Burd v. State ex rel. Safety and Comp. Div.

• Decision Date: 15 September 2004
• Docket Number: No. 03-207.,03-207.
• Citation: 2004 WY 108,97 P.3d 802
• Parties: William BURD, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).
• Court: Wyoming Supreme Court

97 P.3d 802

2004 WY 108

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

No. 03-207.

Supreme Court of Wyoming.

September 15, 2004.

Representing Appellant: Richard R. Wilking, Casper, WY.

Representing Appellee: Patrick J. Crank, Attorney General; John W. Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; and Kristi M. Radosevich, Assistant Attorney General.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ. LEHMAN, Justice.

[¶ 1] William Burd (Burd) appeals the Wyoming Medical Commission's (Commission) denial of worker's compensation benefits. The Commission concluded that Burd failed to meet his burden of proof that the treatment he received after October 21, 2001, was related to his work injury. The district court subsequently affirmed this decision on review. Burd also appeals the district court's order awarding attorney fees that were lower than the amount claimed and the later denial of a petition for rehearing on the matter. We affirm.

ISSUES

[¶ 2] Burd phrases the issues on appeal as:

1. Was there substantial evidence to support the findings of fact and the decision of the Medical Commission?

2. Was there an abuse of discretion by the Medical Commission in arriving at its decision dated September 6, 2002?

3. Was the decision of the Medical Commission arbitrary or capricious?

4. Did the District Court, Seventh Judicial District, err in affirming the decision of the Medical Commission?

5. Did the District Court err in awarding only $2,500 for attorney fees where the bill for attorney fees was $6,030?

6. Did the District Court err in denying the Motion for Rehearing on the issue of attorney fees?

FACTS

[¶ 3] Burd worked for Dennis M. McCoy & Sons Construction Company (McCoy) as a scraper operator removing overburden dirt from a coal seam from the end of May 2001 until September 27, 2001. On August 21, 2001, Burd apparently began to feel chest pains while at work and was taken by company ambulance to the hospital.¹ Burd indicated on his time card that he had not sustained a work-related injury when he signed out from work that day. However, Burd later explained that on August 21, 2001, he did not know at that time that he might have had a work-related injury. Burd's supervisor, Frank Farris, provided a written statement recounting that Burd stated that he was having chest pains which he had experienced similarly before, "as in months," and that Burd thought he had strained his shoulder and did not mention any back-related injury.

[¶ 4] Upon examination at the hospital, Burd complained of chest pain with impaired use of his left arm but did not report any back or shoulder pain. He also reported having similar chest pain in prior years. Burd was released from the hospital that day and returned to work on his next scheduled shift, three days later. Burd further testified that sometime after August 21, 2001, he reported to a family practice clinic in Casper, Wyoming with complaints of lower back pain, but admitted that he did not complain of any chest pain.²

[¶ 5] Burd continued to work at his normal position with McCoy until September 27, 2001, in some cases working more hours than normal. According to a secretary at McCoy, on Monday, October 1, 2001, Burd called McCoy and advised that he had injured his back over the weekend and would not be back to work until he saw a doctor. This secretary further stated that Burd had not previously complained about a back-related injury, nor had he reported any injury or problem other than the chest pains he experienced on August 21, 2001. Burd, however, stated that he advised McCoy that the pain in his back which began while he was at work and caused him to only work half of his shift on September 27, 2001, had gotten worse over the weekend. On October 16, 2001, Burd spoke with McCoy's manager, William Burke by telephone. Mr. Burke testified that Burd stated he would not return to work due to his wife's difficult pregnancy, the fact that his son had recently undergone surgery in Denver, Colorado, his need to stay home with his children, and his own back injury. Burd also stated that he could not work out of town due to these family issues. Burd did not mention any work-related injuries and did not provide a date that he would be able to return to work. These same facts were noted in a statement made by the secretary at McCoy who also spoke with Burd over the telephone on October 16, 2001.

[¶ 6] On October 21, 2001, Burd's brother and a friend brought two deer to Burd's home because his brother wanted to hang the deer in Burd's shed. According to Burd, when he tried to assist his brother by throwing a rope over a rafter in his shed, he experienced terrible chest pain similar to what he had felt on August 21, 2001 at work. Burd reported to the emergency room and it was recorded that Burd indicated that the chest pain began "after he helped drag out a deer." Burd also stated that he had experienced a similar episode two months previously, but did not report that the past episode was work related. Records of this visit also indicate that Burd reported that he had previously gone to Wyoming Family Practice for a back injury. The emergency room diagnosis was acute chest wall pain and left shoulder pain. Burd was then discharged and referred to an orthopaedic physician. Later, Burd denied advising the hospital that he had "helped drag out a deer," but merely experienced his severe chest pain after he attempted to throw a rope over a rafter to hang the deer. He further testified that he had been experiencing some ongoing chest pain prior to the incident, but felt a significant increase in his chest pain, arm tingling, and hand numbness upon throwing the rope over the rafter.

[¶ 7] On October 23, 2001, complaining of pain in his chest, Burd saw Dr. Thomas Landon, an orthopaedic physician. Burd stated that two months previously he began to experience this pain while he was driving heavy equipment, but Burd did not identify any specific history of this injury. Upon conducting an MRI, Dr. Landon ruled out a suspected rotator cuff injury. He then referred Burd to Dr. Mary MacGuire for evaluation of chest wall pain. Burd reported no particular trauma for the cause of his chest pain, although he reported his chest pain began in August 2001, when he awoke with chest pain. Upon examination of Burd's chest wall, Dr. Mary MacGuire could not isolate the cause of Burd's chest pain. She then referred Burd to her sister, Dr. Anne MacGuire, a rheumatologist.

[¶ 8] On November 20, 2001, Burd filed a report of injury with the State. The State paid temporary total disability benefits and medical care and treatment benefits through October 23, 2001. Later, on December 10, 2001, Dr. Anne MacGuire wrote the State a letter advising that when Burd reported to her office, he explained that he instantly felt an explosion in his chest and neck and his left arm went numb while he was at work on August 21, 2001. In her report, Dr. MacGuire also indicated that Burd had been experiencing chest pain since August 21, 2001, "which is anterior and posterior straight through to about T7." An MRI of the cervical spine was unremarkable so Dr. MacGuire treated Burd with trigger point injections and returned Burd to work at full duty without restrictions.

[¶ 9] In January of 2002, Dr. Anne MacGuire wrote another letter to the State. In this letter, Dr. MacGuire indicated that Burd had clearly been injured on the job on August 21, 2001. However, she questioned whether Burd's current treatments were related to that injury or an October 21, 2001, incident wherein Burd assisted his brother and a friend with some deer. Dr. MacGuire also suggested that a thoracic MRI be performed, but questioned if that test should be covered by the State.

[¶ 10] On January 16, 2002, the State rendered a final determination denying benefits that Burd had claimed after October 21, 2001. On January 23, 2002, Burd saw Dr. Robert Narotzky, a neurosurgeon at Central Wyoming Neurosurgery.³ A thoracic MRI, CT scans, and a discogram were performed which showed a syrinx cavity from T3 through T7, small central disk protrusion and annular fissures and tears. In particular, it was noted that there were annular fissures with leaking primarily on the left side with no contrast extravasation at T4 through T5 with no pain response, annular fissures with contrast leakage at T5 through T6 with a partial concordant pain response, leaking of contrast through annular tears with discordant pain response at T6 through T7, and a dorsal annular fissuring bilaterally more pronounced on the right side and small right sided annular tear with leaking contrast at T7 through T8. In April 2002, Burd saw Dr. Tuenis Zondag, also of Central Wyoming Neurosurgery, whose area of expertise included occupational and pain medicine. For the first time, Burd then complained of a radiating pain that ran down his left leg.

[¶ 11] During his deposition, Dr. Zondag stated that it was his expert medical opinion that Burd's thoracic disc problems were caused by his work at McCoy. He further stated that this opinion would not change based upon any heavy equipment work Burd may have performed in the past, any activity involving dragging a deer, and the syrinx condition of Burd's thoracic spine. However, cross-examination revealed that Dr. Zondag lacked knowledge of Burd's post-August 21, 2001 incident, Burd's work history, and other non-work activities. After epidural injections were unsuccessful, it was determined that surgical intervention would be required.

[¶ 12] After hearing, the Commission entered its decision finding that Burd's demeanor at the hearing was inconsistent with his pain complaints. The Commission also found that Burd's symptoms and pain complaints were not medically consistent with any thoracic spine...