STATE EX REL. WYOMING WORKERS'SAFETY AND COMPENSATION DIVISION …

• Decision Date: 19 November 2004
• Docket Number: No. 03-189,03-189
• Citation: 100 P.3d 1244,2004 WY 144
• Parties: STATE OF WYOMING, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellant (Petitioner), v. MICHAEL W. PARRISH, Appellee (Claimant/Respondent).
• Court: Wyoming Supreme Court

2004 WY 144

100 P.3d 1244

STATE OF WYOMING, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellant (Petitioner), v. MICHAEL W. PARRISH, Appellee (Claimant/Respondent).

No. 03-189

Supreme Court of Wyoming. OCTOBER TERM, A.D. 2004.

November 19, 2004

Representing Appellant: Patrick J. Crank, Attorney General; John W. Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; and Alora L. Kempster, Special Assistant Attorney General.

Representing Appellee: Roger E. Shumate and Paul R. Flick of Murane & Bostwick, Casper, WY.

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

LEHMAN, Justice.

[¶1] The Wyoming Workers' Compensation Division (Division) appeals the decision of the State of Wyoming, Office of Administrative Hearings (OAH), that Michael W. Parrish's cervical and lumbosacral spine problems are injuries occurring over a substantial period of time and caused by Parrish's heavy lifting at Excal, Inc. Specifically, the Division argues that the decision of OAH is not supported by substantial evidence. Upon our review, we affirm.

ISSUES

[¶2] The Division presents these issues, with which Parrish does not disagree:

1. Was the Hearing Examiner's Order Awarding Benefits supported by substantial evidence when the medical evidence establishes that the injury resulted from the Claimant's work history prior to moving to Wyoming and working for Excal?

2. Did the Hearing Examiner err by failing to consider the evidence that indicated the Claimant developed symptoms following specific events, for which no timely claim was submitted?

FACTS

[¶3] Parrish has a long career in the foundry industry. In 1976-77, when he was about 18 years old, he was working in a machine factory as a general welder; no heavy lifting was involved. From 1977-90, Parrish worked at Acra-Cast Foundry in Los Angeles, California, where he was a general laborer, lifting up to 40 pounds hundreds to thousands of times a day. From 1979-83, still working at Acra-Cast, Parrish was washing and closing molds by hand. The molds were 15 to 30 inches off the floor and weighed from 25 to 150 pounds each. He performed this work 25 to 100 times a day. Parrish also washed sand and would carry 100-pound sand bags up a flight of stairs to the loader decks. He did this 2 to 3 times a week, lifting each month a total of 50,000 to 70,000 pounds. From 1983-90, still working at Acra-Cast, Parrish acted as the production manager, lifting pattern weights weighing from 50 to 125 pounds and walking with them a distance of about 150 feet. He also used ladle weights, weighing about 40 pounds, to dip aluminum out of the furnace and then walk with them a distance of about 150 feet to the molding line; he did this about 100 times a day for a year consistently. Parrish was further involved in welding large pump casts. This activity required moving by hand on the welding table and in the forklift forks cast weights weighing about 300 to 1000 pounds. He welded 200 pieces in a six-month time period. This work was done in addition to his normal work. From 1990-92, Parrish worked for Anderson Foundry, also in California. His work included heavy lifting; he worked with green sand molds and processed with a shovel about 15,000 to 20,000 pounds of sand a day. He also worked processing parts, lifting weights up to 150 pounds. From 1992 to April 1994, Parrish worked for Farm Bed Manufacturing in Idaho, as a general welder, often lifting up to 150 pounds.

[¶4] Parrish's foundry work caused his body to be sore all over. This soreness spanned from 1977 until the last few years. He had pain and soreness in his arms and back. He knew the pain, stiffness, and soreness was caused by the heavy work in the foundry industry. Parrish did not seek any formal medical treatment with respect to such complaints.

[¶5] In April 1994, Parrish went to work for Excal, Inc., in Casper, Wyoming. From that date to the present, he has been production manager and quality manager and has moved patterns weighing 75 to 100 pounds and has sorted castings weighing up to 30 pounds, from a few to many thousands. In early to mid-December 1994, about eight months after starting work with Excal, Parrish saw Dr. Timothy Johans in Boise, Idaho, upon a referral by Dr. William W. Holyfield. According to Dr. Johans' medical record, Parrish

was doing reasonably well until four months ago when insidiously he developed severe neck pain and subscapular pain which subsequently over the next week started to radiate all the way down his left arm into the thumb, index, and long fingers. It became increasingly severe, and he developed numbness about two months ago. He was seen and evaluated initially by Dr. Holyfield who recognized the radiculopathy and ordered an MRI scan which showed a large herniated nucleus pulposes at C6-7 on the left side. Dr. Holyfield recommended an anterior cervical diskectomy, and because the patient has family here in Boise and wanted the surgery done in Boise, Dr. Holyfield referred him to me[.]

(Emphasis added.) Dr. Johans performed the C6-7 diskectomy on December 15, 1994.

[¶6] Some years later when Parrish saw Dr. Celia Stenfors-Dacre on February 25, 2002, for an independent medical evaluation, upon a referral from Dr. Robert A. Narotzky, Dr. Stenfors-Dacre asked Parrish about his medical history. Dr. Stenfors-Dacre's report states in pertinent part that Parrish, at the time of the independent medical evaluation, "presents with cervical and lumbosacral back pain." Then, Dr. Stenfors-Dacre's report reads:

[Parrish] reports his symptoms began in approximately 1994. Prior to that he had no cervical or lumbosacral back pain, no history of injury to either area . . . . His symptoms began suddenly . . . .

(Emphasis added.) During Dr. Stenfors-Dacre's deposition, on September 24, 2002, she was asked if Parrish's 1994 complaints were entirely cervical. She testified:

[Dr. Stenfors-Dacre]: No, he reported to me he had both cervical and lumbosacral, that it wasn't specifically one more than the other, because I do recall asking him that. And I don't know that I documented that, but he reported that the cervical area under Evaluation [sic] was more painful at the time and that's why it was addressed and then subsequently operated upon.

Q. So as early as 1994 he had symptoms in both the cervical and lumbar spine he reported to you?

A. Yes, that's correct.

Shortly after this testimony, the following exchange occurred (emphasis added):

[Q.] Now, if he's starting to develop symptoms in 1994, then is it your opinion that the damage has been done to the structures of that back by the nature of the heavy lifting and the repetitiveness of that lifting by 1994?

A. I would agree that would be correct.

Q. And once this condition—I mean, is this like an injury inside of the back to the structures of the back which starts this process of the back kind of degenerating?

A. Yes, that would be correct. It can involve both the disks between the vertebral bodies as well as the vertebral bodies themselves.

Q. Did it appear to be in his case that most of the degeneration was occurring in the disk structures?

A. Yes, particularly in the—well, actually yes, both in the cervical and lumbosacral region it seemed to be more of a disk issue.

Q. And those disks form the tissues between the hard bony vertebraes, correct?

A. That is correct.

Q. And as we move and age, those disks are subjected to wear and tear; is that correct?

A. That is correct, even without the heavy lifting that does occur.

Q. And in this particular circumstance you believe that the heavy lifting contributed to that wear and tear?

A. I believe it contributed as well as hastened the process of degeneration.

Q. Can you say to a reasonable degree of medical probability that the heavy lifting caused the disk degeneration process to begin?

A. No. I believe the disk degeneration process begins from the time we're born and go onwards. However, any injury or chronic repetitive activities can hasten or cause this process to occur more rapidly.

Dr. Stanfors-Dacre formed other opinions as a result of her independent medical evaluation of Parrish (emphasis added):

A. He seemed to be suffering from both cervical and lumbosacral chronic back pain which seemed to be causing some radiculopathy, meaning that he had some residual weakness and some sensory changes, as I noted previously.

And he has had numerous—according to the medical records, numerous invasive techniques, particularly to the lumbar spine. And he does not seem to be in much improved condition despite all of the interventional work that has been done on him.

You know, he basically is, in my opinion, going to suffer from chronic cervical and low back pain because of all the changes that he has had, both from, you know, the labor side of things as well as from the interventional, which can cause scar tissue and so forth and a change in the bony architecture of the spine, both in the spine and lumbosacral regions.

Q. Do you come to any conclusions regarding the likely cause of his present back condition?

A. The conclusion would most likely be due to the fact of the chronic repetitive heavy work that he had done from the time of 1976 onward, as I noted under the vocational history, and his symptoms would be most consistent with chronic wear and tear to the spine.

Q. Did you relate his present back condition to any one specific incident?

A. I did not.

Q. Okay. I note your report says that—and I'll quote from it—has a high probability of being directly—excuse me. Let me go back and make sure I get the whole thing.

Mr. Parrish has chronic cervical and lumbosacral back pain which has a high probability of being directly correlated to his work history of chronic heavy lifting.

Could you give us the basis for that conclusion, what facts you found that would support that conclusion?

A. This was based upon the radiographic studies, the necessity of cervical surgery,

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