In re Pino

• Decision Date: 17 February 2000
• Docket Number: No. 98-79.,98-79.
• Citation: 996 P.2d 679
• Parties: In the Matter of the Worker's Compensation Claim of Gerald S. PINO, An Employee Of Cowboy Dodge: Gerald S. Pino, Appellant (Petitioner), v. State of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division, Appellee (Respondent).
• Court: Wyoming Supreme Court

996 P.2d 679

In the Matter of the Worker's Compensation Claim of Gerald S. PINO, An Employee Of Cowboy Dodge:

Gerald S. Pino, Appellant (Petitioner), v. State of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division, Appellee (Respondent).

No. 98-79.

Supreme Court of Wyoming.

February 17, 2000.

Representing Appellant: Terry J. Harris of Terry J. Harris, P.C., Cheyenne, Wyoming.

Representing Appellee: William U. Hill, Attorney General; John W. Renneisen, Deputy Attorney General; Gerald W. Laska, Senior Assistant Attorney General; and Bernard P. Haggerty, Assistant Attorney General, Cheyenne, Wyoming.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and TAYLOR,¹ JJ.

THOMAS, Justice.

The resolution of this case, in which judicial review is sought of an Order Denying Benefits for a worker's compensation claim, depends upon the recognition of a duty on the part of a hearing examiner to invoke the rules of law pertaining to the claimant's theory of the case. The issue claimed by Gerald S. Pino (Pino) is that the decision of the hearing examiner, denying benefits for a herniated disc in his back, was contrary to the substantial weight of the evidence, and such a decision is arbitrary, capricious, or other than in accordance with law. Pino was injured on the job. A bulge in a disc in Pino's back was disclosed by a Magnetic Imaging Resonance (MRI) test subsequent to that injury. Some twenty-one months later, the disc herniated when Pino coughed while stepping out of the shower at home. Two treating physicians testified that the ruptured disc was, as a matter of reasonable medical probability, a result of the earlier injury on the job. They did concede that, in the absence of any previous objective investigation such as x-rays or an MRI, the bulge could have been present prior to the injury. Both stated, however, that no symptoms of such a condition were present prior to the job injury, and that fact supported the opinion of each of the doctors that the condition did not antedate the injury. The hearing examiner ruled that the cause of the herniation was the cough while Pino was at home and, therefore, Pino had failed to prove a job-related injury. Our examination of the Order Denying Benefits in light of the record persuades this Court that the hearing examiner overlooked, and for that reason failed to apply, the pertinent rules of law relating to a second compensable injury. The result was a decision contrary to law, and the Order Denying Benefits must be reversed and the matter remanded to the Office of Administrative Hearings for entry of an order in accordance with this opinion.

In the Brief of Appellant, the issue is stated in this way:

Did the Wyoming Office of Administrative Hearings (OAH) act arbitrarily, capriciously, other than in accordance with Wyoming workers' compensation law, and contrary to the substantial evidence before it, when it entered its December 4, 1997 final order denying Appellant Gerald S. Pino's claims for Wyoming workers' compensation benefits filed in connection with his continuing back complaints arising out of his original compensable back injury with Cowboy Dodge?

This Statement of the Issues is found in the Brief of Appellee, filed on behalf of the State of Wyoming, ex rel. Wyoming Workers' Safety and Compensation Division (Division):

The Hearing Examiner found the Employee's herniated disc was caused by his coughing while he exited the shower at home, not by his prior, work-related back injury.

A. Were the Hearing Examiner's findings supported by substantial evidence, within his discretion, and in accordance with law?

In June of 1995, Pino was employed as a mechanic in an automobile dealership in Cheyenne. He was severely injured when a van that he was working on slipped out of gear and rolled, pinning him against a workbench. His injuries were treated at the hospital, where x-rays disclosed no bone damage, and he returned to work within a couple of days. By the end of the following week, after he had continued working at his job, Pino sought treatment from his family physician, Dr. S. Pino's complaints were debilitating lower back pain and radiating bilateral leg pain. Dr. S. ordered an MRI test, which revealed mild disc degeneration and a bulge in Pino's spine at L-4 L-5, L-5 S-1. Dr. S. treated Pino conservatively with muscle relaxers, anti-inflammatories, and therapy for the following six months.

Pino returned to work part-time within the six month period, and he began working full time shortly thereafter. Intermittently, he had good days and bad days over the course of the next fourteen months. He suffered recurrent pain, and occasionally he experienced work-related flare-ups. He would take time off from work depending on the nature and length of the flare-up. Dr. S. articulated an opinion that the symptoms experienced by Pino related back to the initial injury in June of 1995.

In March of 1997, Pino coughed as he was getting out of the shower at home; he heard a pop; and immediately felt pain that was very like the pain he experienced when the van pinned him against the workbench in 1995. Another MRI was obtained, and it disclosed a ruptured disc in Pino's back at the site of the bulge. Pino had experienced no trouble with his back prior to the injury in 1995, but the examination by Dr. S. following that occasion disclosed the bulge in his back and a weakening of the fibrous tissue surrounding the disc that ruptured. Dr. S., in his testimony, advanced the opinion that to a reasonable degree of medical probability, Pino's condition was attributable to the work-related injury in June of 1995. On cross-examination, Dr. S. conceded that in the absence of any x-rays taken prior to the 1995 injury, there was no way to tell definitively whether Pino had asymptomatic bulges or not. Dr. S. was clear that a hot shower would not relax the surrounding muscles and cause the bulge. Furthermore, a cough would not result in herniation of a disc in an asymptomatic individual who did not already have some defect.

At the hearing, the Division endeavored to inject doubt with respect to the opinion of Dr. S. by questioning him about the report of the radiologist concerning the MRI that was made in 1995. The questioning suggested that a statement in the radiologist's report reflecting that Pino's symptoms were in the opposite, right leg, in the context of his identification of a bulge and spurring that was asymmetric in the left paracentral region at L-5 S-1, which might indicate mild disc protrusion beyond the osteophytes in that area, demonstrated that the 1995 injury was not related to the ruptured disc. The ultimate statement was that the finding, i.e., the disc bulge and spurring that are asymmetric on the left paracentral region at L-5 S-1, was of questionable clinical significance because of the symptoms in the right leg. When asked to explain that, Dr. S. pointed out that the radiologist was hedging because he did not know whether that bulge was related to Pino's symptoms. Dr. S. pointed out that it is possible for a small fragment to bulge to the midline or even to the right that is not seen on the MRI and that the radiologist was simply saying he did not know whether that condition was present or not. Dr. S. agreed that there was no way of saying for sure because of the absence of prior objective diagnostic reports like the MRI or an x-ray, but for him it was a safe assumption that the crushing between the van and the workbench precipitated the bulge. He essentially supported that opinion by pointing out that Pino had no symptoms prior to the 1995 injury and the symptoms presented themselves following the injury.

Another expert, Dr. V., the neurosurgeon who treated Pino, testified he had reviewed the two MRI's. According to Dr. V., although the 1995 MRI did not show an overtly herniated disc, a bulge was present which could have resulted from micro trauma over a period of time or a single episode. Dr. V. testified that only ten to fifteen percent of people about Pino's age have asymptomatic disc bulges and that Pino had only "very mild" degenerative changes in his spine in July of 1995. Like Dr. S., he could not say with certainty what had caused the bulge, but his opinion was the same that the fact that Pino was asymptomatic prior to the 1995 accident and became symptomatic thereafter resulted in a conclusion in terms of reasonable medical probability that the 1995 injury had precipitated the bulge. He also pointed out that symptoms in the opposite leg of the location of the bulge were not very significant because damage had been done and the degenerative process had started.

Dr. V., during cross-examination by the Division, summarized his position in this way:

I expect that he sustained an injury with his initial accident in 1995 that started degeneration in the disc, and accounted for the disc bulge seen on the MRI scan. I expect that his disc continued to weaken as the degeneration's usually a gradual process such that it was sufficiently weakened with a rather minor occurrence of a cough, it was enough to cause a disc herniation.

While Dr. V. also conceded that a disc bulge could come from bending, twisting, or lifting and that Pino could have been asymptomatic and had a disc bulge prior to the injury, he still pointed to the reliance in his diagnosis upon the fact that Pino had been asymptomatic until after his work-related injury.

In addressing these matters in the Order Denying Benefits, the hearing examiner included in his Conclusions of Law:

6. Pino has failed to meet his burden. The evidence does establish that in 1995 Pino suffered a work-related injury which may have resulted in a disc bulge. From 1995 through May 1997, Pino worked but had periodic flare-ups of his low back pain radiating into his legs. He sought medical treatment and these treatments were paid for by the Division. In May 1997, while at home, Pino coughed, felt a pop, and

...