Gonzales v. STATE WORKERS'COMP. DIV.

970 P.2d 865
CourtWyoming Supreme Court
DecidedDecember 30, 1998
Docket98-159
StatusPublished

This text of 970 P.2d 865 (Gonzales v. STATE WORKERS'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
Gonzales v. STATE WORKERS'COMP. DIV., 970 P.2d 865 (Wyo. 1998).

Opinion

970 P.2d 865 (1998)

In the Matter of the Worker's Compensation Claim of Margie Marie GONZALES, Appellant (Employee-Petitioner),
v.
STATE of Wyoming ex rel. WYOMING WORKERS' COMPENSATION DIVISION, Appellee (Objector-Respondent).

No. 98-159.

Supreme Court of Wyoming.

December 30, 1998.

*867 Robert A. Nicholas of Nicholas Law Office, LLC, Riverton, Wyoming, representing Appellant.

John W. Renneisen, Deputy Attorney General; Gerald W. Laska, Senior Assistant Attorney General; and Bernard P. Haggerty, Assistant Attorney General, representing Appellee.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN and TAYLOR,[*] JJ.

MACY, Justice.

Appellant Margie Marie Gonzales (the employee) appeals from the district court's order affirming the Office of Administrative Hearings' denial of worker's compensation benefits.

We affirm.

ISSUES

The employee presents the following issues for our review:

1. Is Ms. Gonzales' thoracic condition directly related to her 1993 work injury?
2. Was the decision of the Hearing Examiner arbitrary, capricious, an abuse of discretion, or unsupported by substantial evidence?
3. Does the Hearing Examiner's decision fail to address the ultimate issue raised by the objection [to] the Final Determination?
4. Does the Hearing Examiner's Order set out sufficient findings of fact and conclusions of law?
5. Was the decision unsupported by substantial evidence?

FACTS

The employee was injured on October 18, 1993, while she was working as a certified nurse's assistant at the Wind River Healthcare and Rehabilitation Center. She was moving a patient when she felt a sharp pain in her neck, a burning sensation in her right shoulder, and numbness and tingling down her right arm. She filed an injury report claiming that she injured her "[r]ight upper back." She received benefits from the Division of Workers' Safety and Compensation (the division) for pain related to her neck.

The employee consulted with Michael Pryor, M.D. in January of 1994, to whom she reported pain in her cervical spine and shoulder. He reviewed her cervical spine films, which were normal. He was unable to identify a neurologic deficit and diagnosed fibromyalgia.[1] She was seen by Peter Crane, M.D., a neurologist, on October 13, 1994. He found that the cause of her right shoulder and arm pain was uncertain.

Michael J. Ford, M.D., an orthopedic surgeon, first saw the employee on November 27, 1995, for an independent medical examination and impairment rating. He reported that the x-ray of the thoracic spine and chest was normal and requested an MRI, which also came back normal. Dr. Ford gave the employee a four percent whole person impairment rating for her cervical spine injury but concluded that she was not entitled to a thoracic spine impairment rating because she had no limitation of her range of motion in that part of her back.

The employee first visited Kenneth A. Pettine, M.D., an orthopedic surgeon, in January of 1996. In his deposition, Dr. Pettine stated that her examination showed no evidence of neurologic findings and that her neck appeared to be normal. He noted that she had pain and decreased range of motion in her thoracic area. After ordering a discogram, Dr. Pettine diagnosed a disk tear in her thoracic spine, specifically at T9-T10. The employee told Dr. Pettine that her pain stemmed from her 1993 work-related injury, and he concluded that her chronic, incapacitating back pain in the thoracic region was directly related to her work-related injury.

Anne M. MacGuire, M.D., a rheumatologist, saw the employee on March 12, 1996, to give an opinion concerning the employee's current medical condition, a diagnosis, a recommended *868 treatment plan, and an opinion as to whether her problems were related to her October 1993 injury. The doctor examined the employee and reported:

Her complaints of discomfort are truly in the thoracic spine, not her neck. When examined, she had an extremely positive withdrawal reaction. When one would just touch her skin, she would flinch, flex her back and jerk away very suddenly. This type of reaction would be unusual in someone who truly had a significant disc injury as they would not want to move this fast, and, typically, just touching the skin does not evoke any significant pain responses in a truly serious disc injury.

Dr. MacGuire found that the employee's symptoms were inconsistent with a thoracic spine injury but, nevertheless, gave the employee a five percent whole person impairment rating.

Dr. Ford saw the employee again on February 3, 1997. At that point in time, he reported that "this patient's symptoms seem to be way out of proportion to any objective findings" and "there seems to be a lot of functional overlay."[2] He was unable to say that her condition was work related.

The division had Robert G. Weiner, M.D., an orthopedic surgeon, conduct an independent medical examination on May 25, 1996. In his medical report, Dr. Weiner concluded that the thoracic condition the employee was complaining about was not related to the October 18, 1993, injury:

Any pathology from the annular tear of T9-T10 can in no way explain all of the examinee's symptoms or clinical findings. Ruptured thoracic disks are extremely rare, and certainly could not be explained by the mechanism of injury that the examinee describes as occurring on 10/18/93. The description of the injury being the turning of the examinee, resulting in a stabbing pain in the right side of her neck with a burning sensation in the right shoulder and right arm, can in no way be explained by pathology at the T9-T10 level.
....
... I do not feel that she suffered a tear of the annulus at T9-T10 on 10/18/93, and I do not feel that the pathology demonstrated at that level by Dr. Pettine is Workers Compensation in nature.

The division issued a final determination on June 5, 1996, which discontinued benefits for the employee's thoracic back condition.[3]

The employee objected to the division's final determination and requested a hearing. A hearing was held before the Office of Administrative Hearings on February 6, 1997. At the hearing, the employee testified that the pain had not "moved" from her neck to her back but had gotten gradually more intense. When confronted with her early medical records that described only neck pain, however, she conceded that she had not immediately reported her back pain to her doctors because she did not want to have to quit working.

Dr. Weiner, the only examining physician to testify at the hearing, stated that the T9-T10 problem was a degenerative condition, which probably had been asymptomatic for many years. He opined that, on the basis of a reasonable medical probability, the work incident did not cause a thoracic spine injury. He testified that, had the employee suffered a thoracic injury, she would have experienced immediate stabbing pain in the mid-thoracic area followed by a dull persistent aching pain that was fairly unresponsive to any activity or change of position. He believed that her condition was due more to an emotional problem rather than to organic pathology. In response to a question from the hearing examiner on this point, Dr. Weiner gave the following analogy:

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