Shepherd of the Valley Care Center v. Fulmer

2012 WY 12, 269 P.3d 432, 2012 Wyo. LEXIS 12, 2012 WL 309532
CourtWyoming Supreme Court
DecidedFebruary 2, 2012
DocketNo. S-10-0236
StatusPublished
Cited by6 cases

This text of 2012 WY 12 (Shepherd of the Valley Care Center v. Fulmer) 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
Shepherd of the Valley Care Center v. Fulmer, 2012 WY 12, 269 P.3d 432, 2012 Wyo. LEXIS 12, 2012 WL 309532 (Wyo. 2012).

Opinion

GOLDEN, Justice.

[¶ 1] Rebecca K. Fulmer (Fulmer) suffered injuries on two separate dates while working as a Certified Nursing Assistant (CNA) at Shepherd of the Valley Care Center (Shepherd). She submitted worker's compensation claims for both injuries. Shepherd objected to both claims, and the Wyoming Workers' Safety and Compensation Division (Division) denied benefits for the two injuries.

[¶ 2] Fulmer requested a hearing, and following a combined contested case hearing, the Office of Administrative Hearings (OAH) upheld the denial of benefits The OAH concluded Fulmer was not entitled to benefits for her first injury because it was the result of Fulmer's own culpable negligence. It concluded Fulmer was not entitled to benefits for the second injury based on its finding that "Fulmer was performing activities of daily living not causally related to her work and the fracture could have become complete at any time or place."

[¶ 3] Fulmer appealed, and the district court reversed the OAH decision. The district court found the record did not support either the finding that Fulmer's first injury was caused by her own culpable negligence or the finding that Fulmer's second injury [435]*435was caused not by her work but by normal activities of day-to-day living. We affirm the decision of the district court and hold that Fulmer is entitled to benefits for both of her August 2008 injuries.

ISSUES

[¶ 4] The Division did not appeal the district court's decision. Shepherd presents the following issues on appeal:

A. Whether the hearing examiner correctly determined that the injury sustained by Rebecca Fulmer on August 12, 2008, was caused by her culpable negligence and therefore [was] not a compensable injury as defined under Wyo. Stat. § 27-14-102(a)(xi).
B. Whether the hearing examiner correctly determined that the injury sustained by Rebecca Fulmer on August 30, 2008, resulted primarily from normal activities of day-to-day living and therefore [was] not a compensable injury as defined under Wyo. Stat. § 27-14-102(a)(xi).

FACTS

[¶ 5] Fulmer began working as a CNA at Shepherd on May 22, 2006. On the morning of August 12, 2008, Fulmer and another CNA, Seth Darrison, performed a two-person transfer of a Shepherd patient from the patient's bed to the bathroom. During this lifting procedure, Fulmer and Darrison heard Fulmer's hip pop, and Fulmer felt pain in her right hip. After Fulmer and Darrison transferred the patient from the bathroom to a recliner, Fulmer consulted with Mary Riggs, a physical therapy assistant who also works at Shepherd. Riggs massaged and "popped" Fulmer's right hip back into place. Fulmer then continued working with Darri-son to complete two-person transfers of around seven or eight additional patients.

[¶ 6] Sometime during the afternoon of August 12, 2008, Fulmer performed a transfer of another patient from her wheelchair to her bed. Fulmer performed this transfer by herself, even though the patient care instrue-tions for the patient warned that the patient was at high risk for falls and directed that the patient be transferred using two CNAs and a Hoyer Lift. After Fulmer completed the transfer of this patient, she began to experience severe pain in her right hip. Before leaving work that day, she saw Riggs again, and Riggs repeated the procedure she had performed earlier in the day.1

[¶ 7] - On August 15, 2008, Fulmer saw Dr. Christopher Snyder for treatment of her right hip pain. Dr. Snyder diagnosed an "acute right lumbar strain with right lumbar neuroradiculitis." X-rays of Fulmer's right hip and lumbar spine on August 15, 2008, showed no evidence of an acute abnormality and no evidence of inflammatory arthritis or significant degenerative change. Dr. Snyder prescribed muscle relaxants and anti-inflammatory and pain medications, and kept Ful-mer off work for seventy-two hours with a return thereafter to light duty.

[¶ 8] On August 30, 2008, Fulmer returned to light duty at Shepherd. Her light-duty responsibilities included passing ice and water to residents, assisting in the dining room, and assisting in making beds. In the afternoon, Fulmer was passing ice and water to the Shepherd residents, a task that involved pushing an ice cart through the halls, emptying pitchers in the rooms, and refilling those pitchers with ice and water. While performing this task, Fulmer felt her hip snap and fell to the floor.

[¶ 9] Fulmer was taken to the Wyoming Medical Center, diagnosed with a fractured right hip and underwent surgery performed by Dr. Clayton Turner. Dr. Turner diagnosed Fulmer as follows:

1. Displaced right femoral neck fracture.
2. Questionable history of right femoral neck stress fracture, which was completed with acute displacement on August 830, 2008, versus a pathologic process that may result in bone weakening.

[436]*436[¶ 10] Fulmer sought worker's compensation benefits for both the August 12th and August 30th injuries to her right hip. On March 15, 2009, Dr. Aune MacGuire performed an independent medical evaluation (IME). Dr. MacGuire concluded that Ful-mer's August 12, 2008, hip injury was a work injury. She concluded that Fulmer's August 30, 2008, injury was not work related based on the following observations:

The pathologic report completed postoper-atively documented the claimant has osteoporosis of the right hip. In my opinion, this was a fatigue fracture. Reviewing the definitions of injury and I quote from the information provided to me from the division of Workers' Safety and Compensation (xi "Injury means any harmful change in human organism other than normal aging and includes damage to or loss of any artificial replacement and death arising out of and in the course of employment while at work in or about in the premises occupied, ete"). The claimant was at work, but her fatigued fracture of her right hip is a normal aging process and while it occurred on the job was not due to any unusual or specific employment-related activity. The claimant has risk factors for osteoporosis, which include multiparity and vitamin D deficiency.
ole ok
The claimant suffered [a] fragility fracture. It is my impression this fracture could have occurred at any time, and since she was not in the act of bending, twisting, or lifting, there does not appear to be an occupational cause for her fragility fracture.
se oar
By history to Dr. Iverson and Dr. Turner, the claimant was walking passing out ice. This would be activity considered normal during one's active day. The fact that she was walking is not a particular function of her job. The fragility fracture could have occurred at home getting in and out of a car or going to the grocery store. The medical record does not provide evidence of any work-related activities that contributed to the fragility fracture suffered by Ms. Fulmer on 08/30/08.

[¶ 11] Dr. Turner, Fulmer's treating orthopedic surgeon, disagreed with Dr. MacGuire's conclusions. Dr. Turner testified that while tests showed that Fulmer had a vitamin D deficiency, she had not been diagnosed with osteoporosis, and many people have low vitamin D levels without osteoporosis. Dr. Turner disagreed that Fulmer suf fered a fatigue fracture.

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2012 WY 12, 269 P.3d 432, 2012 Wyo. LEXIS 12, 2012 WL 309532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shepherd-of-the-valley-care-center-v-fulmer-wyo-2012.