Decision Date08 April 2005
Docket NumberNo. 04-58.,04-58.
Citation109 P.3d 520,2005 WY 40
PartiesIn the Matter of the Worker's Compensation Claim of Calvin D. PHILLIPS, Appellant (Petitioner), v. TIC — THE INDUSTRIAL COMPANY OF WYOMING, INC., Appellee (Respondent).
CourtWyoming Supreme Court

Representing Appellant: David M. Gosar, Jackson, Wyoming.

Representing Appellee: Timothy M. Stubson of Brown, Drew & Massey, LLP, Casper, Wyoming.

Before HILL, C.J., and GOLDEN, KITE, and VOIGT, JJ., and KAUTZ, D.J.

VOIGT, Justice.

[¶ 1] On June 14, 2001, Calvin D. Phillips (the appellant) injured his back in the course of his employment with The Industrial Company of Wyoming, Inc. (the appellee). The Wyoming Workers' Safety and Compensation Division (the Division) awarded the appellant temporary total disability benefits in October 2001. The appellee objected to this award and a contested case hearing ensued. The hearing examiner decided that the appellant's temporary total disability benefits should cease as of April 1, 2002, because the appellant had reached maximum medical improvement (which term may be used interchangeably with the term "ascertainable loss"). The appellant appeals from that determination. We affirm.


[¶ 2] We find the dispositive issue in this appeal to be whether the record contains substantial evidence to support the hearing examiner's finding that the appellant had an ascertainable loss by April 1, 2002.


[¶ 3] In May 2001, the appellant, age sixty, began working for the appellee near Lysite as a "millwright helper" and maintenance worker.1 On June 14, 2001, the appellant injured his lower back at work while emptying twenty-five gallons of fluid from a fifty-five gallon drum. The appellant continued to work after the injury, with some restrictions,2 until he was "laid off" on August 24, 2001.

[¶ 4] The appellant ultimately sought medical attention for back pain and left leg pain (extending downward to the knee).3 He was prescribed a conservative treatment regimen including anti-inflammatory medication, pain medication, two steroid injections,4 and physical therapy.5 According to Dr. Clayton Turner, the appellant's treating orthopedic surgeon, the appellant did not progress satisfactorily in this treatment regimen. A July 11, 2001, MRI revealed that the appellant had a "small left paracentral disc herniation arising from the L4/L5 disc, impinging upon the origin of the left L5 nerve root." On October 29, 2001, Dr. Turner performed a "surgical decompression ... partial discectomy at L4-5" to remove a portion of the disc and relieve the pressure on the nerve.

[¶ 5] According to the literature Dr. Turner provides his patients regarding surgery of this nature:

A lumbar discectomy is an operation to remove pressure on a nerve in your spine.... Removing the fragment of herniated disc material pressing on the nerve root subsequently eliminates the pressure on the nerve.
The general purpose of considering this approach is to relieve the leg pain due to an irritated nerve, usually due to a herniated disc.... It is critical that patients understand that any patient with the above-mentioned herniated disc ... actually has two underlying spinal problems. The first problem is a tear in the disc ... causing back pain. The second problem is the pressure on a nerve in your spine, which causes leg pain.
The discectomy ... allows removal of the pressure on the nerve, which nicely relieves leg pain. However, the other problem is not treated and any back pain present before the operation is likely to continue after the operation.
Most patients complain of both back and leg pain. Discectomy is a reasonable approach if the patient's primary complaint is leg pain and the patient feels that the back pain present before surgery is tolerable. If back pain itself is substantial and not tolerable then a fusion may need to be considered. The primary reason to consider a discectomy alone (to relieve leg pain only and tolerate back pain) and avoid a fusion is that the recovery from a spinal fusion is quite prolonged. Any spinal fusion requires six to nine months of recovery with considerable activity restriction, whereas recovery from a discectomy takes only four to six weeks.
Post-Laminectomy Syndrome: One possible complication is worsening of the back pain present before surgery, which is known as Post-Laminectomy Syndrome. This occurs in approximately 5-10% of patients who undergo lumbar discectomy. If worsening of back pain is substantial then a fusion operation may be necessary in the future.
Patients routinely experience a dramatic, remarkable reduction in their leg pain....
... As stated in the introduction, persistence of the back pain present before the operation is expected. Increased pain with prolonged sitting and driving is expected as well. As per the other activities described above, slowly increase your exposure to these activities and expect decreased discomfort with time.
There are no long-term restrictions with regards to recreational athletics. In general, I recommend that you develop the habit of bending at the knees and not the spine to preserve spinal function and avoid additional spinal injury at the same or another level in the years ahead. For heavy laborers, specific complex rehabilitation may be necessary and work return is variable. Return to physically demanding work that involves regular heavy lifting, bending and twisting is not recommended.

"Fusion" is defined in this literature as "growing together of the two bones surrounding an injured disc so that painful motion is stopped."

[¶ 6] The appellant reported that his left leg pain almost instantly disappeared following the discectomy. His medical records indicate that on November 7, 2001, he was "doing very well" and had "active full range of motion of his lower extremities...." The appellant was advised to avoid lifting more than twenty to thirty pounds, to avoid repetitive stooping, bending, twisting or lifting for the next four weeks, to increase his daily activities as tolerated, and to walk as much as he would like; if the appellant had minimal to no back pain six weeks after the surgery, he could resume vigorous physical activities and do whatever was within his comfort level.6

[¶ 7] The appellant stated that he felt "[g]ood, but not all the way right" after the discectomy. On December 4, 2001, medical records indicate that the appellant was "doing very well" but complained of "some increased pain in his back and across his left hip." The appellant exhibited guarded active range of motion of his back and his back was "bothersome" when he engaged in "repetitive stooping, bending, twisting to include cleaning around the house or yard." According to Dr. Turner, it is "not uncommon after discectomy type procedures that patients will experience back pain." The appellant was placed on medication and instructed to avoid repetitive stooping, bending, twisting or lifting for four weeks. The appellant reported that the medication did not help and that his pain had increased as of December 12, 2001.

[¶ 8] On December 20, 2001, the appellant still had a "deep" backache, frequent discomfort in the lower back with radiation in the left buttock, and was advised to pursue physical therapy and resume anti-inflammatory medication. Physical therapy records indicate that as of December 24, 2001, the appellant was experiencing lower back pain associated with his initial injury and all lumbar spine movements were "rachet like & non-fluid." The therapist noted decreased lumbopelvic dynamic stability, decreased lumbar spine range of motion, decreased pain with activity, increased swelling in the lumbar spine, and that Dr. Turner was "contemplating fusion" if physical therapy was not successful. The appellant was to continue physical therapy three times per week for six weeks.7

[¶ 9] On January 17, 2002, the appellant reported that he had "good" days and "bad" days, ongoing mechanical back pain, and the ratcheting effect continued. His medical records state that this was most likely "discogenic" in nature and that he was to continue the conservative treatment regimen for another month.8 The appellant's January 29 medical records note persistent back pain and intermittent right hip and thigh pain. On February 21, 2002, the appellant reported mechanical back pain and "ratcheting sensation ... when getting up" and the medical records attribute this to "ongoing discogenic back pain." The appellant was advised to continue with physical therapy and medication for another two months, although the record only reflects that the appellant attended physical therapy until March 4, 2002.9

[¶ 10] The appellant testified that his physical activity to this point varied. For the first four months or so after the discectomy, the appellant engaged in very little activity aside from walking and physical therapy. At some point, the appellant attempted housework such as the dishes, vacuuming, and cleaning. These activities apparently "caused a problem" and the appellant stated that his doctor told him "not to do that." He also tried to lift a bale of hay and "found that that was not the thing to do." The appellant's wife, Cathy Phillips, stated that the appellant was "in too much pain to do most things. And any of the outdoors chores, I always did them"; most things "required bending or lifting something, and it couldn't be done." She added that after the discectomy, the appellant used pain medication and she did not "know that... he was ever going to get better. It didn't seem like it."

[¶ 11] In March 2002, TIC hired a private investigator to surveil the appellant. The investigator summarized her observations as follows:

During a three-day surveillance of [the appellant] conducted 04/01/02-04/03/02 at his residence in Riverton, WY, investigator established that he is actively engaged in the care and light exercise of ten horses, a flock of chickens and turkeys, and

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