Worker's Comp. Claim of Marshall S. Little v. State

• Decision Date: 22 August 2013
• Docket Number: No. S–12–0268.,S–12–0268.
• Citation: 308 P.3d 832
• Parties: In the Matter of the Worker's Compensation Claim of Marshall S. LITTLE, Appellant (Petitioner), v. STATE of Wyoming ex rel. DEPARTMENT OF WORKFORCE SERVICES, WORKERS' COMPENSATION DIVISION, Appellee (Respondent).
• Court: Wyoming Supreme Court

308 P.3d 832

In the Matter of the Worker's Compensation Claim of Marshall S. LITTLE, Appellant (Petitioner),

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

No. S–12–0268.

Supreme Court of Wyoming.

Aug. 22, 2013.

Representing Appellant: Donna D. Domonkos, Attorney at Law, Cheyenne, Wyoming.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Michael T. Kahler, Senior Assistant Attorney General.

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

DAVIS, Justice.

[¶ 1] Appellant Marshall S. Little suffered a lower back injury when he was drawn into a mixing chute of a hot mix plant used by the paving company he worked for in 1988. He underwent a lumbar surgery in 1989. His condition improved in the early 1990s, and he did not require treatment for his back injury for several years. In 2007, he began seeing an internist, who diagnosed him with an arthritic hip and recommended a hip replacement. Mr. Little submitted a bill for $87.00 for the office visit to the Wyoming Workers' Safety and Compensation Division (the Division).

[¶ 2] The Division declined to pay the bill because it believed the hip condition to be unrelated to the original work injury. Mr. Little objected and requested a contested case hearing before the Office of Administrative Hearings (OAH). The OAH hearing examiner found that Mr. Little was not entitled to benefits for a second compensable injury, relying on an orthopedic surgeon's evaluation that the arthritic hip was not related to the original compensable injury. The district court affirmed, and we likewise affirm, finding that substantial evidence supports the hearing examiner's findings and conclusions in a case involving conflicting expert opinions.

ISSUE

[¶ 3] Does substantial evidence support the hearing examiner's decision that Mr. Little was not entitled to benefits for a second compensable hip injury?

FACTS

[¶ 4] Mr. Little sustained a compensable injury to his lower back and neck on June 8, 1988. He worked for Cundy Asphalt & Paving Inc. in Gillette, and he was attempting to repair the conveyor belt on a hot mix plant. A co-worker accidentally turned the conveyor belt on, and Mr. Little was drawn backwards into an 18 x 24 inch chute and literally folded in half. He filed a claim for worker's compensation benefits and began a course of treatment with two orthopedic surgeons, Dr. Gerald Baker of Gillette Bone & Joint Clinic and Dr. Robert Snider of Orthopedic Surgeons, P.S.C. in Billings, Montana.

[¶ 5] The medical records reflecting treatment of Little's initial injury are incomplete, but we can glean the following from what we have. Dr. Baker treated Mr. Little from the date of his accident for about two months. Dr. Baker believed that Mr. Little had suffered a mild to moderate musculo-ligamentous strain of his lumbar spine, and treated him with muscle relaxants, pain medications, and physical therapy.

[¶ 6] Dr. Snider first saw Mr. Little about two months after his accident. His initial clinical impression was that Mr. Little had suffered a lower back sprain and that he had anatomic spinal stenosis or narrowing of the spinal canal at the L3–4 and L4–5 levels of the lumbar spine based on a CT scan ordered by Dr. Baker. He was not certain that Little was suffering from symptoms caused by compression of the spinal nerves due to the stenosis.

[¶ 7] Mr. Little reported difficulty walking, as well as pain and numbness in his right leg and thighs. However, a functional capacity evaluation ordered by Dr. Snider and performed by a physical therapist in December of 1988 concluded that Mr. Little's overall pain level did not correlate with his observed capabilities in testing. The evaluation also found poor effort, shaking, and symptom magnification. Dr. Snider's clinic notes from 1988 and 1989 likewise indicated that Mr. Little had “markedly exaggerated responses” to certain testing maneuvers, that he seemed to exaggerate his symptoms at various times during office visits, and that his complaints of pain were anatomically suspect based on the distribution of his perceived pain.

[¶ 8] The medical records indicate that Dr. Snider remained unconvinced for a time that Mr. Little had suffered any injury other than a sprain, which did not require surgical intervention. However, in January of 1989, Dr. Snider evidently changed his mind and on February 15, 1989, a decompressive laminectomy at the L3–L4 and L4–L5 level was performed on Mr. Little. ¹ The operative report for that surgery is not in the record, but a laminectomy generally removes a portion of a vertebrae called the lamina to relieve pressure on spinal nerves. See Stedman's Medical Dictionary 964 (2000). Mr. Little testified that he had a second back surgery after the laminectomy, but we have no records of that procedure.

[¶ 9] Following the surgery, Mr. Little continued to report persistent pain and discomfort in his lower back, buttocks, and right thigh. However, Dr. Snider's post-operative notes indicated that a magnetic resonance imaging study “looks fairly good,” and that “he is doing really pretty well.” Dr. Snider also noted that Mr. Little continued to display exaggerated responses.

[¶ 10] Dr. James Lovitt, another orthopedic surgeon with Dr. Snider's practice, performed a comprehensive physical exam in August of 1989, and found as follows:

Overall ... he had no motor function loss with determined testing. Sensory exam revealed paresthesia production [a sensation of numbness or tingling in the skin] in the medial leg below the knees and the dorsal feet. Otherwise, sensory exam was unremarkable. Indirect straight leg raising is unremarkable. Hamstrings are right. Supine straight leg raising produces no symptoms.... Looking for motor point tenderness in the calves elicited some “tenderness in my calves”, however this is not really impressive.... There is no atrophy.... Hips and SI joints unremarkable.

[¶ 11] Dr. Lovitt concluded that Mr. Little “has a plethora of nonorganic findings and an abnormal pain diagram suggestive of an associated perceptual disorder.” He recommended a lower back brace and believed Mr. Little could benefit from vocational rehabilitation which would train him for lighter duty work.

[¶ 12] Mr. Little reached maximum medical improvement in September of 1990 and received a 27% whole body impairment award for his lower back injury shortly thereafter. The record does not reflect any medical treatment for nearly seven years. However, from March of 1997 through December of 2000, his orthopedists noted several complaints of neck pain, lower back pain, difficulty walking, and pain in his right leg. Their overall clinical impression was of cervical spondylosis² and severe degenerative disc disease at the L4–L5 level of the lower back. A physical examination indicated normal reflexes at the knee level, but also a “giving way type of resistance in the lower extremities” during strength testing.

[¶ 13] Mr. Little began seeing Dr. Kirtikumar Patel in July of 2003. Dr. Patel is board-certified in internal medicine rather than orthopedics. Dr. Patel initially noted as follows:

No obvious muscle wasting.... Straight leg raising testing would increase the pain in the low back. Internal and external rotation of the hip joint was normal. Movements of the knees and the ankles were normal. The patient had significant pain the low back and the paraspinal muscles. The patient had a difficult time standing on one foot at a time. Gait was very slow and deliberate, trying to fail with the right side.

Dr. Patel noted complaints of right leg pain in February of 2006, along with difficulty with walking and driving long distances. However, Dr. Patel also reported that hip and knee movements were normal bilaterally, and that Mr. Little's gait was normal.

[¶ 14] In January of 2007, Dr. Patel diagnosed “developing problems in the right hip area and possible osteoarthritis.” X-rays of Mr. Little's right hip were taken, and the radiologist who read them reported “[d]egenerative changes of the hip joints as noted, right greater than left.” Dr. Patel's review of the x-rays also indicated “osteoarthritis, more on the right than the left.” ³

[¶ 15] Mr. Little was admitted to the Campbell County Memorial Hospital for hip pain in April of 2009. X-rays were taken, and the radiologist's report indicated the following:

FINDINGS: AP view of the pelvis is compared with a prior examination from February 2007. There are now more advanced arthritic changes of the right hip joint and buttressing of the femoral neck when compared to that study.... Mild to moderate degenerative changes of the left hip joint are noted as well and are stable to slightly more prominent.

...

IMPRESSION:

1. Degenerative changes in the lower lumbar spine, and pronounced arthritic changes of the right hip, progressing from 2007 study, as well as mild to moderate arthritic changes of the left hip.

Following a physical examination and review of x-rays, an emergency room physician noted “back and right lower extremity pain, greater than left lower extremity pain with degenerative changes....”

[¶ 16] In February of 2008, Dr. Patel reported that “the patient has also developed significant osteoarthritis, probably because of overcompensation.... He may eventually need a total hip replacement.” A progress note from March of 2009 likewise indicated that Mr. Little complained of right leg pain, and that he walked with “a wobbly gait favoring the right leg.” However, Dr. Patel also noted that Mr. Little was able to stand without difficulty, and that his right hip, knee, and ankle had normal stability.

[¶ 17] Mr. Little returned for another visit with Dr. Patel on February 11, 2010. Dr. Patel's notes from that visit indicated decreased stability, restricted range of motion, and tenderness to...