Worker's Comp. Claim of Price v. State ex rel. Wyoming Workers' Safety & Comp. Div.

• Decision Date: 08 December 2011
• Docket Number: No. S–11–0117.,S–11–0117.
• Citation: 2011 WY 160,266 P.3d 940
• Parties: In the Matter of the Worker's Compensation Claim of Valerie D. PRICE, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).
• Court: Wyoming Supreme Court

2011 WY 160

266 P.3d 940

In the Matter of the Worker's Compensation Claim of Valerie D. PRICE, Appellant (Petitioner),

v.STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).

No. S–11–0117.

Supreme Court of Wyoming.

Dec. 8, 2011.

Representing Appellant: Sky D Phifer, Phifer Law Office, Lander, Wyoming.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; James M. Causey, Senior Assistant Attorney General.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

VOIGT, Justice.

[¶ 1] The Office of Administrative Hearings (OAH) upheld the decision of the Wyoming Worker's Safety and Compensation Division (Division) denying the appellant, Valerie Price, reimbursement of medical expenses for an injury suffered following a work-related accident on the basis that the subsequent injury was not work related. This Court upholds that determination.

ISSUE

[¶ 2] Does substantial evidence support the hearing examiner's decision upholding the Division's denial of payment for medical services relating to the appellant's cervical spine?

FACTS

[¶ 3] The appellant slipped and fell on December 25, 2004, while taking out garbage for her employer. She was diagnosed with injuries to her right hip, shoulder, and elbow and received Wyoming workers' compensation benefits for her shoulder injury and an umbilical hernia. Throughout the beginning of 2005, the appellant was treated by Dr. John Harp at the Lander Medical Clinic. Dr. Harp ordered x-rays but no bone injury was apparent. He also prescribed a course of physical therapy to strengthen the appellant's arm and improve her range of motion. In February 2005, Dr. Harp ordered an MRI of the appellant's right shoulder which showed a clavicle fracture, although the doctor noted that the MRI did not reveal injury commensurate with the appellant's complaints. Because the appellant continued to experience pain in her shoulder after three months of physical therapy, Dr. Harp scheduled the appellant for surgery to repair her clavicle. Dr. Harp also noted that there was a risk that the shoulder would not improve following surgery. After the surgery, the appellant was again placed on a course of physical therapy. The doctor noted that the appellant was “slowly, but surely improving” and he expected her to make “a full recovery without permanent impairment.” In May 2005, Dr. Harp allowed the appellant to return to work without restriction. After a follow-up visit in August of 2005, another doctor at the Lander clinic indicated that although the appellant was still experiencing pain in her shoulder, he was “unsure how this relates to her initial injury.” Dr. Harp referred the appellant to Dr. Bienz at Gem City Bone and Joint.

[¶ 4] Dr. Bienz saw the appellant in September 2005, and was unable to determine the source of her continuing shoulder pain and, again, the appellant was prescribed a course of physical therapy. After five weeks, the appellant reported to Dr. Bienz that her shoulder pain had not diminished. The doctor's notes indicate that “her pain seems well out of proportion to [his] objective findings.” Dr. Bienz scheduled the appellant for an MRI, the results of which were normal and indicated no sign of injury to the appellant's shoulder. Once again the appellant was prescribed physical therapy, but the doctor suggested that success would not be likely. Four weeks later, in December of 2005, Dr. Bienz's notes show an increased range of motion in the appellant's shoulder, despite continuing numbness and burning sensations in her fingers. These symptoms, he suggested, are likely a result of the shoulder manipulation performed during the appellant's physical therapy sessions.

[¶ 5] Following a referral, Dr. Behrens examined the appellant on February 7, 2006, and ordered an MRI of the patient's cervical spine. The findings of the radiologist were as follows:

The cervical vertebral bodies show slight loss of the normal cervical lordotic curvature. This is most pronounced at the C4–5 level. The cerebellar tonsils are normotopic in position. The cervical cord is of normal caliber and shows normal signal intensity. There is no evidence of spinal canal stenosis. The cervical discs show normal hydration. There is minor bulging of the annulus at the C5–6 level. This does not result in any canal or foraminal stenosis however. No additional abnormalities are note [sic].

Dr. Behrens, however, never reviewed the results of the MRI after the Division refused to pay for his services.

[¶ 6] The appellant was sent to Dr. Ruttle in March 2006 for an independent medical examination. The doctor concluded that the appellant exhibited no evidence of cervical spine injury following an examination. The appellant was also sent to Dr. Ford who, following a review of the 2006 MRI of the appellant's cervical spine, determined that the results showed “some loss of cervical lordosis and a mild C5–6 disk bulge not causing any nerve root impingement and probably not clinically important considering her age.”

[¶ 7] In 2009, the appellant was referred to Dr. Jenkins who ordered a second MRI ¹ of her cervical spine. The results of the MRI suggested that the appellant was suffering from mild cervical spondylosis, mild foraminal stenosis of the C3–4 disc, and a paracentral bulge of C5–6. The doctor indicated that the bulge in the C5–6 disc should not be giving her the pain she experienced in her right shoulder. In a letter to the Division, Dr. Jenkins suggested that the impingement of the C3–4 disc could affect a nerve leading to the trapezius muscle. He added that “it is just difficult to tell at this time whether any significant pain is coming from her neck. We do know that an EMG was done on [sic] 2006 showed no evidence of cervical radiculopathy.” Under Dr. Jenkins' care, the appellant continued with physical therapy and the doctor noted improvement in her range of motion and a decrease in pain in her arms. The doctor later suggested that “[t]he fact that her shoulder workup is now completely negative and she continues to have pain certainly suggests that the pain may be coming from another source and the most logical source is her cervical spine.”

[¶ 8] The Division issued four Final Determinations objecting to the payments amounting to $2,097.00 for x-rays and an MRI of the appellant's cervical spine on the grounds that injuries to the cervical spine were not the result of a work-related injury. After the appellant requested a hearing, the OAH denied coverage for these tests, finding that the appellant had not met her burden of establishing that, although the condition of her cervical spine may now be causing shoulder pain, any damage to the cervical spine was not a result of her slip and fall. Following an appeal, the district court affirmed the findings of the OAH. The appellant now appeals to this Court.

STANDARD OF REVIEW

[¶ 9] The substantial evidence standard will be applied when this Court reviews evidentiary issues. Dale v. S & S Builders, 2008 WY 84, ¶ 25, 188 P.3d 554, 561 (Wyo.2008). “Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions. It is more than a scintilla of evidence.” Id. at ¶ 11, 188 P.3d at 558 (internal citations and quotations omitted). Such a review requires that we determine whether there was substantial evidence to support the agency's findings. Id.

If the hearing examiner determines that the burdened party failed to meet his burden of proof, we will decide whether there is substantial evidence to support the agency's decision to reject the evidence offered by the burdened party by considering whether that conclusion was contrary to the overwhelming weight of the evidence in the record as a whole.

Id. at ¶ 22, 188 P.3d at 561. “This Court will not re-weigh the evidence nor substitute its judgment for that of the Hearing Examiner.” Thomas v. Star Aggregates, Inc., 982 P.2d 714, 716 (Wyo.1999), citing Snyder v. State ex rel. Wyo. Worker's Comp. Div., 957 P.2d 289, 292–93 (Wyo.1998).

DISCUSSION

[¶ 10] The appellant must establish by a preponderance of the evidence that she is entitled to receive workers' compensation benefits. Snyder, 957 P.2d at 293. For the appellant to meet that burden here, she must show not only that her shoulder pain resulted from an injury to her cervical spine, but also that such injury to her spine resulted from the December 25, 2004, accident. Wyo. Stat. Ann. § 27–14–102(a)(xi) (LexisNexis 2011) (A compensable injury must “aris[e] out of and in the course of employment.”). For the injury to have occurred “in the course of employment,” there must be “a nexus between the injury and some condition, activity, environment or requirement of the employment. Existence of such a nexus depends upon a reasonable relationship between the project being performed and the claimant's job.” State ex rel. Wyo. Workers' Comp. Div. v. Espinoza, 924 P.2d 979, 981 (Wyo.1996) (...