VIRGINIA by wuyunyi


									VIRGINIA:                                                                                            06/05/2003

                                                                                        Opinion by the
v.               VWC File No. 156-81-61


Lawrence Neal Burnett
P. O. Box 762
Jessup, MD 20794
Claimant Pro Se1
(Copy sent Certified Mail)

Arthur T. Aylward, Esquire
Midkiff, Muncie & Ross. P.C.
9030 Stony Point Parkway
Suite 160
Richmond, Virginia 23235
For the Defendant

     REVIEW on the record by Commissioner Tarr, Commissioner Diamond, and Chief Deputy
Commissioner Link at Richmond, Virginia.

        This case is before the Commission at the request of the claimant for Review of the

Deputy Commissioner‟s opinion finding that the claimant failed to prove he was permanently

and totally disabled as a result of his industrial accident and that the claimant was not entitled to

reimbursement for his shuttle fees. We AFFIRM.

        The claimant, age 44, sustained a compensable injury by accident—a hernia—on June 5,

1991, while earning an average weekly wage of $825.38. The claimant subsequently received

  During the hearing, the claimant was represented by James R. Boykins, an attorney who is not admitted to practice
law in the Commonwealth of Virginia. Mr. Boykins affiliated with local counsel, William Harrington, at the
hearing. A licensed Virginia attorney did not, however, sign the Written Statement prepared and filed by Mr.
Boykins. Under the circumstances, we will not consider it on Review. See McRea v. Int‟l Sewer Service, Inc., 75
O.W.C. 71 (1996).
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500 weeks of temporary total disability compensation.           He last received temporary total

disability benefits on March 27, 2002.

       On March 13, 2002, the claimant filed a claim for permanent total disability benefits, and

on April 9, 2002, he filed an application seeking reimbursement for certain travel expenses.

       Dr. Stephen Hersh testified that he is a physician board certified in psychiatry and

neurology. He described his specialty as working with people who suffer from chronic illnesses.

He acknowledged that he is not an orthopedist or physiatrist.

       Dr. Hersh testified that the claimant has been his patient since January 31, 1995, and that

the claimant was seen by one of his associates in 1994. He also indicated that he has seen the

claimant more than two hundred and thirty times.

       Dr. Hersh explained that reflex sympathetic dystrophy (“RSD”), now referred to as

chronic regional pain syndrome, is a “complex neurolophysiological condition which involves

peripheral tissues and the spinal cord and the brain.” He explained further that RSD can spread

to any part of a patient‟s body, including his lower extremities. He acknowledged that RSD is

not always caused by trauma.

       Dr. Hersh testified that he believed the claimant developed RSD as a result of his

workplace injury and the inflammatory process following his injury and before his surgery. He

also indicated that the claimant‟s surgery may have contributed to his development of RSD. Dr.

Hersh testified that he based his opinion regarding the claimant‟s RSD and its cause on his

preliminary examination of the claimant, his review of the medical documentation brought by the

claimant to his first appointment, and his observations of the claimant‟s condition throughout his

course of treating the claimant. He acknowledged during cross-examination, however, that he

did not actually conduct a physical examination of the claimant during most of their

                                                                               VWC File No. 156-81-61

appointments and that he based his diagnosis of RSD, in part, on a diagram on which the

claimant identified the areas of his body where he was experiencing pain. Dr. Hersh also

explained that he would sometimes observe spasms in the claimant‟s leg when the claimant came

to his office wearing shorts to receive injections as part of his treatment.

       Dr. Hersh opined that the claimant‟s RSD caused him intermittent and severe pain on a

daily basis, produced muscle spasms in his left leg sometimes spreading to his left arm and right

leg, produced episodes of incontinence, and severe pain after ejaculation. Dr. Hersh testified

further that he believes the claimant‟s RSD to be a permanent condition. In addition, Dr. Hersh

opined that the claimant is disabled to a degree that he is unable to work.

       Dr. Hersh acknowledged that he has not undergone any special training with respect to

the use of the AMA guidelines to evaluate a person‟s disability. Nevertheless, he also indicated

that he used “a book,” which he thought was “the AMA book,” to calculate the claimant‟s

disability ratings. Dr. Hersh later testified that he did not really remember precisely what he

used to rate the claimant‟s disability.

       Since the claimant became his patient, Dr. Hersh testified that he has referred the

claimant to an orthopedist for the administration of nerve blocks. He also indicated that he has

prescribed pain medication, anti-seizure medication, medication for muscle spasms, anti-

depressant medication, anti-psychotic medication, and anti-inflammatory medication for the

claimant. He explained that anti-psychotic medication is sometimes used to treat persons with

chronic pain conditions.

       Dr. Hersh testified that he reviewed portions of a videotaped surveillance of the claimant,

and indicated that persons with RSD are often capable of engaging in the types of activities that

the claimant was shown performing on the videotape. He also explained that most people with

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RSD can function with a great deal of pain but that their physical and mental capabilities

fluctuate. Dr. Hersh maintained his opinion that the claimant is incapable of working despite

what was reflected on the videotape.

       Dr. Hersh described the activities that he believed the claimant was capable of

performing. He stated that the claimant is capable of caring for children if there is someone else

at home who can serve as his “back-up,” that the claimant can perform some work around the

house, that he can shop with others depending upon the level of his pain and spasms, and that he

is capable of participating in a voluntary ministry program at the hospital “depending upon how

he‟s doing from one day to the other.” He also explained that the claimant‟s RSD caused him to

walk with a limp or to use a cane on some occasions whereas on other occasions he is capable of

walking normally. He described the claimant‟s physical capabilities as being unpredictable.

       Dr. Hersh testified that there have been times during his course of treating the claimant

that the claimant was suffering from severe spasms making it dangerous for the claimant to

drive. Under the circumstances, he recommended that the claimant find someone else to drive

him to and from his medical appointments.

       Dr. Hersh acknowledged during cross-examination that the claimant is capable of using

both of his arms, that he can walk, and that he can use both of his legs to operate the gas pedal

and brake while driving. He also acknowledged that he has not prohibited the claimant from

driving with his children in his car.

       The claimant testified that he is a high school graduate and that he worked for the

employer for thirteen to fourteen years as a high voltage substation electrician before his injury.

The claimant explained that he heard a “pop” on June 5, 1991, as he was moving a high voltage

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pump and that he thereafter experienced numbness in his stomach that subsequently spread to his


       The claimant explained that he eventually underwent surgery because of the hernia that

he developed in his workplace accident. He indicated that the hernia was on his left side. The

claimant also testified that he continued to experience pain after his surgery. He testified further

that he started to experience pain in his lower extremities on the day of his accident and that this

pain has continued to the present.

       The claimant testified that one the doctors whom he saw after his surgery, Dr. Hersh,

eventually advised him that he would not be able to return to work. He also testified that Dr.

Hersh gave him a prescription slip recommending that he not drive to his medical appointments.

He indicated that he eventually used the Charles Smith Shuttle, owned by his cousin Charles

Smith, for travel to his medical appointments. According to the claimant, the Charles Smith

Shuttle was 50% cheaper than comparable travel services. The claimant testified that he paid his

cousin by credit card and cash for transportation to and from his physical therapy sessions and

appointments with Dr. Hersh. He explained that he did not obtain receipts from his cousin for

the travel services provided in 1998 through 2000 until December 21, 2000.

       The claimant indicated that he is sometimes capable of doing such things as walking

around the block, volunteering at the hospital, and sweeping his sidewalk, depending upon

“what‟s going on with me physically and the pain level.”

       The claimant acknowledged that he received treatment from a psychiatrist, Dr. Romero,

for depression and that he missed a great deal of time from work because of his depression

before his workplace accident.

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       Robert Smith testified that he formerly operated a shuttle service transporting disabled

persons. He indicated that he gave the claimant a receipt every time he transported the claimant.

He also confirmed that the claimant paid him with cash or with a credit card. Mr. Smith testified

further that he charged the claimant from fifty to seventy-five dollars per trip and that in

December of 2000, he prepared a listing of receipts showing $55.00 as the average amount

charged to the claimant per trip. According to Mr. Smith, he has documentation reflecting the

various times and distances that he transported the claimant; however, he did not bring his

documentation with him to the hearing.

       Daniel E. Blake, a private investigator, testified that he videotaped the claimant on

August 14, 2001. He indicated that the claimant appeared “normal, moving at a normal gait and

cadence” while he was videotaping the claimant but that the claimant was acting differently

during the course of the hearing—appearing more stiff and walking tentatively.          He also

explained that he saw the claimant going down stairs, carrying items, and opening and closing

garage doors when he videotaped the claimant.

       Videotapes taken of the claimant on August 1-3, 2001, August 14, 2001, and January 28

though January 30, 2002, were also introduced as evidence. These tapes show the claimant

engaging in activities such as driving his daughter to school, performing yard work, stretching,

speaking to a woman while moving his arms, pointing, sweeping, cleaning, and walking up and

down stairs without difficulty. At another point of the videotaped surveillance, however, the

claimant is shown walking with a limp and using a cane.

       The employer also submitted the affidavit of Millicent Perry, an adjuster for PMA

Insurance Group, wherein Ms. Perry indicated that the claimant had contacted her in November

of 2000 requesting reimbursement for his shuttle expenses and reporting that he had been unable

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to drive to his medical appointments.2 Ms. Perry represented that she received a disability slip

from Dr. Hersh after she advised the claimant that she had no medical records to support his

request. She also indicated that the claimant had requested and received mileage reimbursement

associated with the use of his personal vehicle to attend medical appointments during the same

period of time in which he claimed to have incurred shuttle fees. Finally, Ms. Perry stated that if

the claimant had requested transportation assistance before asking for reimbursement of his

shuttle expenses, it would have been provided for him at no charge.

        The claimant introduced eight receipts pertaining to the transportation services provided

by Charles Smith. Although the receipts supposedly related to services provided from 1998

through 2000, they are numbered consecutively and appear to have all been prepared at the same

time. Together with the receipts, the claimant also introduced a letter from Charles Smith dated

December 21, 2000, wherein Mr. Smith indicated that he had transported the claimant and that

his fees varied from $55.00 to $75.00, depending upon the length of each trip.

        The eight receipts are for charges totaling $10,120 associated with transportation services

supposedly provided to the claimant on a total of 182 occasions from 1998 through 2000. The

receipts reflect that the claimant was charged $55.00 for each of his trips.

        The Deputy Commissioner also noted in her opinion that she had observed the claimant‟s

demeanor during the hearing and that the claimant exhibited no discomfort while sitting next to

his attorney during Dr. Hersh‟s one-hour testimony but that the claimant grimaced and shifted in

his chair when it was his turn to testify.

 Ms. Perry‟s affidavit was actually submitted as an exhibit to the employer‟s position statement filed previously in
connection with an earlier application that was subsequently withdrawn. The parties agreed at the beginning of the
hearing on January 14, 2003, that the previously filed position statements would be considered as evidence in
connection with the claimant‟s new application for travel expenses.

                                                                        VWC File No. 156-81-61

       The medical records reflect that the claimant underwent a left inguinal hernia repair,

performed by Dr. Thomas P. Wright, on June 12, 1992. Thereafter, Dr. William Seid, who was

in practice with Dr. Wright, referred the claimant to Dr. William J. Purkert for consideration of

possible additional surgery to re-explore the claimant‟s “left groin with clipping of the

ilioinguinal nerve” due to the claimant‟s continued pain in his left groin. On April 23, 1993, Dr.

Purkert reported that he found no evidence of a new herniation or new hernia and did not

recommend additional surgery. He recommended that the claimant obtain psychological care to

assist him in behavior modification and pain management.

       Dr. Robert Umlauf, a clinical psychologist, examined the claimant on April 27, 1993, at

which time the claimant complained of continuous pain in his left inner thigh and testicle

radiating into the left side of his abdomen. Dr. Umlauf diagnosed the claimant as suffering from

an “adjustment disorder with mixed emotional features (depressed mood, anger, etc.).” Dr.

Umlauf also believed that the claimant may suffer from “idiopathic or neuropathic pain

syndrome secondary to surgical scarring and possible nerve entrapment.” He recommended that

the claimant enroll in an outpatient treatment program with Dr. Stephen Hersh at the Medical

Illness Counseling Center.

       The record reflects that the claimant did not immediately see Dr. Hersh. Instead, the

claimant was referred to Dr. Thomas M. Fogarty at the Pain Management Center in Fair Oaks

Hospital. The claimant was admitted to the Fair Oaks Chronic Pain Unit from June 13 to June

14, 1993, at which time the claimant participated in physical therapy and was given trigger point

injections. On September 9, 1993, Dr. Fogarty reported that the claimant “did relatively well

initially following the hospitalization” but that he subsequently developed severe pain.

Dr. Fogarty noted that the claimant had a “history of narcotic dependence and depression

                                                                          VWC File No. 156-81-61

secondary to pain” and that he had experienced increased pain with physical therapy. Dr.

Fogarty modified the claimant‟s medications and recommended that his physiatrist see him. He

further noted that from his “standpoint” he believed the claimant had reached maximum medical


       The record also reflects that Dr. Hersh referred the claimant to physical therapy in April

1994. On August 3, 1994, Dr. Hersh examined the claimant and reported that he was suffering

from chronic pain extending into his left thigh, left testicle and up into the claimant‟s lower

abdominal wall. Dr. Hersh also reported that the claimant‟s pain had recently spread to his back

and neck and that the claimant had experienced severe headaches. Dr. Hersh opined that the

claimant was suffering from RSD caused by damage to the claimant‟s inguinal nerve. He

referred the claimant to Dr. Lorenz Ng, Medical Director of the Chronic Pain Program at the

Center for Back Injury Prevention & Rehabilitation and recommended a sympathetic block and

continued physical therapy. He also listed the claimant‟s prognosis as “guarded.”

       On January 30, 1995, the claimant underwent an MRI of his pelvis. The MRI showed no

evidence of a recurrent hernia, or enhancement of the incision site. The interpreting radiologist,

Dr. Dr. Christine Chacomas, also reported that the MRI showed “no evidence for reflex

sympathetic dystrophy in the region of the pelvis.” In addition, the claimant underwent an MRI

of his lumbar spine reflecting a mild disc protrusion at L1-2 and L4-5.

       On March 10, 1995, Dr. Hersh gave the following prognosis with respect to the

claimant‟s ability to work:

       Based upon our experience with him as a patient, his history, special studies,
       special consultations, and his current functioning I consider him to have total and
       permanent disability. Over time, because he is a bright person, he may be able to
       be further educated and re-trained to a form of work that is both relatively

                                                                         VWC File No. 156-81-61

       sedentary and does not require a traditional “9 to 5” work day. He will never be
       able to return to his previous occupation as a high voltage electrician.

Dr. Hersh also indicated that the claimant continued to need multidisciplinary treatment

including medication, physical therapy, psychotherapy, and participation with a chronic pain

support group.

       On May 12, 1995, Dr. Hersh wrote a letter explaining the basis for his conclusion that the

claimant was permanently and totally disabled:

       Although [the claimant] possesses both arms and both legs, the disruption of
       function from spasms, weakness and pain are so severe that he for all practical
       purposes (self care, work, and recreation) at this time is without consistent,
       reliable use of his left leg, left arm and occasionally right leg and arm. This all
       arises form the severity of his reflex sympathetic dystrophy (RSD) syndrome. He
       has episodes of functioning for 1-4 hours (maximum) at a time, 3-4 days out of
       every week. Otherwise he is in bed or moving from bed to chair to bathroom and

       After examining the claimant on July 21, 1995, Dr. Ng, wrote a letter to Dr. Hersh dated

July 28, 1995, summarizing his impressions regarding the claimant‟s condition as follows:

       [The claimant] presents a rather complicated picture. Neurologically, I do not
       find many deficits. He complains of tingling to touch along the scar site and in
       the distribution of the left groin. However, on testing with cold spray, he reported
       no sensation to cold nor did he report any significant change in his pain level with
       it. By history, he also reported some rather paradoxical responses: he stated that
       when he underwent a phentolamine test in 1994, the infusion of the medication
       “made the pain worse.” This is not consistent with a sympathetically-mediated
       pain syndrome. In addition, he states that when he was in the MRI machine
       recently, the pain got worse; I am hard put to explain this.

       I have difficulty also explaining the presence of the tremor and mild cogwheeling
       of the right upper extremity. I do not believe this is related to the work-related
       injury, however.

       He does not show any evidence of dystrophic changes in the inguinal region or
       hypogastrium. The skin is of normal texture, hair growth is fairly symmetrical,
       and there is no temperature difference, discolouration, or difference in pattern of
       sweat. There is no evidence of any dystrophic or atrophic changes.

                                                                        VWC File No. 156-81-61

       I believe that his findings and symptoms are most consistent with a neuropathic
       pain syndrome involving initially the ilioinguinal nerve that developed following
       his acute lifting injury at work on 5 June 1991. This initial ilioinguinal pain
       syndrome appears to have spread somewhat over time to involve the
       genitofemoral as well as the iliohypogastric distribution. I have difficulty coming
       up with a parsimonious explanation for his rather dispersed and yet discrete
       symptoms throughout his entire body.

       Although Dr. Ng did not recommend additional medical treatment for the claimant, he

believed a three-stage bone scan may be helpful “to assist in determining if there is any abnormal

involvement of the bones which is sometimes seen in the reflex sympathetic dystrophy

syndrome.”     Finally, Dr. Ng opined that the claimant had reached maximum medical

improvement from his workplace injury and, using the AMA guidelines for the claimant‟s “pain,

restricted trunk and hip range of motion, and mild neuropathic findings,” assessed the claimant‟s

impairment as “about 15% for his whole person,” not including the claimant‟s psychiatric


       Dr. Hersh continued to monitor the claimant‟s condition throughout 1995 and in August

of 1995 hospitalized the claimant for treatment of the claimant‟s chronic depression, an

obsessive/compulsive disorder and RSD. While the claimant was in the hospital, an MRI of the

claimant‟s cervical spine was taken showing diffuse degenerative disc disease without any

herniation. Dr. C. Richard Filson, a psychologist, also examined the claimant and opined that the

claimant exhibited severe conversion symptoms but no evidence of conscious malingering.

       Dr. Mark A. Cohen, an orthopedist, examined the claimant on September 15, 1995, at

which time he noted the claimant‟s restricted range of motion and muscle spasms upon

examination. Although Dr. Cohen indicated that the claimant‟s symptoms were consistent with

RSD, he did not feel qualified to render an opinion regarding whether the claimant actually

                                                                             VWC File No. 156-81-61

suffered from RSD. He also believed that a neurological consultation and EMG studies may be

helpful in diagnosing the claimant.

           The claimant was examined by Dr. Dale W. Pcsolyar, a neurologist, on October 11, 1995,

who opined that the claimant suffered from chronic pain “with hyperesthesia in the left inguinal

area,” chronic pain syndrome, and “Parkinsonian features” that were possibly related to his

medications.          Dr. Pcsolyar believed that the claimant had reached maximum medical

improvement from his “ilioinguinal symptoms,” but also recommended that the claimant

continue to receive treatment from Dr. Hersh for his chronic pain syndrome.

           The medical evidence also reflects that the claimant injured his left foot and ankle on

November 30, 1995, after which he sought treatment from Dr. Cohen and Dr. Raymond D.

Drapkin, Dr. Cohen‟s associate.               In his office note dated December 5, 1995, Dr. Drapkin

diagnosed the claimant as suffering from a “[s]prain of left ankle secondary to giving way of left

leg as a result of the reflex sympathetic dystrophy” and a sprain of the lateral collateral ligament

of his left ankle. It was Dr. Cohen‟s impression that the claimant had ruptured his Achilles


           Thereafter, the claimant came under the care of Dr. Antoni B. Goral, upon referral from

Dr. Hersh.3 On March 29, 1996, Dr. Goral indicated that he had been treating the claimant since

January of 1996 for his left foot and ankle. Dr. Goral opined that the claimant‟s partial Achilles

tendon rupture was related to his RSD. He also opined that the claimant was unable to perform

employment requiring prolonged standing, climbing up or down stairs, steps or ladders, or

carrying items on a permanent basis. In addition, Dr. Goral indicated that the claimant suffered

from 60% impairment of his whole person.

    Dr. Goral‟s area of medical expertise is unclear from the record.

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          Dr. James L. Levenson, a psychiatrist, examined the claimant on behalf of the employer

on September 4, 1996, and reviewed the claimant‟s prior medical records. He also prepared a

report dated October 8, 1996, wherein he opined the claimant suffered from somatization

disorder and depression, but that these conditions were not related to the claimant‟s workplace

injury. Dr. Levenson also noted, after reviewing Dr. Ng‟s report, that the claimant did not have

many of the symptoms of RSD. Dr. Levenson believed that the claimant did suffer from chronic

pain, but indicated that a surgeon would be best qualified to ascertain if the chronic pain was

actually related to the claimant‟s hernia. He also believed that the claimant‟s somatization

disorder was likely to improve if he recognized that he did not actually suffer from RSD.

          The record also contains a letter dated November 25, 1996, written by Dr. A. Janati, a

neurologist. In his letter, Dr. Janati indicated that the claimant suffered from RSD related to his

hernia, and that the claimant suffered from a 51% permanent impairment associated with his left

leg, a 30% permanent impairment of his left arm, and an 8% permanent impairment associated

with his right arm. Although Dr. Janati referred to the claimant as his “patient” in his letter,

there are no office notes pertaining to his treatment of the claimant in the record.

          Dr. Hersh responded to Dr. Levenson‟s report in a letter dated December 30, 1996,

wherein he restated his belief that the claimant suffered from RSD even though the claimant did

not exhibit many of the classic symptoms associated with the condition. Dr. Hersh also indicated

that the claimant suffered from severe psychiatric difficulties and that he required treatment for

these conditions.

          The record reflects that the claimant continued to receive treatment from Dr. Hersh

throughout 1998, 1999, and 2000 and that he also participated in physical therapy during this

period.    On November 20, 2000, Dr. Hersh wrote a letter to the Commission wherein he

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indicated that he had been treating the claimant since 1994, that the claimant suffered from RSD,

and that the claimant‟s condition was related to his hernia injury.

       The record contains a disability slip dated December 7, 2000, prepared by Dr. Hersh and

stating the following: “Shuttle Service—Driver to medical appointments required. Pt. unable to

drive because of severe muscle spasm.”         Dr. Hersh also indicated that the “onset” of the

claimant‟s symptoms requiring the shuttle service began in 1998.

       On January 3, 2001, Dr. Hersh wrote another letter to the Commission stating that the

claimant‟s “Global Assessment of Functioning (GAF) is 40 (forty)” and that the claimant had a

percentage disability rating of 60%.

       The record also contains a letter dated February 5, 2001, from Dr. Marc D. Connell, an

orthopedic surgeon, reflecting that Dr. Connell had evaluated the claimant‟s complaint of left

knee pain. Dr. Connell noted that the claimant‟s past history was consistent with RSD. Dr.

Connell also reported that the claimant denied any “re-injury that he can recall.”              After

completing his examination of the claimant, Dr. Connell diagnosed the claimant with a

“[p]robable internal derangement of the left knee.” He recommended an MRI.

       In yet another letter to the Commission dated February 6, 2001, Dr. Hersh reported to the

Commission that the claimant suffered from RSD, that the claimant‟s symptoms had spread to

various areas of his body, and that the claimant had an overall impairment rating of 60%--with a

60% disability associated with his left leg, a 40% disability associated with his left arm, a 40%

disability associated with his right leg, and a 20% disability associated with his right arm.

       The claimant returned to Dr. Cohen on February 15, 2001, at which time Dr. Cohen

reported that the claimant‟s MRI confirmed a tear of his left medial meniscus and

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chondromalacia of the medial femoral condyle and trochlea. Dr. Cohen performed arthroscopic

surgery on the claimant‟s left knee on March 6, 2001.

         On March 13, 2001, Dr. Hersh reported in a disability slip that the claimant had

experienced a relapse of his symptoms following his surgery, that he was unable to work, and

that he needed physical therapy.

         Dr. Drapkin examined the claimant again on May 11, 2001, at which time the claimant

complained of discomfort in his back. Dr. Drapkin diagnosed the claimant as suffering from

chronic lumbar radiculopathy, recommended that the claimant not work, and prescribed a back


         On June 20 and June 21, 2001, the claimant underwent a functional capacity evaluation.

Suzanne Ginsberg Schwager, the therapist who evaluated the claimant, noted that 13 of the 16

tests performed by the claimant showed inconsistencies reflecting that he may not be

demonstrating his maximum capabilities during the evaluation. She also noted the following

inconsistency factors: that the claimant stated during testing that he was unable to lift his left

arm from his lap but he later used it to hold a phone; that the claimant demonstrated poor

strength in his left hip flexor at one stage of the testing but later used it to push a box onto a

shelf; that during testing the claimant stated he could not stand for more than 2 minutes but that

he stood for twenty minutes while at the receptionist‟s desk after the testing was completed; and

that on the first day of testing the claimant reported being unable to walk without a cane but

appeared for his second day of testing without his cane. The evaluator concluded that the

inconsistencies demonstrated during the claimant‟s testing “may be secondary to unidentified

impairment, easy fatigue-ability, fear of re-injury/pain, test anxiety, and/or symptom

magnification syndrome.”

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       The claimant returned to Dr. Cohen on August 9, 2001, at which time Dr. Cohen noted

that the claimant exhibited hypersensitivity to touch, numbness and weakness of the left leg,

tenderness in the lumbar spine and a restricted range of motion “in all places.” Dr. Cohen also

stated the following regarding the claimant‟s condition:

       At this point in time, I believe the patient has reflex sympathetic dystrophy
       syndrome as a result of his inguinal hernia repair. Apparently, he has been
       through multiple extensive testing including psychological testing, and has been
       found to be completely disabled. It appears that he has an effective loss of use of
       his left lower extremity.

       On October 26, 2001, Dr. Hersh wrote a letter wherein he indicated that the claimant had

been his patient since 1994 and that, while under his care, the claimant had participated in

physical therapy, biofeedback and self-hypnosis training, group therapy, individual therapy and

received complex medication management. Dr. Hersh also indicated that he considered the

claimant to be totally disabled. In addition, Dr. Hersh also wrote to the Commission on October

9, 2001, at which time he indicated that he had observed the claimant experiencing spasms on

many occasions during his history of treating the claimant. He again opined that the claimant

was totally disabled and not employable due to the unpredictable onset of his spasms.

       Dr. Hersh continued to monitor the claimant‟s condition throughout 2001 and into 2002,

during which time he prescribed physical therapy and also referred the claimant to Dr. Drapkin

for pain control.

       Dr. John C. Detrick, a surgeon, examined the claimant on behalf of the employer and

prepared a report dated February 20, 2002.       Dr. Detrick also reviewed several videotaped

surveillances of the claimant and the claimant‟s medical records. Dr. Detrick stressed that he

was not a “disability doctor” and that he could not evaluate the extent of the claimant‟s

impairment. However, he did confirm the absence of a recurrent hernia. He also found that “the

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clinical evidence for on-going reflex sympathetic dystrophy” was “somewhat lacking,” and

stated further that he had not in the course of his clinical practice “encountered a similar case

where one would suffer the consequences of reflex sympathetic dystrophy from an inguinal

hernia repair.” Nevertheless, he agreed that it was “theoretically possible.” In addition, Dr.

Detrick noted that the claimant‟s restricted activities during his examination were quite different

from those reflected in the videotaped surveillance.

       On May 24, 2002, Dr. Drapkin examined the claimant and reported that the claimant

continued to have a problem with pain in his legs. He also diagnosed the claimant as suffering

from RSD and lumbar radiculopathy and stated that the claimant was to receive bilateral sciatic

nerve blocks. The claimant returned to Dr. Drapkin on June 4, 2002, at which time he reported

that the claimant was experiencing pain in his back radiating into his left legs and again indicated

that the claimant had RSD and was to receive bilateral sciatic nerve blocks. Dr. Drapkin also

noted that the claimant was to remain off of work.

       Dr. Robert A. Smith, an orthopedist, examined the claimant on behalf of the employer on

September 6, 2002. Dr Smith also reviewed the claimant‟s prior medical records and videotaped

surveillances of the claimant.

       Dr. Smith reported that the claimant walked with a limp while he was in the office but

that he also observed the claimant when the claimant was leaving the building and that the

claimant was walking normally at that time. In addition, Dr. Smith was unable to detect any

spasm when palpating the claimant‟s left groin, neck and arm.

       Dr. Smith opined that there was no evidence that the claimant suffered from RSD and

that the claimant was not totally disabled. He indicated that in his 17 years of practicing as an

orthopedist he had never heard of a case of RSD originating from a patient‟s groin and indicated

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that it was impossible to develop RSD as the result of a groin injury because the nerves of the

groin do not enter the legs or arms. Dr. Smith‟s viewing of the claimant‟s conduct during his

examination as contrasted with his demeanor and activities while exiting the building and his

activities and demeanor shown during surveillance also led Dr. Smith to conclude that there was

a strong secondary gain factor involved.

         On September 9, 2002, Dr. Hersh wrote a letter reporting that, during his history of

treating the claimant, the claimant would sometimes walk into his office without pain or visible

spasms but that his condition would sometimes change during his 40-minute visits. He conceded

that there were times that the claimant would be capable of performing such activities as playing

with his children and performing household chores and indicated that he encouraged the claimant

to perform such activities when possible. Nevertheless, he maintained his opinion that the

claimant suffered from RSD and was unemployable.

         The record also contains a letter dated December 20, 2002, wherein Peter Boyle, a

physical therapist, reported that he had been treating the claimant since 1994. Mr. Boyle

believed that the inconsistency of the claimant‟s disease rendered him totally disabled.

         Upon essentially this evidence, the Deputy Commissioner concluded that the claimant

failed to prove he is totally and permanently disabled as a result of his workplace injury. We


         Under Code § 65.2-503(C), an injured employee may receive benefits for “permanent and

total incapacity” when he suffers the following types of injuries:

         1. Loss of both hands, both arms, both feet, both legs, both eyes, or any two
         thereof in the same accident;
         2. Injury for all practical purposes resulting in total paralysis, as determined by
         the Commission based on medical evidence; or

                                                                                       VWC File No. 156-81-61

        3. Injury to the brain which is so severe as to render the employee permanently
        unemployable in gainful employment.

Code § 65.2-503(C). The Supreme Court has interpreted this section to allow “permanent and total”

awards for less than total physiological loss when it is shown that, because of the injury, the

employee is essentially unable to engage in gainful employment. In Virginia Oak Flooring Co. v.

Chrisley, 195 Va. 850, 80 S.E.2d 537 (1954), an employee sought permanent and total disability

benefits based on the loss of use of both of his legs from a single accident. The evidence showed

that the employee had a 25% loss of use of one leg and a 30% loss of use of the other leg. The

evidence further showed that the employee “was not able to hold a job and earn a living but „he is

probably able to do odd jobs around the house.‟” Id. at 857, 80 S.E.2d at 541. The Commission

determined that the evidence established that the loss was “total” based on the loss of use of the

employee‟s legs as well as his inability to engage in gainful employment. The Court held that the

latter consideration was proper in determining whether an employee‟s loss was “total” and affirmed

the award. See also Georgia-Pacific Corp. v. Dancy, 24 Va. App. 430, 482 S.E.2d 867 (1997),

aff‟d, 255 Va. 248, 497 S.E.2d 133 (1998).

        Two physicians have opined that the claimant‟s suffers from permanent, ratable

impairments to more than one of his extremities and that, as a result, the claimant is totally

unable to work—Dr. Hersh and Dr. Janati.4 In November of 1996, Dr. Janati opined that the

claimant had a 51% permanent impairment to his left leg, a 30% permanent impairment to his

left arm, and an 8% permanent impairment to his right leg associated with his workplace injury.

 Dr. Ng and Dr. Goral have assigned “whole person” disability ratings to the claimant but have not specifically
quantified impairments to the claimant‟s various extremities. In addition, Dr. Cohen has opined that the claimant
has sustained an effective, permanent loss of use with respect to his left leg. To recover permanent total disability
benefits, a claimant must establish ratable disabilities to at least two of his extremities. See Hill v. Woodford B.
Davis General Contractor, 18 Va. App. 652, 447 S.E.2d 237 (1994). Under the circumstances, the opinions of these
particular physicians are insufficient to sustain the claimant‟s burden of proof.

                                                                              VWC File No. 156-81-61

However, other than Dr. Janati‟s reference to the claimant as his “patient” in his letter, there is no

evidence that Dr. Janati ever actually examined the claimant. Under the circumstances, we agree

with the Deputy Commissioner‟s conclusion that Dr. Janati‟s opinion is not persuasive.

        Furthermore, although Dr. Hersh has treated the claimant since 1994, we are not

necessarily bound by his opinion. In cases of conflicting medical evidence, "[t]he general rule is

that when an attending physician is positive in his diagnosis of a disease, great weight will be

given by the Courts to his opinion. However, when it appears... that the diagnosis is shaded by

doubt, and there is medical expert opinion contrary to the opinion of the attending physician,

then the trier of fact is left free to adopt the view which is most consistent with reason and

justice." Pilot Freight Carriers Inc v Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986)

(quoting McPeek v P W & W Coal Co., 210 Va. 185, 188, 169 S.E.2d 443, 445 (1969). See also

C.D. S. Services v. Petrock, 218 Va. 1064, 243 S.E.2d 236 (1978); Williams v. Fuqua, 199 Va.

709, 101 S.E.2d (1958).

        We find that Dr. Hersh‟s opinion regarding the extent of the claimant‟s impairment is

shaded by doubt given his inability to remember the precise manner in which he quantified the

claimant‟s disability ratings; the claimant‟s lack of symptoms commonly associated with RSD such

as temperature variations in his limbs, discoloration, or irregularity in his hair patterns; and the

contrary medical opinions expressed by other physicians such as Drs. Smith, Levenson and Detrick.

We note further that one of the physicians to whom Dr. Hersh referred the claimant, Dr. Ng,

disagrees with Dr. Hersh‟s conclusions that the claimant suffers from RSD and that the claimant‟s

difficulties with his right upper extremity are related to his workplace injury.

        We are also not persuaded by Dr. Hersh‟s opinion regarding the claimant‟s capabilities

given his reliance, at least in part, upon the claimant‟s description of his symptoms when diagnosing

                                                                          VWC File No. 156-81-61

the claimant. The Deputy Commissioner found the claimant to be implicitly incredible and we find

it appropriate to defer to her in this regard. See Mosazghi v. Pizza Hut, VWC File No. 201-64-09

(October 7, 2002); Hairston v. Moyer, VWC File No. 201-38-65 (March 22, 2002). We also

conclude that the Deputy Commissioner‟s concerns regarding the claimant‟s credibility are

supported by the videotaped surveillances of the claimant showing the claimant walking, climbing

and using his arms without difficulty—as contrasted with his restrained activities during the course

of the hearing.

       Finally, we note that even Dr. Hersh recognized in March of 1995 that the claimant may be

capable of some form of relatively sedentary employment if he were retrained and if he was not

required to work full “9 to 5” days.

       In sum, we conclude that the evidence does not predominate in establishing that the claimant

is totally unable to work as a result of permanent, ratable impairments to more than one of his


       We turn next to the issue of whether the claimant established that he is entitled to

reimbursement for his shuttle fees. The employer is responsible for the claimant‟s reasonable and

necessary transportation costs associated with obtaining medical treatment related to his industrial

injury. See Mabe v. Great Barrier Insulation Co., 70 O. I. C. 288 (1991). However, we do not find

that the claimant has proven his claimed shuttle expenses were reasonable and necessary.

       Ms. Perry testified, through her affidavit, that the claimant did not request reimbursement

for his shuttle expenses—dating back as far as 1998—until 2000. She also testified that the

claimant would have been provided with free transportation to his medical appointments if he had

requested transportation sooner. Under the circumstances, we do not find that the claimant‟s shuttle

expenses were reasonably incurred.

                                                                             VWC File No. 156-81-61

       We also question the accuracy and necessity of the actual expenses claimed since the

receipts for the claimant‟s shuttle trips were not prepared until after the transportation services were

provided and because the claimant was reimbursed for his personal mileage to and from medical

appointments during the same time period, thereby supporting the conclusion that the claimant was

capable of driving himself.

       For these reasons, the February 11, 2002, Opinion of the Deputy Commissioner is


       This matter is removed from the Review docket.


       This Opinion shall be final unless appealed to the Virginia Court of Appeals within thirty

days of receipt of this Opinion.

cc:    James R. Boykins, Esquire
       Law Office of James R. Boykins
       1200 G Street, N.W., Suite 800
       Washington, D.C. 20005

       Virginia Power
       P. O. Box 26666
       Richmond, VA 23261

       Virginia Electric & Power Co.
       Acordia Employers Service
       P. O. Box 1567
       Abingdon, VA 24212
       (Copy sent Certified Mail)


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