Stevens v. State ex rel. Dep't of Workforce Servs., Workers' Safety & Comp. Div.

• Decision Date: 02 December 2014
• Docket Number: No. S–14–0076.,S–14–0076.
• Citation: 338 P.3d 921,2014 WY 153
• Parties: In the Matter of the Worker's Compensation Claim of: Phylis STEVENS, Appellant (Petitioner), v. STATE of Wyoming, ex rel., DEPARTMENT OF WORKFORCE SERVICES, WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).
• Court: Wyoming Supreme Court

338 P.3d 921

2014 WY 153

In the Matter of the Worker's Compensation Claim of: Phylis STEVENS, Appellant (Petitioner)

v.STATE of Wyoming, ex rel., DEPARTMENT OF WORKFORCE SERVICES, WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).

No. S–14–0076.

Supreme Court of Wyoming.

Dec. 2, 2014.

Representing Appellant: F. Gaston Gosar of F. Gaston Gosar, P.C., Pinedale, Wyoming.

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

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

Opinion

FOX, Justice.

[¶ 1] The Wyoming Department of Workforce Services, Workers' Safety and Compensation Division (Division) determined that Phylis Stevens' avascular necrosis

(AVN) in her right hip was not caused by her October 2010 slip and fall at work, and denied her claim for medical treatment of the AVN. After a contested case hearing, the hearing examiner for the Office of Administrative Hearings (OAH) agreed with the Division that Mrs. Stevens' right hip AVN was not caused by her fall at work. The district court affirmed the decision, and Mrs. Stevens appealed. We affirm.

ISSUES

[¶ 2] 1. Was there substantial evidence to support the hearing examiner's determination that Mrs. Stevens' fall did not cause the avascular necrosis

in her right hip?

2. The hearing examiner concluded that the absence of evidence of disease prior to the work-related injury and the presence of the disease afterwards was not sufficient to establish a causal link. Was that conclusion in accordance with the law?

FACTS

[¶ 3] On October 25, 2010, Phylis Stevens slipped and fell down a flight of stairs outside of her workplace, the Pinedale Aquatic Center (PAC). Mrs. Stevens crawled back into the PAC where she was assisted by several of her co-workers.

[¶ 4] Shortly thereafter, her husband transported her to the Pinedale Medical Clinic. At the clinic, Mrs. Stevens was seen by a physician's assistant who diagnosed fractures to her fourth finger and fifth metacarpal in her left hand. According to Mrs. Stevens' intake form, she was ambulatory on arrival, her “chief complaint” was pain in her left hand, and she denied any other injuries from the fall. She was referred to Teton Orthopedics for surgery on her hand.

[¶ 5] The following day, Dr. Peter Rork of Teton Orthopedics saw Mrs. Stevens, took x-rays, and performed surgery to repair her fractured hand. Her pain assessment chart indicated pain in her left hand and arm only. She was discharged with pain medication, and over the next several months, Mrs. Stevens returned to Dr. Rork to monitor the recovery of her hand.

[¶ 6] Julie Huntley, PAC Director, met with Mrs. Stevens two days after the fall to fill out a Wyoming Report of Injury. The report contains no indication that Mrs. Stevens injured her hip

in the fall or was suffering from any hip pain at the time of the report.

[¶ 7] On October 29, 2010, Mrs. Stevens returned to work for the PAC Halloween festivities. At that time she felt soreness in her right hip, but she thought it would go away.

[¶ 8] On November 2, 2010, Mrs. Stevens followed up with Dr. Rork. Dr. Rork's notes from that visit indicate that her hand was healing well, and he would follow up with her in three weeks. There is no mention of any other medical problems in Dr. Rork's notes.

[¶ 9] On November 10, 2010, the Division issued its Final Determination of Compensability, in which it found Mrs. Stevens' hand injury compensable.

[¶ 10] On November 29, 2010, Mrs. Stevens again followed up with Dr. Rork at Teton Orthopedics, who determined her hand was healing well. At the conclusion of the visit with Dr. Rork, Mrs. Stevens mentioned for the first time the soreness in her right hip. Dr. Rork thought she had developed bursitis

in her right hip and prescribed an anti-inflammatory for relief.

[¶ 11] Mrs. Stevens' next visit with Dr. Rork was on December 23, 2010. At that time, Dr. Rork noted her hand wounds

were clear, she was nontender, with increasing range of motion, and he would follow up in one month. There is no mention of Mrs. Stevens' hip in Dr. Rork's record of the visit.

[¶ 12] On January 13, 2011, approximately two and one-half months after her fall, Mrs. Stevens visited the Pinedale Medical Clinic, complaining of pain in her right hip. During the visit, x-rays were taken of both her hips, and no abnormal findings were detected. She was diagnosed with a possible tendon tear or bursitis

in the right hip and scheduled for an MRI.

[¶ 13] On January 17, 2011, Mrs. Stevens obtained an MRI of her hips

. The radiologist's interpretation of the MRI was as follows:

1. Bilateral degenerative changes of the hips, right greater than left.

2. Heterogeneous signal noted within femoral head and femoral neck. This most likely represents reactive stress edema; however, this could be a very atypical appearance of avascular necrosis

.

3. Edema within the obturator

femoris muscle with probable tear of the superior fibers at the pubic ramus origin.

4. Joint effusion

.

That day, interpreting the results of the MRI, Dr. Rork diagnosed Mrs. Stevens with AVN in the femoral head of her right hip. (AVN is the death of a bone due to lack of blood supply.) Dr. Rork noted, “This is probably a post-traumatic event related to the slip and fall accident of 10/26/10 [sic]. I am going to put her on crutches. We will see her back for follow up in 6 weeks[.]”

[¶ 14] At her February 28, 2011, follow-up, Dr. Rork's notes indicate, “[Mrs. Stevens] was complaining of hip pain that occurred at the time of the initial injury, this was probably overshadowed by the pain in her left hand. What has occurred is that she has gone on to an AVN which may or may not require surgical intervention.”

[¶ 15] On April 25, 2011, another MRI was taken of Mrs. Stevens' hips. The radiologist's report from this MRI provided the following interpretation:

1. The extent of marrow signal alteration on the right side is similar to the prior study although a more characteristic zone of signal alteration contained within a broader area of marrow edema in the right femoral head is more apparent. These findings suggest the presence of avascular necrosis

of the right femoral head. There is evidence for arthritic change about the right hip joint and a hip effusion.

2. On the left hip, there is evidence for degenerative arthritic changes and evidence for a left hip effusion

. Signal alternations in the femoral head have progressed ... since the prior study.... Some component of avascular necrosis is possible although ... signal changes of the avascular necrosis are more apparent on the right side than the left. Again, however, signal alterations diffusely in the left femoral head have progressed since the prior exam.

[¶ 16] Dr. Rork's April 25 notes indicate, “[Mrs. Stevens] states that her hip is feeling better.” However, regarding the MRI, Dr. Rork noted, “shows fracture of the femoral head [on right hip] with some mild degenerative changes in the left hip.” Dr. Rork decided to take her off the crutches and start her on water therapy. Eventually, the femoral head on her right hip collapsed due to the AVN progression, and on December 14, 2011, Mrs. Stevens received a total right hip replacement.

[¶ 17] On February 18 and March 1, 2011, the Division issued its Final Determinations, denying all payments for Mrs. Stevens' hip-related treatment based on the conclusion that “the right hip is not related to the original work injury to the left hand[.]” Mrs. Stevens timely requested a contested case hearing, which was held December 7, 2012.¹

[¶ 18] At the hearing, three of Mrs. Stevens' colleagues from the PAC testified on her behalf: Charlotte Keyser, Ellen Ramsey, and Julie Huntley. There were no eyewitnesses to Mrs. Stevens' fall and she could not remember exactly how she fell down the concrete stairs, other than she slipped, twisted or turned in the fall, and ended up with her left hand tangled up on the railing and her lower body straddling the last few steps. She crawled up the stairs, pushed the handicap button to open the doors, and crawled into the foyer of the PAC. Once inside, she began screaming for help, and the evening custodian, Charlotte Keyser, responded.

[¶ 19] Ms. Keyser found Mrs. Stevens lying in the fetal position in the PAC foyer crying for help. On direct examination at the contested case hearing, Ms. Keyser was asked to testify as to what Mrs. Stevens reported to her about the fall, to which she responded “Oh gosh, I don't remember.” Later in her testimony, Ms. Keyser reported that Mrs. Stevens was clutching her wrist and also indicated that she hurt her right hip in the fall. Ms. Keyser further testified, “I was more concerned about her wrist, because that's what looked—visually, that's where the problem was.” After assisting Mrs. Stevens into a seated position inside the main area of the PAC, fellow PAC employees Sue Phlughoft² and Ellen Ramsey took over her care.

[¶ 20] Ellen Ramsey testified that she first saw Mrs. Stevens at a table in the PAC lobby shortly after she fell and she approached to see if she could help. Ms. Ramsey testified that she remembered Mrs. Stevens sitting on a table by the lobby doors, and “she was screaming in pain.” In response to Ms. Phlughoft's question if she was hurt elsewhere, Ms. Ramsey remembered Mrs. Stevens telling Ms. Phlughoft that her hip was hurting and then making a head gesture toward her right side. On cross examination, Ms. Ramsey indicated that in a conversation two weeks after the fall, Mrs. Stevens talked about her wrist injury

, did not talk about any hip pain, and was not limping. Ms. Ramsey did testify that approximately four weeks later Mrs. Stevens was limping and mentioned her hip pain to Ms. Ramsey in conversation.

[¶ 21] Julie Huntley recounted her interactions with Mrs. Stevens after the fall, specifically, meeting her two days later to fill out the Wyoming...