In the Matter of The Worker's Comp. Claim of Paul Watkins v. State

• Decision Date: 21 March 2011
• Docket Number: No. S–10–0129.,S–10–0129.
• Citation: 2011 WY 49,250 P.3d 1082
• Parties: In the Matter of the Worker's Compensation Claim of Paul WATKINS, Appellant (Claimant),v.STATE of Wyoming, ex rel., WYOMING MEDICAL COMMISSION and Wyoming Workers' Safety and Compensation Division, Appellee (Respondent).
• Court: Wyoming Supreme Court

250 P.3d 1082

2011 WY 49

In the Matter of the Worker's Compensation Claim of Paul WATKINS, Appellant (Claimant),

v.STATE of Wyoming, ex rel., WYOMING MEDICAL COMMISSION and Wyoming Workers' Safety and Compensation Division, Appellee (Respondent).

No. S–10–0129.

Supreme Court of Wyoming.

March 21, 2011.

Representing Appellant: Bill G. Hibbler of Bill G. Hibbler, P.C., Cheyenne, Wyoming.Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; James M. Causey, Senior Assistant Attorney General; Kelly Roseberry, Assistant Attorney General.Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.VOIGT, Justice.

[¶ 1] Paul Watkins (the appellant) felt a pop in his back and began experiencing pain after he jumped down from his work truck. The Wyoming Workers' Safety and Compensation Division (the Division) awarded temporary total disability (TTD) benefits for a period of time and then eventually terminated those benefits. The Division's denial of benefits was affirmed in a contested case hearing before the Wyoming Medical Commission (the Commission) and the appellant appealed from that decision. Finding the Commission's decision to be supported by substantial evidence, we will affirm.

ISSUE

[¶ 2] Was the Commission's determination that the appellant did not meet his burden of proving he was entitled to further TTD benefits supported by substantial evidence?

FACTS

[¶ 3] When the appellant was in his early teens, he suffered a work-related injury in Colorado, requiring a surgical discectomy at the L4 level of his spine. On a separate occasion, in 1989, the appellant was seen at an emergency room in Colorado, reporting that after bending over, he “felt a sharp pop” in the lumbar area of his back. The appellant returned to the same emergency room in 1994 and 1996 complaining of back pain. In 2000, the appellant went to a walk-in clinic in Casper, Wyoming, complaining of severe back pain after his “back popped.” There he was diagnosed with a lumbar strain, with pain at the L3–L4 level.

[¶ 4] On January 4, 2007, the appellant was seen in the emergency room in Cheyenne, Wyoming, again complaining of back pain. The doctor's report indicated that “2 days ago [the appellant] was at work and jumped off a tire and heard a pop in his back. The patient ever since then has had back pain in the upper L-spine region....” An x-ray of the appellant's lumbar spine showed no evidence of acute fractures or dislocations. The radiologist did note, however, facet joint disease and narrowed disc space at the L4–L5 level of the spine, the level of the appellant's previous discectomy. The appellant was referred to Dr. Steven Beer, a neurosurgeon in Cheyenne.

[¶ 5] The appellant was seen by Dr. Beer on January 8, 2007. According to Dr. Beer's report, the appellant reported “a painful pop when he stepped off a tire. He has had pain in the low back and down into the right buttock and right leg ever since.” Dr. Beer's examination included strength, reflexes, sensation, and straight leg raising, all of which were “normal.” Dr. Beer did however note that “[t]he [appellant] appear[ed] to [be in] pain as he change[d] positions.”

[¶ 6] On Dr. Beer's referral, the appellant underwent a magnetic resonance image (MRI) test on January 15, 2007. The interpreting radiologist found some laminectomy changes and degenerative facet changes at the L4–L5 level, as well as disc degenerative disease. The MRI showed a disc bulge at the L4–L5 level and a small fragment in the epidural fat space, but the radiologist observed that “[i]t does not appear to create any appreciable pressure effect to the thecal sac or to the exiting right V nerve....” Dr. Beer's interpretation of this MRI was a “large herniated disc at the L4–5 on the right.”

[¶ 7] A few days after his first visit with Dr. Beer, the appellant submitted a Wyoming Report of Injury to the Division alleging that his “back popped” when he jumped from his trailer tire to the ground after applying a tarp to the load in his truck. The report included a question asking whether this body part had been previously injured. The appellant checked the “no” box. On February 28, 2007, the Division issued a Final Determination on Temporary Total Disability Rate of Pay, approving the appellant's request for TTD benefits.

[¶ 8] The appellant followed up with Dr. Beer again on February 28, 2007, complaining of right leg pain. In his notes related to this visit, Dr. Beer referenced the appellant's previous L4–5 discectomy and stated that the pain had returned and the MRI revealed a “reherniation.”

[¶ 9] On March 7, 2007, the Division issued a new final determination denying the appellant further benefits related to this injury. The Division denied compensation for medical treatment and wage losses after February 17, 2007, stating that they were not related to the work incident, but were “due to the pre-existing, underlying degenerative disc disease and prior surgery to the lumbar spine.”

[¶ 10] On March 22, 2007, on referral by Dr. Beer, the appellant was seen by Dr. George Girardi for a L3–L4 lumbar epidural steroid injection. Dr. Girardi's notes indicated “a history of low back pain going down his right leg,” and his diagnosis was “[l]umbar degenerative disk disease.” A month later, the appellant again was seen by Dr. Beer on April 23, 2007. Dr. Beer's notes do not mention the L3–L4 epidural steroid injection, but he does recommend that the appellant receive an L4–L5 facet block injection. The appellant returned to Dr. Girardi on May 11, 2007, for the recommended bilateral L4–L5 facet joint injections. At that time, Dr. Girardi's diagnosis was “[l]ow back pain due to lumbar spondylosis.”

[¶ 11] On April 30, 2007, the Division issued a Redetermination reinstating benefits. The Division acknowledged its previous denial of benefits, but stated that it had since received additional information regarding the appellant's case and determined that it could now approve payment of benefits. It is unclear from the record what was the “additional information” referenced by the Division.

[¶ 12] On May 21, 2007, almost five months after the appellant's original injury, the Division requested that the appellant be seen by Dr. Paul Williams in Denver, Colorado, for an independent medical examination (IME). Dr. Williams conducted a physical examination of the appellant and reviewed his medical records. In his report, Dr. Williams noted the appellant's history of an L4–L5 discectomy as well as his current low back and right leg pain as a result of his work activities on January 2, 2007, without neurological deficit. Dr. Williams concluded that although the appellant sustained acute back and right leg pain as a result of his work incident on January 2, 2007, there was no direct causal relationship between the need for a lumbar fusion and the work injury, that no surgery was necessary, and that the Division was not responsible for further treatment related to the incident.

[¶ 13] Based on Dr. Williams' IME, the Division issued a final determination on June 19, 2007, again denying payment for further benefits. The Division determined that as of May 21, 2007 (the date of Dr. Williams' IME), the appellant was considered to be at maximum medical improvement (MMI) for his January 2, 2007, work injury. The appellant objected to this determination and requested a contested case hearing. The matter was referred to the Wyoming Medical Commission and a contested case hearing was scheduled.

[¶ 14] On June 25, 2007, the appellant was again seen by Dr. Beer, this time for a follow-up after the injections given by Dr. Girardi. Dr. Beer reported that the appellant was “not interested in further injections,” and “[l]ow back pain, nicely improved after L4–L5 facet block.” On July 3, 2007, the appellant was seen by a Casper neurosurgeon, Dr. Debra Steele, for an additional opinion. Dr. Steele found the appellant's muscle strength, reflexes, and sensation were all normal. Dr. Steele concluded that the appellant had a herniated disc with a free fragment at the L4–L5 disc space, and, given the ongoing complaints, she recommended that he undergo a decompression and fusion at that level.

[¶ 15] The contested case hearing was held on April 11, 2008. Both the appellant and the Division presented evidence. The Commission issued its Findings of Fact, Conclusions of Law and Order of Medical Commission Hearing Panel on April 29, 2008. The Commission concluded that the appellant had reached MMI on May 21, 2007, and denied ongoing treatment and further TTD benefits after that date. The appellant appealed that decision and the district court entered an order affirming the Commission's decision on April 30, 2010. The appellant timely appealed the matter to this Court.

STANDARD OF REVIEW

[¶ 16] Our review of agency actions is governed by the standards set forth in W.R.A.P. 12.09(a) ¹, and the Wyoming Administrative Procedure Act, Wyo. Stat. Ann. § 16–3–114(c) (LexisNexis 2009) ². We review each case as if it came directly from the agency and afford no deference to the district court's decision. Newman v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2002 WY 91, ¶ 7, 49 P.3d 163, 166 (Wyo.2002). We will not adjust the decision of the agency unless it is “clearly contrary to the overwhelming weight of the evidence on record.” Id. at ¶ 26, at 173. An evidentiary ruling, such as that presented here, is reviewed under the substantial evidence standard:

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. See, Wyo. Consumer Group v. Public Serv. Comm'n of Wyo., 882 P.2d 858, 860–61 (Wyo.1994); [ Bd. of...