Leavitt v. State (In re Worker's Comp. Claim of)

Decision Date12 August 2013
Docket NumberNo. S–12–0234.,S–12–0234.
PartiesIn The Matter of the Worker's Compensation Claim of: Kristi LEAVITT, Appellant (Petitioner), v. STATE of Wyoming ex rel. WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).
CourtWyoming Supreme Court


Representing Appellant: Robert A. Nicholas, Nicholas Law Office, Cheyenne, Wyoming.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Michael Finn, Senior Assistant Attorney General; Jackson M. Engels, Assistant Attorney General.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

DAVIS, Justice.

[¶ 1] Appellant Kristi Leavitt experienced lower back pain after shoveling snow just before Christmas of 2009. She filed a claim for benefits with the Wyoming Workers' Safety and Compensation Division, contending that her pain was causally related to a compensable back injury she had suffered in 1996. The Division denied the claim, and the Office of Administrative Hearings (OAH) upheld that decision after holding a contested case hearing. The district court for the First Judicial District affirmed the OAH ruling. We affirm the district court.


[¶ 2] Leavitt raises four issues which we reorder and restate as follows:

1. Was the OAH decision contrary to law?

2. Did the hearing examiner act arbitrarily and capriciously or abuse his discretion?

3. Were the hearing examiner's findings of fact sufficient?

4. Was the OAH decision supported by substantial evidence?


[¶ 3] While working as a public information officer for the State of Wyoming's tourism office in February of 1996, Leavitt escorted ten journalists to various stops along the route of a ten-day dogsled race in western Wyoming. The trip required her to drive approximately 2,000 miles and to load and unload her passengers' heavy winter luggage at eight or nine hotels along the route. Midway through the trip, Leavitt began to experience unrelenting back pain.

[¶ 4] When she returned to Cheyenne, she sought chiropractic care for her pain. After approximately a week of unsuccessful treatment, Leavitt's chiropractor referred her to Dr. Vincent Ross, a family practitioner with a certificate of additional qualification in sports medicine. Dr. Ross provided pain medication and physical therapy. Conservative treatment by both practitioners provided Leavitt little relief, and an MRI was ordered. The study revealed a herniated disc at the L5–S1 level of the lower back. Dr. Carlton Reckling, an orthopedic surgeon, performed a partial discectomy (disc removal) and decompression on March 20, 1996.

[¶ 5] After recuperating from the surgery, Leavitt began a roughly nine-month course of post-operative rehabilitation managed by Dr. Ross and provided by his office. She experienced marked gains in strength and flexibility, as well as a marked decrease in pain and discomfort. She was soon able to adequately control her pain with Ibuprofen, even though her job duties required her to fly frequently and to travel long distances by automobile. Dr. Ross' post-surgical care of Leavitt ended on February 24, 1997.

[¶ 6] Leavitt's back required little medical attention between 1997 and 2010. She saw Dr. Ross in August of 1999 for treatment of a primary complaint unrelated to her back injury. Dr. Ross' chart for this visit is not in the record, but there is a note from Leavitt to the Division with a copy of another note written by Dr. Ross on a prescription form. Dr. Ross' note indicates that Leavitt had some low back pain on the date of the visit and needed pain medication. Leavitt's note says that Dr. Ross would not be sending a bill to the Division because he was not treating her for her back during the visit in question, but that she would like to be reimbursed for the cost of prescription Celebrex (a non-steroidal anti-inflammatory drug used to treat osteoarthritis) and Ibuprofen based on his conclusion that she needed pain medications.

[¶ 7] In 2001, Leavitt saw physical medicine and pain management specialist Dr. John Vallin in Bozeman, Montana. Dr. Vallin noted that Leavitt's gait was non-antalgic (the stance phase of her gait was not abnormally short compared to the swing phase), that her lumbar range of motion was within normal limits, and that she had excellent overall spinal range of motion. He found early spondylosis (degenerative osteoarthritis in the joints or neuroforamina of the spine) with some bone spurring at the fifth and what appeared to be sacralization of the sixth lumbar vertebrae. This was the area in which the 1996 surgery had been performed.

[¶ 8] Dr. Vallin prescribed or renewed a prescription for Celebrex, and diagnosed Leavitt with chronic mechanical low back pain without lumbar radiculopathy (compressionof spinal nerves). The bills for the 1999 and 2001 care by Drs. Ross and Vallin were the last Leavitt submitted to the Division until early in 2010.

[¶ 9] Leavitt consulted with chiropractors from April of 2007 through early December of 2009. Her complaints during this time related to popping in her left hip after sitting for long periods, achy joints that run in her family, periodic migraines, bilateral lower back stiffness, pain in the lower ball of her left foot, tightness between her shoulder blades, temporomandibular joint (jaw) pain, right elbow pain, right shoulder pain, lower back catching when bending over, bilateral pain in the buttocks and a knot in her right shoulder. She saw one chiropractor for complaints related to miscarriages as well as a variety of complaints similar to those just listed. Although according to the chiropractic records Leavitt did complain of some back pain during this time frame, she did not relate her back complaints to the 1996 work-related injury, and did not submit any of the bills for the treatment rendered to the Division.

[¶ 10] Dr. Ross continued to see Leavitt between 2005 and 2009. She was treated for knee complaints related to a cyst under a kneecap, for a ganglion cyst in the wrist, for a sore throat and cough, and for chondromalacia (inflammation of the underside of the kneecap) and arthritis in both knees. Although the medical records for the treatment rendered during this time frame are not in the administrative record, Dr. Ross' deposition testimony does not reflect any complaints of back pain during these visits.

[¶ 11] Leavitt began to experience significant lower back pain after shoveling snow on December 22, 2009, and she therefore made an appointment with Dr. Ross on December 31 of that year. On examination, he found spasm in the lumbar area and diagnosed a lumbar strain. His records reflect his conclusion that Leavitt's pain at the time was just a “continuation” of her 1996 injury rather than the result of shoveling snow. Dr. Ross's notes for that visit do not indicate that the pain began when Leavitt was shoveling snow, although they indicate that her chief complaint was that she had “reaggravated” her back. Dr. Ross did not order any radiographic studies. Leavitt was subsequently treated with physical therapy provided by a therapist employed by Dr. Ross' office, and she also received some chiropractic treatment.

[¶ 12] Leavitt attempted to reopen her 1996 worker's compensation case to obtain payment for treatment of her recent back pain. The Division declined to reopen the case and denied her claim for benefits under Wyo. Stat. Ann. § 27–14–605 (LexisNexis 2013) because more than four years had elapsed since she last sought benefits for her 1996 injury, and because she had failed to show that her current “lumbar sprain and muscle spasm due to shoveling snow” was directly related to the 1996 injury. Leavitt timely requested and received a hearing before the Office of Administrative Hearings.

[¶ 13] The hearing examiner assigned by the OAH received Leavitt's testimony, medical records selected by the parties, and Dr. Ross' testimony by deposition. He found that Leavitt's original injury involved orthopedic and/or neurological issues, and he noted that Dr. Ross' credentials did not include expertise in those specialties The examiner found it significant that Dr. Ross did not seem to be aware of Leavitt's extensive history of chiropractic treatment between her recovery from the work-related injury and the snow-shoveling incident, and that few complaints of back pain were reflected in that record. He also noted that Dr. Ross had not treated Leavitt for back pain between 1999 and the end of 2009. The hearing examiner observed that Dr. Ross ordered no objective diagnostic tests to isolate the source of Leavitt's back pain after the snow-shoveling incident. He also found Dr. Ross' testimony to be generally equivocal and unresponsive.

[¶ 14] The examiner determined that the record contained evidence of other causes of back pain besides aggravation of the original compensable injury. He concluded that the medical testimony established that arthritis not shown to be related to the original compensable injury may have played a role, and that shoveling snow often results in back pain even in those without any significant back problems. He found that Dr. Ross was speculating when he opined that Leavitt's current back problems were related to her compensable workplace injury in 1996 based upon the absence of any meaningful diagnostic information and the absence of testimony which ruled out possible alternative causes.

[¶ 15] The hearing examiner ultimately concluded that Leavitt had not carried her burden of proving by a preponderance of the evidence that the pain experienced after shoveling snow in 2009 was causally related to the thirteen-year-old injury. He therefore upheld the Division's denial of benefits.

[¶ 16] Leavitt then petitioned the district court for review of the OAH decision. Although that court took issue with some of the hearing examiner's findings relating to Dr. Ross' credibility, it concluded that his decision to disregard much of Dr. Ross' medical testimony was supported by the record....

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