Kebschull v. State ex rel. Department of Workforce Services, Workers' Compensation Division

2017 WY 94, 399 P.3d 1249, 2017 WL 3484363, 2017 Wyo. LEXIS 94
CourtWyoming Supreme Court
DecidedAugust 15, 2017
DocketS-17-0001
StatusPublished
Cited by2 cases

This text of 2017 WY 94 (Kebschull v. State ex rel. Department of Workforce Services, Workers' Compensation Division) 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
Kebschull v. State ex rel. Department of Workforce Services, Workers' Compensation Division, 2017 WY 94, 399 P.3d 1249, 2017 WL 3484363, 2017 Wyo. LEXIS 94 (Wyo. 2017).

Opinion

DAVIS, Justice.

[¶1] Appellant William Kebschull challenges the Medical Commission’s denial of additional temporary total disability benefits. He claim's that he should receive such benefits pursuant to Wyo. Stat. Ann. § 27-14-605(a) (LexisNexis 2017) and the second com-pensable injury rule. We affirm.

ISSUES

[¶2] Appellant presents several issues "that interweave legal and factual theories. We have reorganized and refined them to better capture the core, of the arguments under the applicable standards of review:

1. Was there substantial evidence- to support the Medical ‘ Commission’s conclusion that Appellant was not entitled to benefits under Wyo. Stat. Ann. § 27-14-605?
2. Is Wyo. Stat. Ann. § -27-14-605 imper-missibly vague and ambiguous? ■
3. Did the Medical Commission misapply the second compensable injury rule?
4. Was there-substantial evidence to support the Medical Commission’s conclu[1252]*1252sion that Appellant did not suffer a second compensable injury?
5. Did a mistake occur in the determination and award of permanent partial impairment benefits?

FACTS

[¶3] This case concerns Appellant’s persistent back problems and whether they were caused by a work-related injury. His history of back pain began before a reported workplace injury in 2008. Appellant was examined by a doctor in 1999 and complained “of rather severe back pain for the past year.” Although the doctor set up physical therapy to treat the back pain, Appellant did not go.

[¶4] A few years later, in 2002, Appellant again complained of “chronic low back pain” to his long-term physician, Dr. Bennie Roset-to, who is board certified in internal medicine. Dr. Rosetto practices at the Veterans Administration out-patient clinic in Kalispell, Montana. He treated Appellant over many years for a number of complaints, and he prescribed ibuprofin for chronic back pain in April 2003. Medical records from 2006 also state that Appellant suffered from “chrome low back pain” and “degenerative changes in the spine.”

[¶5] In early March of 2008, Appellant reported a work-related injury to his lower back. He was an assistant operator for an energy company in Pinedale at the time, and he hurt himself lifting a large valve. He also claimed to have slipped and fallen on the job a few days before that. Appellant was 62 years old at the time.

[¶6] The Pinedale medical clinic that Appellant went to on the day of the lifting incident diagnosed him with a lumbar contusion and strain. The treating physician devised a plan to have Appellant “start on some pain medication, be off work for a couple of days and rest the area as much as possible.”

[¶7] An MRI taken later in March did not show any acute changes from the fall, but it did show preexisting degenerative changes. The detailed findings and impressions from that MRI provide in part as follows:1

FINDINGS:

[[Image here]]
L4-5: There is very severe facet degenerative change and hypertrophy. There is a grade 1 degenerative spondylolisthesis. This finding, combined with congenitally short pedicles and ligamentum flavum hypertrophy, results in central stenosis. There is moderate left-sided and mild right-sided neural foraminal narrowing.
[[Image here]]

IMPRESSION:

1. Degenerative change throughout with multifocal abnormalities. The most significant focal pathology relates to central spine canal stenosis at L4-5 which is both acquired and congenital in nature.

[¶8] Another MRI was performed in June of 2008, and it likewise showed no acute changes due to the work injury. Instead, it demonstrated degenerative changes with “minor canal stenosis” and moderate change in the spine due to anterolisthesis. The doctor reviewing that MRI determined in part:

MRI of the lumbar spine is performed unenhanced. The lumbar vertebral body heights are maintained. There is diffuse disc desiccation present which partially spares L5-S1. The conus demonstrates normal signal and morphology. There are no paraspinous abnormalities detected.
⅜ * ⅜
L4-5: Mild Grade 1 degenerative anterol-isthesis L4 on L5 present with moderately severe facet, and mild vertebral spondylo-sis. There is a small posterior central disc [1253]*1253protrusion present accentuated by prominence of posterior longitudinal ligament. There is flavum hypertrophy and there is an element of congenital foreshortened pedicles. These factors contribute to moderate canal stenosis. There is also mild to moderate left 'and borderline biforaminal encroachment.
⅜ ⅜ ⅜

'CONCLUSION:

Mild canal stenosis is present at L2-3 and L3-4 with moderate change at L4-5- as detailed'above. Findings are due to a combination of congenitally foreshortened ped-icles, spondylosis and disc protrusions, as detailed. There is also contribution by fla-vum hypertrophy at L4-5.
There is mild left foraminal encroachment at L4-5 and L5-S1 with borderline forami-nal narrowing on the right side at each level due primarily to spondylosis.

[¶9] Appellant then saw Dr. Jacob Mathis for a neurosurgical consultation in April of 2008. Appellant explained how he was hurt on the job, but denied “any low back or spinal complaints prior tó a slip-n-fall injury .., on March 11, 2008.” An examination of Appellant’s low back led Dr. Mathis to the conclusion that Appellant was temporarily totally disabled at the time.

[¶10] In June of 2008, Appellant saw another neurosurgeon, Dr. Robert Hollis. He told Dr. Hollis that he had “never had spinal difficulties until March 6, 2008.”2 Dr. Hollis diagnosed Appellant with modest to moderate lateral stenosis on L4-L5, but he did not feel surgery was appropriate. Ultimately, he thought that Appellant would not be able to perform anything “other than sedentary workstyle in the remainder of his career life given his pain syndrome and his multilevel degenerative disc disease.” Appellant decided to try physical therapy in May of 2008, but he quickly stopped at the end of that month because, according to him, the therapy only increased his back pain.

[Ull] Dr. Rossetto at the VA clinic found Appellant unfit to return to work in 2008 and 2009. He then determined that Appellant was at maximum medical improvement on March 20, 2009. In the same month, Appellant went to Dr. Rossetto for certification of continued temporary total disability after he was released from care by Dr. Hollis. Another MRI was conducted, and Dr. Rossetto’s review of it revealed “a lot of degenerative changes and nothing specifically surgical.” Dr. Ros-setto referred Appellant to Dr. Camden Kneeland.

[¶12] In July of 2009, Appellant reported' low back pain to Dr. Kneeland, whose clinic specialized in treatment of spinal disorders. Dr. Kneeland noted a history of low back pain since the workplace incident, but his notes do not mention Appellant’s history of back pain before then. Appellant was again diagnosed with the same long-term degenerative conditions, including lumbar spondylo-sis.

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2017 WY 94, 399 P.3d 1249, 2017 WL 3484363, 2017 Wyo. LEXIS 94, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kebschull-v-state-ex-rel-department-of-workforce-services-workers-wyo-2017.