McMasters v. State ex rel. Wyoming Workers' Safety & Comp. Div.

• Decision Date: 02 March 2012
• Docket Number: No. S–11–0107.,S–11–0107.
• Citation: 271 P.3d 422,2012 WY 32
• Parties: In the Matter of the Worker's Compensation Claim of Jimmie McMASTERS, Appellant (Petitioner), v. STATE OF WYOMING ex rel. WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).
• Court: Wyoming Supreme Court

2012 WY 32

271 P.3d 422

In the Matter of the Worker's Compensation Claim of Jimmie McMASTERS, Appellant (Petitioner),

v.STATE OF WYOMING ex rel. WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).

No. S–11–0107.

Supreme Court of Wyoming.

March 2, 2012.

Representing Appellant: Robert Nicholas of Nicholas & Crank, P.C., Cheyenne, Wyoming.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General; Kelly Roseberry, Assistant Attorney General.

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

GOLDEN, Justice.

[¶ 1] In 2003, Jimmie McMasters (McMasters) was working as a heating, ventilation and air conditioning (HVAC) journeyman when he fell nine feet from a beam to a concrete floor and suffered a compression fracture to his L1 vertebrae. In 2008, McMasters applied for permanent total disability benefits claiming a total disability under the “odd lot” doctrine. The Wyoming Workers' Safety and Compensation Division (Division) denied the application.

[¶ 2] The Division did not dispute that McMasters could not return to work as an HVAC journeyman but instead contended that his failure to obtain alternative employment was due to a preexisting psychological condition and a poor effort to find work. The Medical Commission agreed and upheld the denial of benefits. On appeal, the district court found the Commission's decision to be supported by substantial evidence and affirmed.

[¶ 3] We reverse. McMasters established a prima facie case under the odd lot doctrine when he showed he could not return to his former employment and the combination of his psychological and physical conditions precluded alternative employment. The burden thereafter shifted to the Division to show that light work of a special nature, which McMasters could perform, was available. The Division did not meet its burden.

ISSUE

[¶ 4] McMasters presents the following issue on appeal:

Did the Panel err, as a matter of law, in concluding that Mr. McMasters failed to meet his burden in establishing that he is Permanently Totally Disabled?

FACTS

[¶ 5] In the eleven years before his work injury, McMasters worked primarily in construction. Four of those years were as an HVAC apprentice. After he completed his apprenticeship, he worked two years as an HVAC journeyman, which is the position he held when he suffered his work injury.

[¶ 6] On April 17, 2003, McMasters was working for the Casper Tin Shop, installing duct work through a vaulted ceiling at the Childhood Development Center in Casper, Wyoming. The task required McMasters to stand and move about on two-inch wide trusses. He lost his footing and fell approximately nine feet to the concrete floor below, landing on his tailbone. McMasters was unable to get up and was taken by ambulance to the Wyoming Medical Center. What followed were years of treatment and evaluation by numerous medical providers and specialists, and ultimately McMasters' application for permanent total disability benefits.

2003

[¶ 7] Dr. Joseph Sramek treated McMasters at the hospital and recorded the following assessment of McMasters' injury and treatment:

The patient had a fall on the job with an L[1] compression fracture. He has no canal compromise from this. It is a 20% compression fracture. I believe this one can be treated conservatively in a brace with close followup and imaging studies. In all likelihood, he will be out of work at least for 6 to 8 weeks while he wears this brace, unless they can find sedentary work for him. Hank Osborne from High Plains Orthoprosthetics has been consulted to fit him for a Jewett brace. If he gets this in the morning, we can start to have him ambulate with physical therapy to see if he tolerates it. In the meantime, we will provide adequate pain control and he can be discharged tomorrow if he is able to ambulate well with the brace. We will set up additional followup for him on an outpatient basis.

[¶ 8] On May 5, 2003, McMasters had his first follow-up appointment with Dr. Sramek's office. The notes from that visit included the following assessment and plan:

Overall, it appears the patient's low back pain has improved considerably since his hospital discharge. No evidence of fracture progression is seen on radiographic studies and his neurologic examination remains intact.

At this time, we have recommended that he will continue the utilization of the Jewett bracing system for an additional 2 months. He will return in approximately 6–8 weeks for a follow-up visit to include repeat AP/lateral thoracolumbar x-rays centered at L1.

For pain control he will continue his current dosing of Lortab 7.5 mg to be dosed as 1–2 PO Q 6 hrs. PRN pain.

I have completed a work restriction form, which limits his return to work activities until 07/01/2003.

[¶ 9] McMasters had a second follow-up appointment with Dr. Sramek's office on June 11, 2003. McMasters reported an increase in low back pain and low back spasm, which Robert Griffin, Dr. Sramek's PA, attributed to immobilization, “as well as a change in both the static and dynamic positions of the spine.” McMasters was instructed to wear his Jewett brace for another four to six weeks and was advised that when the brace was removed, he would be enrolled in physical therapy.

[¶ 10] On July 10, 2003, McMasters had a third follow-up examination with Dr. Sramek's office. The entries from that visit indicate that McMasters was improving and reported a decrease in back pain from his last visit. McMasters was instructed to stop wearing the Jewett brace and to begin an eight-week physical therapy program. He was again restricted from working during that period.

[¶ 11] On September 8, 2003, McMasters again saw PA Robert Griffin. During that examination, McMasters reported significant improvement in his lower back pain as well as in his lumbar spine range of motion. Griffin made the following entry in the chart for a plan going forward:

Prior to returning the patient to work activities, I would like to have him undergo a physical capacity evaluation and possible disability rating with Dr. Zondag. This will be scheduled sometime in the next 3–4 weeks. At this time we have restricted the patient's return to work status until 10/15/2003. Dr. Zondag may wish to amend our current return to work plan based on his evaluation.

[¶ 12] On October 6, 2003, Robert Griffin reviewed additional films that had been taken of McMasters' spine. He made the following observation:

Comparison is made to previous studies on 05/05/2003. Evidence of L1 compression fracture is again seen. Anterior wedging is approximately 25–30%. This appears to have slightly increased when compared with the previous study. More sclerosis is noted about the fracture margins, suggesting adequate healing. No additional abnormalities are seen.

[¶ 13] On November 3, 2003, at the request of the Division, Dr. Tuenis D. Zondag examined McMasters for the purpose of providing an Independent Medical Evaluation (IME) and impairment rating. Dr. Zondag diagnosed a compression fracture at L1 with 30–40% compression. He noted that McMasters' “subjective complaints are consistent with the objective findings,” and “[s]ymptom magnification behavior was not evident.” Dr. Zondag found McMasters had reached maximum medical improvement and calculated a 5% whole body permanent impairment. Dr. Zondag also found that McMasters could return to work in a heavy work occupation.

2004

[¶ 14] In early 2004, McMasters attempted to return to work for his employer, Casper Tin Shop, but his employer had not held his position. McMasters then went to work for Sheet Metal Specialties, another Casper company. On his first day back to work, McMasters aggravated his back injury carrying tools up a ladder. McMasters worked for two weeks before quitting due to back pain.

[¶ 15] On April 2, 2004, McMasters saw Dr. Sramek for his back pain. Dr. Sramek made the following entries in McMasters' chart:

ASSESSMENT:

Patient has axial back pain at the level of his fracture. I suspect the fracture is still playing a role.

PLAN:

I am going to get a MRI with stir sequences. In addition I am going to get some plain x-rays of his back including flexion/extension and I am going to also try to reopen his case with Workers' Compensation as I think the fracture is impairing him from returning to his previous line of work. I will have him follow-up with me after the studies.

I have also given him some samples of Celebrex and a prescription for Skelaxin 800 mg QHS. I think he should stay off work for now until we get his pain issues further resolved.

[¶ 16] On April 19, 2004, Dr. Sramek reviewed an MRI of McMasters' lumbar spine. He observed possible edema at the fracture site and a disc herniation at the L5–S1 level. He noted none of McMasters' symptoms related to the L5–S1 herniation. Dr. Sramek referred McMasters for a vertebroplasty, a procedure in which bone cement is injected into the problematic disc to solidify the vertebrae. McMasters underwent the vertebroplasty procedure on May 20, 2004. He reported temporary relief from the procedure but then his pain worsened.

[¶ 17] On August 3, 2004, on referral from Dr. Sramek, McMasters saw Dr. Zondag for an occupational medicine and vocational rehabilitation consultation. Dr. Zondag noted that “persistent changes in the MRI prompted Dr. Sramek to encourage Mr. McMasters to consider an alternate job or retraining.” Dr. Zondag concluded:

I indicated to Jimmy that given his history and the requirement for vertebroplasty that he is not capable of returning to full HVAC work.

I feel that in an alternate job he will have to stay away from being in a bent position for long periods of time and stay away from twisting. His lift capacity is best within the light to light medium type of physical work capacity based upon Department of Labor Standards.

He reports now that he can...