Jensen v. State ex rel. Dep't of Workforce Servs.

Decision Date30 August 2016
Docket NumberNo. S–16–0017,S–16–0017
Citation378 P.3d 298,2016 WY 87
PartiesIn the Matter of the Worker's Compensation Claim of Todd Jensen, an Employee of R.S. Bennett Construction: Todd Jensen, Appellant (Petitioner), v. State of Wyoming, ex rel., Department of Workforce Services, Workers' Compensation Division, Appellee (Respondent).
CourtWyoming Supreme Court

Representing Appellant: Jack D. Edwards of Edwards Law Office, P.C., Etna, Wyoming.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Kellsie J. Singleton, Assistant Attorney General.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

FOX, Justice.

[¶1] The Office of Administrative Hearings (OAH) denied Mr. Jensen's worker's compensation claim on the grounds that he failed to prove a causal relationship between his automobile accident and his prior work-related accident. The district court upheld that decision. We affirm.


[¶2] 1. Did the OAH properly apply the second compensable injury rule?

2. Was the OAH's conclusion that Mr. Jensen did not prove by a preponderance of the evidence that his automobile accident was causally connected to his work-related injury supported by substantial evidence?

[¶3] On October 13, 2011, Mr. Jensen suffered a work-related injury when he climbed from the bed of a dump truck and fell onto a rock, fracturing his right hip. Dr. Brian Tallerico performed surgery on the hip, inserting a nail into the femur to repair the fracture. The Department of Workforce Services, Workers' Compensation Division (the Division) approved benefits for the injury to Mr. Jensen's right hip.

[¶4] After surgery, Mr. Jensen's legs were different lengths, causing a limp and constant pain in both hips. The pain eventually became unbearable, and on July 12, 2012, Dr. Tallerico and Dr. Aaron Altenburg performed a total hip replacement in Pocatello, Idaho. After his hip replacement, Mr. Jensen remained in pain, had bursitis, and was pigeon-toed. This caused him to trip and fall down when he walked.

[¶5] Mr. Jensen sought treatment for the symptoms he was experiencing. He began seeing pain specialist Dr. Holly Zoe in Idaho Falls, Idaho. He also revisited Dr. Tallerico, with whom he discussed the possibility of returning to work and the performance of a functional capacity evaluation and an impairment rating examination, which were subsequently scheduled. Dr. Tallerico noted: “Musculoskeletal: gait and station—[c]onventional walking: abnormal toe off.” He performed an impairment rating examination in April of 2013. During that examination, Dr. Tallerico noted:

Gait Observation : He ambulates with an antalgic gait favoring the right lower extremity with a shortened swing phase and stance phase. It is not a true Trendelenburg appearance however. Overall it does not appear that he has excessive external or internal rotation of the right lower extremity.
Manual motor testing however does reveal some give way weakness in basically all major motor groups in the right lower extremity.
It is my opinion that the claimant is now at maximal medical improvement related to this industrial injury and he should be considered fixed and stable at this time.
I am also of the opinion that Mr. Jensen does have permanent work restrictions related to the industrial injury. I believe that this individual has a sincere desire to return to work but given his prior heavy requirements I doubt he can return to the job of injury....

[¶6] On June 3, 2013, Mr. Jensen notified the Division that he was having difficulty walking because his pigeon-toed foot was causing him to fall and that he was going to see Dr. Tallerico about it. On June 5, he followed up with Dr. Tallerico. During that visit, according to Dr. Tallerico's notes, Mr. Jensen “state[d] that he has a hard time walking as right foot [wants] to roll [ ] underneath him and [is] pigeon toe[d] to where he trips over and [falls].” Regarding Mr. Jensen's physical examination, Dr. Tallerico's notes state:

The patient['s] examination is quite interesting. As he sits in the examination chair [it] appears that he does have inversion and internal rotation of his right foot. However with distraction this is not the case [.] [W]hen I inspected his shoes there is no evidence of a [un]even wear pattern on the right shoe sole. He ambulates with a slight limp as he always [is] favoring the right lower extremity[.] [H]is supine exam shows basically even limb length and with distraction and log-rolling of his legs there is essentially no evidence of any malrotation of his right lower extremity due to malposition of his total hip implant. In fact in the supine position. [sic] This is confirmed whereas [h]is foot progression angle is actually symmetric. His hip range of motion is actually quite impressive and symmetric with no abnormal findings on the right side [and] no evidence of impingement[.]

Dr. Tallerico's notes go on to state:

[Mr. Jensen's] clinical symptoms are somewhat perplexing to me. He seems to feel that he has significant internal rotation and intoeing of the right lower extremity but I cannot find any objective evidence to support that on exam.... However I certainly have to take [Mr. Jensen's] subjective complaints into consideration so therefore we are going to have him see the Ortho [tech] in Pocatello on the same day to give him a lateral heel wedge for his right shoe orthotics to see if that will help neutralize his foot[.]

[¶7] On June 10, Mr. Jensen saw Dr. Altenburg and his assistant, Matthew McKinlay, PA–C. Mr. McKinlay's notes state that Mr. Jensen “complains of soreness in his lateral hip that has caused him to walk with pinching toe gait and he is also starting to go over the lateral aspect of his foot.” The physical examination revealed the following:

Certainly, he does walk with his foot internally rotated and seems to thrust his weight laterally. He has marked tenderness at the greater trochanter. When his leg is relaxed in extension, he externally rotates to a neutral position and the pain resolves.

The note concluded that Mr. Jensen “has developed greater trochanteric bursitis and intoeing.” Going forward, their plan was to “get [Mr. Jensen] set up for some gait training and physical therapy focusing on externally rotating the foot and leg to get into more of a neutral alignment.”

[¶8] The day after Mr. Jensen saw Dr. Altenburg, he was scheduled for appointments with Idaho Prosthetics & Orthotics to be fitted with orthotics, and with East Idaho Interventional Pain Center. En route to those appointments, Mr. Jensen was in an automobile accident which resulted in a shattered right ankle, broken left arm, and a broken pelvis.

[¶9] Immediately before the accident, Mr. Jensen was traveling north on Highway 89. As he approached the bridge over the Salt River, the vehicle in front of him began to turn right onto Lincoln County Road 128, and Mr. Jensen slowed down to allow room for the vehicle to turn. At the hearing, Mr. Jensen testified regarding what happened next:

A. [Mr. Jensen:] Okay. There's a vehicle in front of me a quarter mile ahead of me. I'm—I'm going well under the speed limit. I put my left foot up on the clutch, pushed it in and shifted down. I needed to slow the pickup down. I put my right foot up on the brake pedal.
Q. [Counsel for Mr. Jensen:] Why are you slowing your vehicle down?
A. Just to make sure I give him enough room to make his turn.
So, I put my right foot up, my pigeon toed foot up on the pedal, and it did what it does when I walked, it rolled off the pedal and down between the gas pedal and the brake pedal. And instead of being straight it's, like I say, pigeon toed. And I reached down with my leg tried to pull it out. Couldn't get it to come.
I glanced down to see what I needed to do to get it out, and when I glanced back up, there was a bridge abutment right in front of me.
I made a hard left. I heard a bunch of crunching sound, thought I had made it out of it, and thought that maybe I just crunched in the side of my pickup was going through my head, and thinking, Oh, boy. Because it was a nice little pickup, and it was in very good shape for how old it was.
And I was thinking, Oh boy. And right at the moment I'm thinking this, boom, I'm upside down twirling on my roof, and I twirled across the road, hit the curb on the other side of the bridge, and it bounced me back to the northbound lane. That's where it spun to a stop.
Q. So during this time when this—when your vehicle crashed, where was your right foot?
A. It was in between the gas pedal and the clutch or the brake pedal, I'm sorry.

[¶10] Immediately after the accident, UPS driver John Pittman arrived on the scene and helped Mr. Jensen out of his truck. Mr. Jensen laid his head on Mr. Pittman's lap until the ambulance arrived. At that time, he also called his wife from his cell phone. Mrs. Jensen testified that he spoke to her on the phone and told her that the accident happened when his foot got lodged between the brake and gas pedals and he could not get it out.

[¶11] An ambulance transferred Mr. Jensen to the Star Valley Medical Center, and he was ultimately life-flighted to the University of Utah Hospital in Salt Lake City, Utah, where he received treatment for his injuries. The Division denied Mr. Jensen's request for worker's compensation benefits for the injuries sustained in the automobile accident. After a contested case hearing, the OAH again denied his request. Mr. Jensen appealed that decision to the Sublette County District Court, which affirmed the OAH's decision. Mr. Jensen timely filed this appeal.


[¶12] Our standard of review of a district court's review of an administrative agency's decision in worker's compensation cases is:

When an appeal is taken from a district court's review of an administrative agency's decision, we examine the case as if it had come directly from the agency without giving any deference to

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