Clark v. STATE EX REL. WORK. SAF. AND COMP. DIV.

2001 WY 132, 36 P.3d 1145
CourtWyoming Supreme Court
DecidedDecember 21, 2001
Docket01-26
StatusPublished

This text of 2001 WY 132 (Clark v. STATE EX REL. WORK. SAF. AND COMP. DIV.) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. STATE EX REL. WORK. SAF. AND COMP. DIV., 2001 WY 132, 36 P.3d 1145 (Wyo. 2001).

Opinion

36 P.3d 1145 (2001)
2001 WY 132

Henry CLARK, Appellant (Petitioner),
v.
STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).

No. 01-26.

Supreme Court of Wyoming.

December 21, 2001.

*1146 Donald L. Painter, Casper, WY, Representing Appellant.

Gay Woodhouse, Attorney General; Gerald W. Laska, Senior Assistant Attorney General; and David L. Delicath, Assistant Attorney General, Cheyenne, WY, Representing Appellee.

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

VOIGT, Justice.

[¶ 1] In February 1999, appellant, Henry Clark, was injured in a work-related accident. The Wyoming Workers' Safety and Compensation Division (the Division) paid appellant benefits for an injury to his left foot, but denied benefits for a claimed back injury. Following a hearing, the hearing examiner found that appellant was not a credible witness, that any back injury was pre-existing at the time of appellant's accident, and that appellant failed to prove that his employment materially aggravated such injury. Appellant petitioned the district court to review the hearing examiner's findings. In a December 2000, order, the district court affirmed the hearing examiner's determination and this appeal followed. We affirm.

ISSUE

[¶ 2] Appellant raises a single issue on appeal:

Whether the evidence and law support the Hearing Examiner's finding that Appellant's back condition was due to a pre-existing condition that began before this employment and that there had been no material aggravation of that pre-existing condition resulting in a new injury.

The Division, as appellee, phrases the issue in substantially the same manner.

FACTS

[¶ 3] Appellant began his employment with Western Technology Services, Inc. (WOTCO) in 1974. In February 1999, appellant was employed as a saw operator; as *1147 such, he carried twenty-foot long steel "bar stock," weighing approximately 210 pounds, from its rack to a saw two hundred feet or so away. He then used the saw to cut the bar stock to a specified length. Appellant testified that at 8:00 a.m. on February 22, 1999, as he reached down to grab the last bar, the "bar came right back off that balance point, right down on my foot." Appellant claimed that he then fell backwards or "stacked up" onto his "posterior" and then his back, and landed on some steel plates, where he lost his hard hat. After lying on the ground for five minutes, appellant slowly "got up" and called the foreman. His foot was red, but "not bruised. It wasn't broke and it wasn't bleeding." He experienced "excruciating" left leg pain, but no back pain. According to appellant, he had experienced right leg pain for a year prior to February 22, 1999, but not pain in his left leg.

[¶ 4] Appellant filled out an accident report dated March 1, 1999, stating that the "bar rolled off the rack and bounced off my left foot," but did not mention falling on his posterior or back. Appellant testified that he did not "put it down" because he did "a lot of falling backwards" and, despite including the term "over" and continuing his handwritten account on an additional sheet of paper that remained three-quarters blank, claimed not to have had "enough space to write all that story in there." The report also states that appellant experienced pain in the back of his left leg and, toward the end of the day, the small of appellant's back began to hurt and he could "barely walk."

[¶ 5] Appellant's treating physician was Dr. Johnny Tooke. Dr. Tooke's September, October, and November 1994 records indicate that appellant was experiencing left knee and left leg pain. His February 4, 1998, and February 2 and 12, 1999, notations state appellant had cramps in his "legs." The records note that appellant was seen February 22, 1999,[1] for back pain and further indicate that on February 26, 1999, appellant complained of periodic "sciatica" down the left leg and back pain, was unable to bend over, and could "hardly walk." Appellant was scheduled to undergo a lumbar spine MRI on March 4, 1999. It was not until March 12, 1999, that Dr. Tooke's records note appellant's accident at work, stating that appellant continued to experience leg pain with "lifting minimum weight," refer to a "disc prob in Back" and that appellant "picked up heavy Bar @ work & that was when Back began working." Dr. Tooke referred appellant to Dr. Robert Narotzky, a neurosurgeon.

[¶ 6] Appellant saw Dr. Narotzky on March 17, 1999. Dr. Narotzky noted in the "history" section of his dictation that appellant was referred for

evaluation of left leg pain. He has had difficulty for the past year. This began while he was at work at WOTCO, Inc. when he was lifting steel bars. These weigh anywhere from 2 pounds to close to 100 pounds. He has continued with pain that radiates from his lower back into his left buttock, posterior thigh and calf.

The doctor testified in a deposition that he understood "difficulty for the past year" to mean that appellant had experienced lower back and "leg" symptoms for the prior year. According to Dr. Narotzky, appellant did not mention falling onto his posterior or back after the bar fell on his left foot.

[¶ 7] After reviewing the findings from the MRI and a subsequent myelogram, Dr. Narotzky ultimately opined that appellant suffered from stenosis (narrowing of the spinal canal) at the L4-5 and "L6-S1" level, as well as a disk protrusion at the L5-6 level. According to the doctor, the stenosis was caused by degenerative conditions such as normal wear and tear, arthritis in appellant's back, and thickening ligaments, in conjunction with the protruding disk. Dr. Narotzky further testified as follows:

Q. [Appellant's counsel] Okay. I'm going to give you a hypothetical set of facts here for these next couple questions. Mr. *1148 Clark tells me that he had not had any previous injury or problem with his low back until February of this year, when he—and it was at the steel mill where he works, the fabrication shop. And a steel bar fell toward him, and in an effort to get himself out of the way, he fell backward on his butt. And from then on, he had the symptoms that he reported to you.
With that history, do you have an opinion on the relationship, if any, between the fall as I've described it to you and the surgical—the condition for which you did the surgery in March—or May? I'm sorry.
A. I don't think the fall caused the degenerative problems in his low back. I think it may well have caused the disk protrusion which, combined with the degenerative changes, resulted in spinal stenosis.
Q. Okay. Is there any particular cause for stenosis, or is that just one of the degenerative changes you're talking about?
A. It's wear and tear changes. But other things can contribute to it, like a disk protrusion.
Q. When you—in any of the times you've met with or taken care of Mr. Clark, have you seen any evidence that any of this low back problem was pre-existing as far as—and I know these degenerative changes come on for years. But—
A. Not by what Mr. Clark related to me; no.

He could not ascertain when appellant's disk protrusion occurred.

[¶ 8] Dr. Narotzky successfully performed a decompressive lumbar laminectomy in May 1999, from which appellant appears to have fully recovered.

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Bluebook (online)
2001 WY 132, 36 P.3d 1145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-state-ex-rel-work-saf-and-comp-div-wyo-2001.