rating in cases involving the type of CRPS from which claimant presumably
suffers.”  The trial court likewise found that, setting aside its
conclusion that the claimant’s impairment was not subject to a rating pursuant
to Chapter 16 because his condition did not meet that Chapter’s diagnostic
criteria,  Dr. Lefkoe’s ultimate permanency
rating was correctly computed using Chapter 16 of the AMA Guides.  
¶ 29.         Moreover,
Chapter 16 is not the only chapter in the AMA Guides pursuant to which CRPS can
be rated.  Chapter 13, relating to the central and peripheral nervous
system, also offers a methodology for rating impairments associated with
CRPS/RSD in an upper extremity.  See AMA Guides at 343-44.  That
section describes many of the same indicia of CRPS that are listed in Chapter
16.  Id. at 343, 496.  However, in
contrast to Chapter 16, nothing in Chapter 13 suggests that a specific minimum
number of findings is a prerequisite to a CRPS
diagnosis or to a rating for the impairment associated with that
condition.  The Guides themselves thus provide a different framework for
diagnosing CRPS.  
¶ 30.         The
dissent’s approach to rating impairment associated with CRPS is also inconsistent
with the commitment reflected in both the workers’ compensation statute and
the AMA Guides themselves to ensure conditions that are not specifically
listed in the AMA Guides are nonetheless ratable.  The Guides afford
latitude to examiners to exercise discretion in choosing the best rating
methodology for a given condition, AMA Guides at 19, and in selecting a
specific rating within the sometimes wide ranges dictated by the Guides, id.
at 20 passim.  And, significantly, the Guides
suggest that in situations where the Guides do not provide impairment ratings,
“physicians use clinical judgment, comparing measurable impairment resulting
from the unlisted condition to measurable impairment resulting from similar
conditions with similar impairment of function in performing activities of
daily living.”  Id. at 11.  
¶ 31.         In
other words, even if a claimant’s condition does not fit within any ratable impairments listed in the AMA Guides, an evaluator may use a
closely matching rating methodology in the AMA Guides to determine an
impairment rating.  See supra, ¶ 25 & n.7 (statute directs
Commissioner to develop methods for rating impairments not covered by Guides,
and Commissioner has accepted ratings from chapters of Guides designed for
rating non-psychological injuries in awarding PPD benefits for psychological
injuries not otherwise rated in Guides); see also AMA Guides at 11 (recognizing
that “[c]linical judgment, combining both the ‘art’ and ‘science’ of medicine,
constitutes the essence of medical practice”); id. at
18 (acknowledging that impairment evaluation process “requires considerable
medical expertise and judgment”); id. at 19
(expressly authorizing evaluators to deviate from specific guidance of Guides
in assigning impairment ratings if, in their considered clinical judgment,
methodology in Guides does not produce fitting rating in particular
case).  
¶ 32.         Given
that both the statute and the Guides expressly allow evaluators to rate an
impairment using the rating method set forth in a specific section of the
Guides even if an individual’s condition (or diagnosis) is not the condition
(or diagnosis) for which that section is specifically designed, and given
the Guides’ own recognition of the importance of an evaluator’s clinical judgment
in the rating process, it would be odd to say that the Commissioner does not
have the discretion to accept a rating under section 16.5e of the AMA Guides
for an individual with an established loss of function (or impairment) and a
persuasive diagnosis of CRPS based on objective findings and medically-accepted
standards when the rating physician concludes that section 16.5e provides the
most appropriate method for rating the impairment.  
¶ 33.         In Tokico
(USA), Inc. v. Kelly—a case on all fours with this case—the Kentucky
Supreme Court provided persuasive analysis on the issue before us.  281 S.W.3d 771 (Ky. 2009).  In that case, the Kentucky
Supreme Court affirmed an impairment rating for CRPS I even though the
physician who gave the rating concluded that the claimant exhibited only seven
of the eleven diagnostic criteria in the AMA Guides.  Id.
at 773.  The Guides require that “at least eight of the [eleven]
findings must be present concurrently for a diagnosis of CRPS,” but the
physician concluded nonetheless that claimant had “an absolutely classic case”
of CRPS I and that “he had no doubt she suffered from ‘some definite form’ of
the condition.”  Id.  Using his clinical judgment, the
physician concluded that to rate the claimant’s impairment using another method
would be less accurate than rating for CRPS I based on seven rather than eight
objective criteria.  Id. at 774. 
Reviewing the rating, the court cited the AMA Guides’ acknowledgments that some
medical syndromes are poorly understood, and that physicians must use clinical
judgment when assigning impairment ratings.  Id.  The court
concluded:
Diagnosing what
causes impairment and assigning an impairment rating are different
matters.  Diagnostic criteria stated in the Guides clearly have relevance
when judging the credibility of a diagnosis, but [Kentucky’s statute] does not
require a diagnosis to conform to criteria listed in the Guides.  
Id.
at 774-75.  Like the Vermont statute, the Kentucky statute at issue
required that permanent impairment be assessed pursuant to the AMA
Guides.  See Ky. Rev. Stat. § 342.0011(35) (“ ‘Permanent
impairment rating’ means percentage of whole body impairment caused by the
injury or occupational disease as determined by the ‘Guides to the Evaluation
of Permanent Impairment.’ ”).[9] 

¶ 34.         The
dissent argues that the rating process for CRPS in Chapter 16 of the Guides
expressly incorporates the more stringent diagnostic criteria in order to lend
objectivity to the impairment rating.  We agree that in evaluating
impairment the Commissioner must consider whether the alleged CRPS condition is
supported by objective findings, but we note that this is not a case in
which the CRPS diagnosis is unsupported by objective findings.  Drs.
Giering and Lefkoe identified a host of objective findings, incorporated into
the IASP diagnostic criteria upon which they relied, to support their
conclusion.  For example, Dr. Giering explained that the color and
temperature changes in claimant’s affected limb—both factors included in the
AMA Guides as factors supporting a CRPS diagnosis—were signs of vasomotor
changes that are characteristic of a classic presentation of CRPS.  The
roadblock to a finding of permanent impairment in this case was the specific
minimum number of findings to support the CRPS diagnosis pursuant to Table
16-16 of the Guides.  Although parties are free to argue that the Guides’
diagnostic criteria are more objective than those of the IASP, and that the
Guides are therefore a better tool for determining whether a claimant suffers
from CRPS I and is suitable for an impairment rating associated with that
condition, it is not consistent with § 648(b) to treat the Guides’ method
for diagnosing CRPS I as the only legally acceptable method.  
¶ 35.         We
emphasize the limited scope of our holding.  We do not hold as a matter of
law that claimant in this case is entitled to PPD benefits on account of the
aspect of his injury diagnosed as CRPS.  On remand, the factfinder is free
to conclude that claimant’s impairment should not be rated pursuant to section
16.5e of Chapter 16.  To the extent that Dr. Wieneke’s opinion suggests
that claimant has no ratable impairment associated with CRPS, the Commissioner
may even conclude that claimant does not have an impairment
from CRPS at all.  However, by deferring to the AMA Guides with respect to
the methodology for rating an impairment, the Vermont
Legislature has not purported to remove from the Commissioner the discretion to
consider conflicting competent expert opinions concerning the presence of an
impairment.  Houle, 2011 VT 62, ¶¶ 13-15
(deferring to Commissioner’s factfinding concerning conflicting expert
testimony).  
¶ 36.         For
the above reasons, we conclude that the trial court and the Commissioner erred
in concluding that 21 V.S.A. § 648(b) and the AMA Guides precluded them,
as a matter of law, from considering any evidence of claimant’s impairment
associated with CRPS.  We remand to the trial court for reconsideration of
claimant’s permanent impairment rating in light of the above analysis.
Reversed and remanded.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 
¶ 37.         DOOLEY,
J., dissenting.   In decision after
decision, we have held that our main goal in construing statutes is to
implement the intent of the Legislature.  In this case, the majority has
construed a statute to weaken its central purpose to bring objectivity,
consistency and predictability to the workers’ compensation
impairment-determination process and the requirements of this process to the
point where it is difficult to find any remaining point in having the
statute.  The majority reaches this conclusion by exploiting what it perceives
as a loophole in the drafting of the statute.  It is difficult to discern
any reason why the Legislature would create such a loophole, and the majority
gives us none except to say that we should construe the statute to benefit the
claimant.  I cannot join a decision the result of which is so clearly
contrary to the intent of the Legislature, and therefore dissent.
¶ 38.         Our
responsibility to construe the statute arises in an area where there has
been tremendous controversy over what evidence must be shown to establish the
presence of a condition—Complex Regional Pain Syndrome, known by its acronym of
CRPS.  If the statute’s purpose of bringing objectivity and consistency to
the impairment-rating process does not produce that effect for CRPS, where it
is most needed, it is a paper tiger.  Put another way, the majority’s
resolution of this case may be appropriate for the majority of impairment
ratings covered by the American Medical Association Guides to the Evaluation of
Permanent Impairment (AMA Guides), Fifth Edition.  This is because most
impairment ratings are not dependent on a particular diagnosis.  CRPS
represents a critical exception to this standard method of impairment
rating.  For CRPS, the policy of the Guides is that there is no applicable
impairment absent a diagnosis of CRPS pursuant to the Guides.  In other
words, the proper impairment rating under Chapter 16 of the Guides—the Chapter
used in this case—is zero. I would hold, as did the Commissioner and the trial
court, that an impairment rating due to CRPS using Chapter 16 of the AMA Guides
Fifth Edition necessarily requires that CRPS be diagnosed according to the
criteria in that chapter.
¶ 39.         Some
background is necessary to understanding why the drafters of the Guides Fifth
Edition took the approach they did with respect to CRPS.  The underlying
issue is explained in a recent commentary:
 
The basic diagnostic problem of this condition—severe, unrelenting pain out of
proportion to the inciting injury—is significantly complicated by the
subjective nature of the pain and the need for clear objective measures for the
basis of the discomfort.  Added to this mix is the fact that there is no
diagnostic test specific for CRPS.  In a medical setting, these issues
create debate over the accuracy of the diagnosis and appropriate
treatment.  In a compensation context, subjective pain that is out of
proportion to the injury is a recipe for unrelenting controversy.
 
Hodge, Hubbard
& Armstrong, Complex Regional Pain Syndrome—Why the Controversy?,
13 Mich. St. U. J. Med. & L. 1, 3 (2009).[10]  The continuing education program
of the American Academy of Neurology has included a classification of CRPS as a
“mythical concept.”  R. Barth, A
Historical Review of Complex Regional Pain Syndrome in the ‘Guides Library’,
Guides Newsl. (Amer. Med. Assoc., Chicago, Ill.), Nov./Dec.
2009, at 1 (citations omitted).[11]
¶ 40.         The
AMA rated CRPS in two places in the Fifth edition of the Guides,[12] a split designed to be “reflective of
differences in the clinical approach of different specialties to different
conditions and/or organ systems.”  Letter from Michael
Maves, Exec. V.P. of Amer. Med. Assoc., to Anthony
Kirkpatrick, Dep’t of Anesthesiology, U. S. Fla. (Oct. 28, 2004), available at
http://www.rsdfoundation.org/test/AMAreferences.html.  The
diagnosis and impairment rating in this case are governed by Chapter 16 of the
Guides, so I begin my discussion with that chapter, and return to Chapter 13
below.  
¶ 41.         A
finding of CRPS under Chapter 16 “should be conservative and based on objective
findings” because many of the symptoms can have different causes.  AMA
Guides at 496.  Thus, under this chapter a diagnosis must be predicated
“upon a preponderance of objective findings that can be identified during a
standard physical examination and demonstrated by radiological techniques.” 
Id.  It requires that at least eight of eleven possible objective
findings be made.  Id.  These findings must involve objective
evidence of disease and cannot simply be based on symptoms.  Id.
¶
42.        
Immediately following the diagnosis requirement in Chapter 16, the
Guides set out the methodology for determining impairment for CRPS I and CRPS
II.[13] 
There is no suggestion that the impairment determination methodology can be
used separately from the diagnosis.  Indeed, the placement of the
impairment determination instructions right after the diagnosis instructions
suggests the contrary intent.  The continuing guidance from the AMA is
consistent with this interpretation.  The AMA publishes a Guides
Newsletter, which it calls “a complement to” the AMA Guides.  AMA Guides
Newsletter,
https://commerce.ama-assn.org/store/catalog/productDetail.jsp?product_id=prod1240005&sku_id=sku1240013&navAction=push. 
In a 2006 clarification of the various ways that CRPS can be rated, the editors
of the Guides Newsletter stated: “Do NOT consider the diagnosis of CRPS type 1
for impairment rating purposes unless 8 of the 11 criteria have been documented
to be present concurrently.”  Rating Impairment for
CRPS Type 1, Guides Newsl. (Amer. Med. Assoc., Chicago, Ill.), Mar./Apr. 2006, at 10.
¶ 43.         It is
important to emphasize that the AMA approach in Chapter 16 specifically and
intentionally rejected the approach of the International Association for the
Study of Pain (IASP).[14] 
In a series of articles in the AMA Guides Newsletter, Dr. Robert Barth
explained that the AMA Guides have “recommended against the use of the IASP
protocol for CRPS since 1997 (due to predictions, later confirmed, that the
protocol would lead to overdiagnosis).”  R. Barth, A
Historical Review of Complex Regional Pain Syndrome in the ‘Guides Library’,
Guides Newsl. (Amer. Med. Assoc., Chicago, Ill.), Nov./Dec.
2009, at 4.  He added that the AMA Guides Fifth Edition, at issue here,
“continued the call for clinicians to avoid utilization of the IASP’s protocol,
in favor of an extensive differential diagnostic process seeking to eliminate
alternative diagnoses.” Id.; see also R. Barth and T. Bohr, Challenges
in the Diagnostic Conceptualization of CRPS-1 (Formerly Conceptualized as RSD),
Part 1, Guides Newsl. (Amer. Med. Assoc., Chicago, Ill.), Jan./Feb. 2006,
at 5 (“[T]he IASP protocol is inherently flawed because it represents a
departure from epidemiologic guidelines, because it is indistinguishable from
alternative diagnostic possibilities, and because it is self-contradictory.”);
R. Barth and T. Bohr, Challenges in the Diagnostic Conceptualization of
CRPS-1 (Formerly Conceptualized as RSD), Part 2, Guides Newsl. (Amer. Med.
Assoc., Chicago, Ill.), Mar./Apr. 2006, at 2 (“In summary, the logical
ramifications of the fourth criterion from the IASP protocol actually cause
CRPS-1 to be a diagnosis that never can be credibly adopted for any individual case.”). 
The criticism has also come from a study in the journal Pain in 1999,
which found that “the majority of cases that satisfied IASP diagnostic criteria
were actually from samples of people who were known in advance to not have CRPS
I.”  R. Barth, A Historical Review of
Complex Regional Pain Syndrome in the ‘Guides Library’, Guides Newsl.
(Amer. Med. Assoc., Chicago, Ill.), Nov./Dec. 2009, at
3 (citing S. Bruehl, et al., “External Validation of IASP Diagnostic Criteria
for Complex Regional Pain Syndrome and Proposed Research Diagnostic Criteria,”
81 Pain 147-154 (1999)).
¶ 44.         An
even stronger indication of the required relationship between the impairment
ratings for CRPS is that, as referenced above, the Guides offer two ways of
diagnosing CRPS and each has a separate, unique method of calculating
impairment once the diagnosis is made.   The second method is in
Chapter 13.  Chapter 13 (“The Central and Peripheral Nervous System”),
while it contains no checklist of necessary clinical findings for CRPS, gives
examples of what clinical findings and radiographic results may lead to such a
diagnosis.  AMA Guides at 343.  It emphasizes that “diagnosis is key
and is based on clinical criteria.”  Id.  It contains a
separate chart to rate an impairment.  Id.[15]  
¶ 45.         The
presence of a separate method of diagnosis and calculating impairment in
Chapter 13 is a clear demonstration that the diagnoses and impairment ratings
for CRPS are inextricably intertwined.  The drafting is such that the
impairment ratings are usable only with the applicable diagnosis.  
¶ 46.        
Additionally, the Guides make clear that permanent impairment ratings
are to be made only once a patient has reached “maximal medical improvement”
(MMI).  AMA Guides at 19.  This phrase “refers to a date from which
further recovery or deterioration is not anticipated, although over time there
may be some expected change.”  Id.  It is on that date that
the existence or lack of evidence of the objective signs of CRPS must be
evaluated.  See Westmoreland Reg’l Hosp. v. Workers’ Comp. Appeal Bd.,
29 A.3d 120, 129 (Pa. Commw. Ct. 2011)  (noting
that the AMA Guides required an impairment rating of zero for CRPS because
“[c]laimant did not exhibit objective symptoms . . . at
the time of the [impairment rating evaluation]” (emphasis
added)).   The editors of the Guides Newsletter have emphasized the
particular importance of reaching this stage before rating CRPS cases for
permanent impairment as “maximal medical improvement . . . can
be slow.”  Rating Impairment for CRPS Type 1,
Guides Newsl. (Amer. Med. Assoc., Chicago, Ill.), Mar./Apr.
2006, at 10.
¶ 47.        
This need to reach a medical end result leads to a difference over the
record between the majority and this dissent.  The majority describes Dr.
Wieneke as agreeing that claimant had CRPS at the point of his first
evaluation, although “the syndrome had resolved by the time claimant reached a
medical end.”  Ante, ¶ 26.  From
this, the majority argues that there is an inconsistency in this dissent
because I accept that claimant had CRPS for purposes of medical rehabilitation
or temporary disability benefits but would hold that when claimant reached an
end result he “was ineligible for evaluation of any permanent
impairment.”  Id.  There is no inconsistency, and the majority
failed to describe the essential elements of the Dr. Wieneke’s opinions.
¶ 48.         The
statute we are construing applies only to “[p]ermanent partial
disability benefits.”  21 V.S.A. § 648(b) (emphasis added).  The AMA
Guides are for “Evaluation of Permanent Impairment.” (Emphasis
added).  Dr. Wieneke never opined that claimant had a permanent impairment
from CRPS.  Indeed, in his first opinion, he stated that claimant had CRPS
but could return to work in six weeks.  He made it clear that claimant had
not reached a medical end result.  In his second OPINION, he said
that claimant had reached a medical end result and diagnostic points for CRPS
“are no longer present.”  He found that claimant had a work injury and
assigned a whole body impairment of three percent based on restricted shoulder
functionality and upper body pain.  
¶ 49.         It is
perfectly possible that a claimant could have CRPS, but with the passage of
time and medical intervention have no permanent impairment from CRPS.  If
we believe Dr. Wieneke, that is precisely what
occurred in this case.  Under Dr. Wieneke’s conclusion, claimant was
eligible “for evaluation of any permanent impairment,” but not one based on a
diagnosis of CRPS and not one based on a CRPS impairment rating.  How the
Department of Labor treated temporary disability compensation or rehabilitation
or medical benefits is irrelevant to this case because the statute at issue
does not apply to these items.  There is nothing “incongruous” in a
holding that claimant is not entitled to a CRPS impairment rating because he
does not have CRPS as a permanent condition that results in a permanent
impairment.  
¶ 50.         With
this background in mind, I turn to the question before us.  The statute in
issue reads:
 
Any determination of the existence and degree of permanent partial impairment
shall be made only in accordance with the whole person determinations as set
out in the fifth edition of the American Medical Association Guides to the
Evaluation of Permanent Impairment.
 
21
V.S.A. § 648(b).  The majority reads the language as saying that
only the degree of permanent partial impairment must be taken from the Guides;
any other step in the determination can come from anywhere, no matter what is
the basis for the medical diagnosis of CRPS.   As I understand the
majority opinion, it holds that the impairment ratings for CRPS as contained in
§ 16.5(e) can be used with any CRPS diagnosis, whether or not it meets the
standards of the AMA Guides or any other professional standards, or any other
diagnosis where in the clinical judgment of the physician witness the CRPS
impairment standards best fit. See ante, ¶ 22.
¶ 51.         While
I find this interpretation creative to maximize a worker’s recovery, I think it
is inconsistent with the structure of the Guides, the language of the statute,
and, most important, the intent of the Legislature.  Indeed, the statutory
requirement is essentially eliminated.
¶ 52.         The
first point is obvious from my opening discussion of the drafting of the
Guides.  The permanent partial impairment ratings set out in the Guides
for CRPS are wholly dependent on the corresponding diagnosis of CRPS under the
standards in Chapter 13 or those in Chapter 16.  It is not permissible to
calculate an impairment rating under Chapter 16 based on a CRPS diagnosis under
Chapter 13, as the majority would allow.  Even less is it permissible to
import a CRPS diagnosis from outside the Guides to go with a CRPS impairment
rating under either chapter.[16] 
As one court has held recently in similar circumstances, where the worker does
not meet the Guides’ requirements for a diagnosis of CRPS, “the AMA Guides
require a zero impairment rating for that condition.”  Westmoreland
Reg’l Hosp., 29 A.3d at 129; see also id. at
126 (“Dr. Klein could not assign more than a zero percent impairment to [the
CRPS] . . . condition without violating the AMA
Guides”).  
¶ 53.         The
majority gives a number of reasons why the Guides do not require the opposite
result in this case.  First, the majority states: “ ‘[D]iagnosis’
per se is not intrinsic to the identification or measurement of many
impairments in the AMA Guides.”  Ante, ¶ 16 (emphasis
added).  For the reasons I have stated above, CRPS as rated in Chapter 16
is one of the impairments for which diagnosis is intrinsic.  If the
majority accepts the proposition that there are instances where the
impairment rating is dependent on the diagnosis under the Guides, CRPS cases
fit that description exactly.
¶ 54.         Second,
the majority argues that the fact that the Guides provide two different methods
of diagnosing CRPS supports its position.  Ante,
¶ 17.  Apparently, the majority would conclude that the choices
work like a Chinese menu—however CRPS is diagnosed, the claimant’s physician
can chose whichever impairment rating methodology the physician desires, even
if it is not paired with the diagnosis method.  There being no clinical
reason behind the choice, it will be unsurprising that the claimant, supported
by the physician, will choose the impairment rating that will maximize the
whole body rating and thus the amount of compensation.  Because there is
no medical reason for the choice, it is hard to see this as other than playing
games with the system.  That this is allowed, indeed almost certain, under
the majority’s rationale is a strong reason to reject that rationale.
¶ 55.        
As for the language of the statute, the majority has adopted an
interpretation of § 648(b) that is not compatible with its language and
does not show a “compelling indication of error” to overturn the Commissioner’s
interpretation.  The majority essentially reads two phrases out of the
statutory language—“existence and” and “whole person determinations.” 
Even under the majority’s flexible approach, claimant must show a permanent
impairment.  The medical evidence in this case provides only one diagnosis
that supports a permanent impairment of the scope for which claimant seeks
compensation—that is, CRPS.  If the “existence” question is controlled by
the Guides—as the statute says it must be—the answer is that, whatever
claimant’s symptoms, they are not caused by CRPS and do not show a permanent
impairment of the magnitude of a CRPS impairment.  As the Pennsylvania
court concluded in Westmoreland, 29 A.3d at 129, the correct impairment
rating in this case for CRPS under the Guides is zero.
¶ 56.         The
statute provides that “[a]ny determination of the existence and degree”
of impairment shall be made “in accordance with the whole person determinations”
in the Guides.   21 V.S.A. § 648(b). 
As I discussed earlier, the determinations of CRPS in the Guides are based on a
diagnosis under the Guides’ requirements.  Similarly, a determination in
an individual case must follow the Guides’ process, which starts for CRPS with
a diagnosis of CRPS under the Guides’ requirements.  As I stated in
opening this dissent, there are many parts of the Guides in which a conforming
diagnosis is not part of the process of determining an impairment rating. 
That is, of course, the reason that the statute does not specifically refer to
a diagnosis; nor does it refer to other parts of the determination process by
the label attached by the Guides for that step.  Where the Guides do
require a specific diagnosis as part of the process of determining an
impairment rating, the statute requires that determination process to be
followed.  The determination process for CRPS requires a CRPS
diagnosis.  
¶ 57.         Narrowly
parsing the language of § 648(b), the majority arrives at an
interpretation of the statute that allows evasion of its obvious intent. 
The majority interpretation makes the words “existence” and “determination” superfluous
so no case would ever turn out differently if those words were omitted.  In this case, the Guides clearly state that there is no permanent
partial impairment due to CRPS unless the condition is diagnosed under its
requirements.  That is the “determination” required by the Guides,
and in this case, it is a determination of the existence or non-existence of a
permanent partial impairment.  The Commissioner’s construction of the
statute is not only reasonable; it is compelled by the statutory language.
¶ 58.         The
evasion becomes even greater if we accept the majority’s holding (addressed
below) that, where the claimant’s condition does not meet the objective
findings requirements for a CRPS diagnosis, the physician can simply rename the
claimant’s condition to something else—or as lacking an established name—and
proceed to an impairment rating as if claimant has CRPS.  Ante, ¶ 32.  In that situation, the “existence”
of a permanent impairment is not determined under the Guides and the physician
is not making the whole person determination under the Guides.  
¶ 59.         As
support for its construction of the statute, the majority relies upon the
decision of the Kentucky Supreme Court in Tokico (USA), Inc. v. Kelly, 281
S.W.3d 771 (Ky. 2009), a decision that is binding upon us only if we find it
persuasive.  Not surprisingly, I do not find it persuasive.  
The majority reaches its conclusion in this case based on thirty-six paragraphs
of analysis.  The court in Tokico reaches its result based on five
sentences of analysis in one paragraph.  Its conclusion is actually one
sentence: “Diagnosing what causes impairment and assigning an impairment rating
are different matters.”  Id. at 774. 
This simplistic statement assumes that the impairment rating is not dependent
on the diagnosis as part of the impairment-rating-determination process. 
The assumption is wrong for CRPS.  
¶ 60.         I
also note that the statute in Tokico is more narrowly drawn than the
Vermont statute.  It contains neither the “existence” or “determination”
language that is central to the proper interpretation of § 648(b).  For
this reason, the superior court found Tokico[17] unhelpful “as the underlying statute is
dissimilar.”   I agree with the superior court’s assessment.
¶ 61.         The
most significant of the majority’s reasons for its interpretation, and in my
view the most concerning, comes under the general heading of discretion. 
This is based on the Guides’ “latitude to examiners to exercise discretion in
choosing the best rating methodology for a given condition” in selecting a
specific rating, and to use judgment in dealing with unrated conditions.  Ante, ¶ 30.  In the majority’s view, this
discretion means that if a physician cannot make a diagnosis of CRPS because
the required number of objective symptoms is not present, the physician can
consider the condition unrated and use the CRPS impairment rating anyway. 
Ante, ¶ 32.  I consider this to be an
evasion of the requirements of the statute that makes the statutory requirement
meaningless.  
¶ 62.         In
many instances, the ratings leave a great deal of room for clinical judgment in
reaching ratings.  When they do not give such discretion, however, doctors
are not allowed to use their unrestricted judgment to abandon the specific
direction of the Guides.  Discretion under the Guides does not include
rejection of specific, explicit requirements.
¶ 63.         This
is the holding of In re Rainville, 732 A.2d 406 (N.H. 1999).  The
New Hampshire statute requires that certain permanent partial impairment
ratings be made “in accordance with the percent of the whole person specified
for such bodily losses in the most recent edition of ‘Guides to the Evaluation
of Permanent Impairment’ published by the American Medical Association.”  Id. at 411.  In Rainville, the
petitioner’s doctor diagnosed the petitioner with “myofascial pain,” resulting
in twenty percent loss of the function of each shoulder, and neck pain. 
The doctor used the Guides to calculate the whole person impairment of eighteen
percent.  The New Hampshire Compensation Appeals Board rejected the
medical opinion under the statute because the Guides do not recognize
myofascial pain.  The Supreme Court reversed, holding:  “[I]n view of
the AMA’s own instructions and our liberal construction of [the
statute] . . . , we hold that if a physician, exercising
competent professional skill and judgment, finds that the recommended procedures
in the AMA Guides are inapplicable to estimate impairment, the physician may
use other methods not otherwise prohibited by the AMA Guides.”  Id. at 413.  The court went on to add: “We
caution that our decision does not permit physicians or claimants to deviate
from procedures simply to achieve a more desirable result.  To satisfy the
statutory requirements . . . a
deviation must be justified by competent medical evidence and be consistent
with specific dictates and general purpose of the AMA Guides.”  Id. 
It also added: “Whether and to what extent an alternative method is proper,
credible or permissible under the AMA Guides are questions of fact to be
decided by the board.”  Id.
¶ 64.         Here,
the majority is trying to use the discretion in the Guides exactly in the way that
Rainville rejects. The “specific dictates” of the Guides establish the
permissible methodologies for determining an impairment rating for CRPS; they
do not leave room for a physician to use a different one.  Where a
condition is unrated, the Guides allow discretion in applying ratings by
analogy.  Where a condition is rated, and the Guides clearly and
specifically state what evidence a physician must find to use that rating, the
physician cannot apply the rating without that evidence.
¶ 65.         There
is another important part of the Rainville opinion—the court’s specific
holding that whether a deviation from the Guides is appropriate is a
determination of fact.  In this case, both the Commissioner and the
superior court found that they were required by statute to use the diagnosis
requirements for CRPS in Chapter 16, which led them to rule against
claimant.  It is important to observe, however, that claimant never argued
below or in this Court for the appropriateness of a deviation from the Guides
in the style of Rainville—rather, he makes a purely legal argument that
a diagnosis under the Guides is not necessary.  Thus, neither the
Commissioner nor the superior court was called upon to do specific fact-finding
required by Rainville.
¶ 66.         There
is a broader point here.  Claimant never argued that a physician can use
the CRPS rating section of the Guides “even if an individual’s condition (or
diagnosis) is not the condition (or diagnosis) for which that section is
specifically designed.”  Ante, ¶ 32 (emphasis
omitted).  The broad dicta of the majority’s decision, dicta that
will have more far-reaching effect than the specific holding with respect to
CRPS or the construction of § 648(b), has been reached with no consideration by
the Commissioner, who has primary jurisdiction over workers’ compensation
cases, nor by the superior court, and with no briefing or argument in this
Court, under the guise that the majority is simply explaining its reasons for
its statutory construction decision.  It is the equivalent of repealing §
648(b).  It is inappropriate to render this kind of decision in this way
in this case.
¶ 67.         Finally,
as I stated in the opening paragraph, the purpose of § 648(b) is to bring
objectivity, consistency and predictability to the impairment determination
process.  See, e.g., Redd v. Kansas Truck Ctr., 239 P.3d 66, 76
(Kan. 2010); Harvey v. H.C. Price Co., 957 A.2d 960, 965 (Me. 2008); see
also 4 A. Larson & L. Larson, Workers’ Compensation Law § 80.07[2]
(2011); AMA Guides at 4.  The majority’s holding goes exactly in the
opposite direction, introducing subjective decision-making into the diagnosis
that is determinative of the Guides’ impairment rating.  It eliminates
objectivity and predictability in the impairment determination process. 
In view of the track record of subjective CRPS evaluations, the determination
involved here is the last that should deviate from the Guides.  See Hodge,
Hubbard & Armstrong, supra, at 20 (“It is common knowledge that in
the battle of experts, both sides are capable of securing witnesses who will
testify about whether the employee does or does not have CRPS.”).
¶ 68.         I
return to the central policy that our primary objective in interpreting
statutes is to implement the intent of the Legislature.  See In re
Carroll, 2007 VT 19, ¶ 9, 181 Vt. 383, 925 A.2d 990. 
The majority has found an ambiguity in the legislative drafting that it can
exploit, but it has not found a reason why the Legislature would ever intend
its construction of the statute, which so clearly undermines its intent. 
Indeed, I urge the Legislature to take a close look at § 648(b) in light
of this decision.  It no longer provides meaningful regulation of the
impairment rating system.
¶ 69.         I
dissent.  I would affirm the well-reasoned decisions of the Commissioner
and the superior court.  
¶ 70.         I am
authorized to state that Judge Eaton joins this dissent.

 


 


 


 


 


 


 


 


 


 


 


Associate Justice

 
 





[1]  The Commissioner noted that the standards
for diagnosing CRPS pursuant to the more recent AMA Guides, 6th edition,
are more similar to the IASP-endorsed approach although that edition of the
Guides does not apply in this case.  See infra, note 2. 


[2]  Claimant argued below that the court
should apply the Sixth Edition of the AMA Guides because the version of 21
V.S.A. § 648(b) in effect at the time of claimant’s injury required use of
the “most recent edition” of the AMA Guides.  See 1993, No. 225 (Adj. Sess),
§ 7 (effective April 1, 1995); see generally Montgomery v. Brinver,
142 Vt. 461, 463, 457 A.2d 644, 645 (1983) (right to compensation for injury is
governed by law in effect at time of injury).  The AMA published the Sixth
Edition of the Guides in 2008, and the current version of § 648(b), which
specifically identifies the AMA Guides, Fifth Edition, as the applicable guide
for rating permanent impairment, took effect on July 1, 2008.  2007, No. 208 (Adj. Sess.), § 6.  The superior
court concluded that under either version of the statute, the AMA Guides, Fifth
Edition, governs the rating of claimant’s permanent impairment resulting from
his 2006 injury.  On appeal, claimant does not challenge this aspect of
the trial court’s decision, and does not contest the applicability of the Fifth
Edition.  Accordingly, citations in this opinion to the AMA Guides refer
to the Fifth Edition.  


[3]  For convenience, we quote from the
current version of § 648(b), rather than the one in effect at the time of
claimant’s injury; the changes to that subsection effected by the 2008
amendment are immaterial to the statutory analysis. 


[4]  In addition to providing metrics for
quantifying different kinds of impairments, the AMA Guides provide a host of
other information such as guidance about conducting examinations and writing
reports, id. at 21; information about symptoms
and their potential etiology, see, e.g., id. at
89 (describing types of coughs and potential underlying conditions); background
on evolving thinking concerning certain conditions, see, e.g., id. at 495 (describing evolving consensus concerning role of
sympathetic nervous system and CRPS); and forms that examiners may, but are not
required to use, in conducting their evaluations, see, e.g., id. at 515.
 


[5]  Dr. Lefkoe and Dr. Wieneke both tied
their analyses to Chapter 16; it is not clear from the record why they concluded
that this chapter, as opposed to Chapter 13, was better suited to evaluating
claimant’s injury.  See AMA Guides at 19 (where impairment can be rated
pursuant to more than one section of AMA Guides, examiner should use chapter
relating to organ system where problems originate or where dysfunction is
greatest for evaluating impairment).  


[6]  Consistent with that commitment, and
given the absence of a methodology in the AMA Guides for quantifying impairment
associated with psychological conditions, the Commissioner accepts impairment
ratings based on the State of Colorado’s system for rating psychological
impairments, as well as ratings developed using tools from chapters of the AMA
Guides governing non-psychological injuries.  See, e.g., Workers’
Compensation Board: Simmons v. Landmark Coll., No. 35-10WC (Nov. 15,
2010), http://www.labor.vt.gov/portals/0/WC/BarrettSi mmonsDecision.pdf
(accepting impairment rating predicated on Colorado’s rating system for anxiety
and depression stemming from work injury); Workers’ Compensation Board: Sargent
v. Town of Randolph, No. 37-02WC (Aug. 22, 2002),
http://labor.vermont.gov/Default.aspx?tabid =909 (awarding permanent partial
disability benefits on basis of anxiety and depression arising from
work-related injury where impairment was based on consideration of Colorado
guidelines and AMA Guidelines relating to central and peripheral nervous system
injuries).


[7]  In so arguing, the dissent implies
that the American Academy of Neurology classifies CRPS as a “mythical concept,”
a suggestion that is misleading.  Like other medical associations
representing fields of practice implicated by CRPS, the American Academy of
Neurology recognizes the condition and describes it in a manner that is
consistent with the others.  See American Academy of
Neurology, Complex Regional Pain Syndrome (2013),
http://patients.aan.com/disorders/index.cfm?event=view&disorder_id= 894. 
See also National Institutes of Health, NINDS Complex Regional Pain Syndrome
Information Page (Sept. 19, 2012),
http://www.ninds.nih.gov/disorders/reflex_sympathetic_dystrophy/reflex_sympathetic_dy
strophy.htm (describing characteristics and treatment of CRPS); American
Academy of Orthopaedic Surgeons, Complex Regional Pain Syndrome (Reflex
Sympathetic Dystrophy) (June 2010),
http://orthoinfo.aaos.org/topic.cfm?topic=a00021 (“It is also important that
these patients not be told that the pain is ‘in their heads.’  CRPS is a
physiological condition.”).  These professional associations all describe
the same objective features of CRPS, although they do not embrace a single,
uniform prescription for diagnosing the condition (that is—how many of these
objectively measurable characteristics must be present, and which ones are
essential)  The question before us is not which entity got it right, but
rather whether in deferring to the AMA Guides with respect to the rating
of an impairment, the Vermont Legislature also designated the AMA Guides as the
sole authority to guide the diagnosis of the underlying condition, or whether
the Legislature left it to the factfinder to decide that question based on the
evidence presented.   
  


[8]  Our holding does not leave the
factfinder free to conclude that an individual has CRPS based solely on
subjective complaints, unmoored to objective observations and
medically-accepted criteria.  See post, ¶ 39 & n.11,
¶ 67.  The factfinder’s conclusion must be supported by substantial
evidence, and medically-accepted methodologies for diagnosing CRPS include
objective, observable criteria.  


[9]  In contrast to the Tokico
decision, the case of Westmoreland Regional Hospital v. Workers’
Compensation Appeal Bd., 29 A.3d 120, 129 (Pa. Commw. Ct. 2011), cited in
the dissent, does not address the issue before us.  Post,
¶¶ 46, 52, 55.  In Westmoreland, the court faced a
situation in which neither the independent evaluator nor the claimant’s own
doctor documented any objective findings to support an impairment rating
for CRPS.  The court concluded that the AMA Guides did not authorize an
impairment rating in the absence of any objective findings at the time of the
evaluation.  Id.  The focus of the divided court’s analysis
was the significance of the presence or absence of objective findings on the
date of the evaluation by the agency-appointed evaluator in light of the
waxing and waning character of the claimant’s symptoms.  The dissent
attempts to analogize this case to Westmoreland by asserting that Dr.
Wieneke found no objective evidence of CRPS in his second evaluation.  Post, ¶¶ 55.  In so arguing, the dissent
engages in appellate factfinding, essentially rejecting the evaluations of Drs.
Giering and Lefkoe in order to support its conclusion.  In contrast to the
statutory structure in Pennsylvania, the Vermont statutory scheme does not
establish the date of one evaluation as dispositive as against another, provided
that both follow the point of maximal medical improvement.  The factfinder
is free to credit the findings of either examiner if supported by sufficient
evidence.


[10]  For an impression of the medical
controversy see the interchange between the  Chairman
of the Scientific Advisory Committee of the International Foundation for
RSD/CRPS and the Executive Vice-President of the American Medical
Association.  Int’l Research Found. for RSD/CRPS
(Nov. 30, 2009), http://www.rsdfoundation.org/test/AMAreferences.html.
 


[11]  I have included this background, not
to take sides in the controversy over how to diagnose CRPS, but to point out
why the AMA took the position it did in the Guides and why the separation of
the diagnosis from the impairment rating totally undermines its policy. 
The majority asserts that it would allow a diagnosis of CRPS “by a competent
physician using medically-accepted criteria and on the basis of objective findings.” 
Ante, ¶ 27.  I see nothing in its
rationale that would impose any of these limits, and the broad statements are
not supported by any citation to statute or decision.  Under the
majority’s rationale, a diagnosis of CRPS, based solely on subjective pain complaints
and without any “objective findings” or “objective, observable criteria,” would
be admissible, and if believed, would entitle claimant to an impairment rating
for CRPS under the Guides.
 


[12]  There has been a good deal of
confusion about whether CRPS could also be rated under Chapter 18 (“Pain”), an
idea that was refuted by an AMA-published article in 2006.  R. Barth, Complex
Regional Pain Syndrome (CRPS): Unratable Through the Pain Chapter, Guides
Newsl. (Amer. Med. Assoc., Chicago, Ill.), Nov./Dec.
2006.  That same article went so far as to recommend rating CRPS under
Chapter 14 (“Mental and Behavioral Disorders”), because “psychiatric factors
could be used to predict the development of CRPS presentations with 91%
accuracy,” id. at 6 (citation omitted), and
because of research revealing that “the majority of CRPS patients met criteria
for a personality disorder.”  Id. (citation omitted).
 


[13]  As the majority states, this case
involves CRPS I and not CRPS II.
 


[14]  I include this background because the
majority relies upon a diagnosis under the IASP standards as fully complying
with the Guides.  Ante, ¶ 34.


[15]  In the interchange noted in note 10, supra,
the Vice-President of the AMA wrote, “The neurology approach [of Chapter 13],
which enables the physician to rely on their own judgment, enables evaluators
to incorporate the latest in evidence based medicine.”  Letter
from Michael Maves, Exec. V.P. of Amer. Med. Assoc.,
to Anthony Kirkpatrick, Dep’t of Anesthesiology, U. S. Fla. (Oct. 28, 2004),
available at http://www.rsdfoundation.org/test/AMAreferences.html.
 


[16]  The claimant chose the impairment
rating in Chapter 16, rather than that in Chapter 13, possibly for the reason
that the Chapter 16 methodology produces a higher impairment percentage.  


[17]  The superior court had only the
Kentucky Court of Appeals decision, which reached the same result based on the
same reasoning.



