Camacho v. State ex rel. Dep't of Workforce Servsl, Workers' Compensation Div.

• Decision Date: 09 September 2019
• Docket Number: S-18-0287
• Parties: In the Matter of the Worker’s Compensation Claim of: Margarito CAMACHO, Appellant (Petitioner), v. STATE of Wyoming, EX REL. DEPARTMENT OF WORKFORCE SERVICES, WORKERS’ COMPENSATION DIVISION, Appellee (Respondent).
• Court: Wyoming Supreme Court

448 P.3d 834

In the Matter of the Worker’s Compensation Claim of: Margarito CAMACHO, Appellant (Petitioner),

v.STATE of Wyoming, EX REL. DEPARTMENT OF WORKFORCE SERVICES, WORKERS’ COMPENSATION DIVISION, Appellee (Respondent).

S-18-0287

Supreme Court of Wyoming.

September 9, 2019

Representing Appellant: Bernard Q. Phelan, Phelan Law Offices, Cheyenne, Wyoming.

Representing Appellee: Bridget L. Hill, Attorney General; Michael J. McGrady, Deputy Attorney General; James C. Demers, Senior Assistant Attorney General; Kelly D. Mullen, Assistant Attorney General.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

FOX, Justice.

[¶1] Margarito Camacho reported that he injured his back while working in October 2011. The Department of Workforce Services, Workers’ Compensation Division (Division) awarded him temporary benefits. After several years of medical treatment without relief from his pain, Mr. Camacho applied to the Division for permanent partial disability benefits. The Division denied the application, the Office of Administrative Hearings (OAH) upheld the denial, and the district court affirmed the OAH’s decision. We also affirm.

ISSUES

[¶2] We address two issues:

1. Did the OAH correctly calculate the limitations period under Wyo. Stat. Ann. § 27-14-405(h)(ii) ?

2. Does substantial evidence support the OAH’s conclusion that Mr. Camacho failed to prove his 2011 injury was the cause of his inability to return to work?

FACTS

[¶3] On October 14, 2011, Mr. Camacho reported that he injured his lower back when he attempted to lift a heavy item while working at Lowe’s in Cheyenne, Wyoming. The Division reviewed the report, deemed his injury compensable, and opened a case. Over the next few years, Mr. Camacho visited various doctors for physical and psychological evaluations, pain management treatments, and physical therapy.

Medical History

[¶4] Dr. Eric Siiteri conducted several "pain psychological consultations" with Mr. Camacho in December 2011 and January 2012. He noted that Mr. Camacho had "undergone neurosurgical evaluation with [another doctor] who documented bulging in lumbar discs [that] did not warrant surgical intervention" and that he had "undergone additional diagnostic studies [that] ruled out significant neurological injury." At a later pain management psychotherapy session, Dr. Siiteri "had a long conversation with Mr. Camacho about the role that emotional factors including symptoms of depression and anxiety, psychosocial stress and expectations have on the pain experience." Dr. Siiteri stated that Mr. Camacho "understood my, and others, observations of his expression of pain and related behaviors in the absence of significant ... medical findings."

[¶5] In October 2012, Dr. Bruce Belleville evaluated Mr. Camacho to determine his impairment rating. Dr. Belleville found that Mr. Camacho was not a good candidate for surgery, had a history of low-back pain dating back to 2006, and that he had "twenty-six documented emergency room visits that predated the injury of October 14, 2011," including an "emergency room visit about low back pain ... that preceded the injury of record by less than two months." (Emphasis omitted.) He also diagnosed Mr. Camacho with a "profound anxiety disorder." Concluding that he could not "assign an impairment rating for a pain condition that appears to have been pre-existent," Dr. Belleville assigned him a 0% whole person impairment rating.

[¶6] In February 2013, Dr. Ricardo Nieves conducted a second evaluation. Dr. Nieves rated him at 6% whole person impairment and recommended various "light duty" work restrictions. He noted that Mr. Camacho had a "history of pre-existing lower back pain in 2006," and "preexisting chronic depression." His diagnosis was "[c]hronic lower back pain with L5-S1 disc protrusion and discogenic pain with non-verifiable radicular complaints."

[¶7] In April 2013, Dr. Christopher Brigham reviewed Dr. Belleville’s and Dr. Nieves’ impairment evaluations at the request of the Division. He noted that Mr. Camacho’s "[m]edical records document extensive emergency room visits [ ] for a variety of problems, including low back pain" and that "he was seen for low back pain on August 28, 2011; e.g. approximately six weeks prior to his more recent ‘injury.’ " According to Dr. Brigham, imaging studies had been "unremarkable." He stated that Mr. Camacho’s chronic low-back pain was "unsupported by objective findings" and that his complaints of low-back pain dated "back to at least 2006." He believed "[t]he significance of the October 14, 2011 ‘injury’ [was] very questionable." He noted that Mr. Camacho’s imaging studies showed "findings that are commonly seen [in] asymptomatic individuals" and that it was "inappropriate to label him [as] having degenerative [disc] ‘disease’ or to identify this as the cause of his pain." Therefore, Dr. Brigham concluded that there was "no ratable impairment associated with [Mr. Camacho’s] October 14, 2011 injury."

[¶8] Dr. Michael Janssen performed a review of Mr. Camacho’s medical records in August 2013. He found that the "overall pattern of [Mr. Camacho’s] underlying symptoms, utilization of resources and emergency facilities have been chronic in nature for many years, as clearly indicated in all the extensive medical records." He had "a high suspicion that the subjective symptoms [ ] far exceed the underlying objective inconsistent pathology." In Dr. Janssen’s opinion, surgery was "not reasonable or necessary and [had] a very low yield of improving [Mr. Camacho’s] underlying condition."

[¶9] Dr. Brian Wieder also reviewed Mr. Camacho’s medical records in August 2013. He concluded that it was unlikely that the October 14, 2011 incident was the cause of Mr. Camacho’s symptoms. He noted that Mr. Camacho’s symptoms and pathology predated the October 14, 2011 incident and had not changed after the incident. He also observed that Mr. Camacho "appear[ed] fragile psychologically" and "had more visits to the E.R. than any patient [he had] ever seen." Thus, he believed Mr. Camacho would likely be experiencing similar symptoms absent the injury in October 2011. He recommended against surgery.

[¶10] Nevertheless, Mr. Camacho underwent spinal fusion surgery in October 2014. The surgery did not alleviate his pain, and he continued to seek evaluations and pain management treatment. Eventually, the Division referred Mr. Camacho to Dr. Greg Reichhardt for an Independent Medical Evaluation. Dr. Reichhardt noted that Mr. Camacho’s reported symptoms were "out of proportion to objective findings" and were "difficult to explain on a medical basis." He concluded that Mr. Camacho had reached ascertainable loss on October 2, 2015, and assigned him a 6% whole person impairment rating.

Course of Proceedings

[¶11] Based on Dr. Reichhardt’s evaluation, the Division awarded Mr. Camacho a final payment of $436.82 on November 10, 2015. Mr. Camacho timely requested a second opinion. Dr. Belleville performed another evaluation in January 2016, agreeing with Dr. Reichhardt’s 6% impairment rating. Thus, the Division determined that Mr. Camacho was not entitled to any additional payment. Mr. Camacho timely responded to this determination, disagreeing with the 6% impairment rating, and the case was referred to the Medical Commission Hearing Panel. However, Mr. Camacho voluntarily withdrew his objection in January 2017, and the Medical Commission dismissed the case.

[¶12] Mr. Camacho applied to the Division for permanent partial disability (PPD) benefits on February 23, 2017. The Division denied his application because it did not "contain a minimum of five (5) contacts per week over the course of [a] six (6) week period," as required.¹ Mr. Camacho objected to the denial of PPD benefits, and the case was referred to the OAH.

[¶13] At the hearing, Mr. Camacho’s fiancée, Erin Maestas, testified that she lived with Mr. Camacho before his 2011 injury and that he "was normal" before the incident and she "never [ ] even knew that he had a previous injury." She testified that after the 2011 Lowe’s injury, she "could tell he was in pain" and that his condition never improved even though he followed doctors’ instructions "To the T." Mr. Camacho testified that he had a previous back injury "similar to what [he] had gotten from the [Lowe’s] injury" but that he "was doing good until [he] had gotten hurt again." He testified that he did not remember going to the emergency room for back pain two months before the Lowe’s injury. He also testified that he did not remember filing an injury report in 2009 stating that he injured his lower back while working at McDonald’s. Finally, Division claims analyst Kaitlin Hermes testified about the workers’ compensation claims process in general and about various claims made in Mr. Camacho’s case. Neither Mr. Camacho nor the Division called any additional witnesses.

[¶14] The OAH upheld the Division’s denial of PPD benefits, concluding that Mr. Camacho "failed to prove his work injury [was] the cause of his inability to return to employment and failed to prove he timely filed his PPD application."² Concerning whether Mr. Camacho’s inability to work was caused by his 2011 injury, the hearing examiner found:

While PPD benefits are intended to compensate for disability, that disability must be work related. It is not reasonably disputed that Camacho cannot currently work. First, he has not worked and he has not made any serious effort to return to work. There remain work restrictions in place. More generally, Camacho’s reports of pain (whether credible or not) would certainly cripple anybody’s attempts to work. The question is whether Camacho’s inability to work is caused by his 2011 work injury. Unfortunately for Camacho, this Hearing Examiner answers that question in the negative—Camacho has not proven he is unable to work as a result of his 2011 work injury.

Camacho’s medical history, before and after the 2011 work injury, is well documented. For this Hearing

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