Yenne-Tully v. STATE EX REL. WYOMING WORKERS'SAFETY AND COMPENSATION DIVISION

2002 WY 90, 48 P.3d 1057, 2002 Wyo. LEXIS 94, 2002 WL 1315454
CourtWyoming Supreme Court
DecidedJune 18, 2002
Docket01-134
StatusPublished
Cited by21 cases

This text of 2002 WY 90 (Yenne-Tully v. STATE EX REL. WYOMING WORKERS'SAFETY AND 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
Yenne-Tully v. STATE EX REL. WYOMING WORKERS'SAFETY AND COMPENSATION DIVISION, 2002 WY 90, 48 P.3d 1057, 2002 Wyo. LEXIS 94, 2002 WL 1315454 (Wyo. 2002).

Opinion

VOIGT, Justice.

[T1] This is an appeal from an Order Denying Benefits Nune Pro Tune issued by a hearing examiner from the Office of Administrative Hearings (OAH) on April 27, 2001. Brett Yenne-Tully (the appellant) contended that the herniated dise he suffered in 1997 was a second compensable injury resulting from a work-related accident in 1989. The Wyoming Workers' Safety and Compensation Division (the Division) disagreed. The hearing examiner concluded that the medical evidence indicated that the appellant's original injury was not the predominant cause of his subsequent dise herniation and he failed to prove that he was entitled to benefits under the second compensable injury rule. We affirm.

ISSUES

[12] The appellant phrases the issue as:

Whether, when the expert opinion apportions the causation for injury as 70 percent as non-occupational causes and thirty percent to the subject injury, Appellant has failed as a matter of law to meet his burden of proof.

The Division states the issue as:

Whether the Hearing Examiner correctly determined that Appellant's herniated dise in 1997 was not a second compensable injury resulting from his 1989 work-related accident.

FACTS

[13] On September 29, 2000, this Court reversed and remanded this case to the OAH for reconsideration under the second com-pensable injury rule. Yenne-Tully v. Workers' Safety and Compensation Div., Dept. of Employment, 12 P.3d 170 (Wyo.2000). In that opinion, we cited the facts as:

Yenne-Tully suffered his first back injury when a snow fence fell on him in 1982. He received treatment and missed two or three days of work. He had no further back problems until August 1989, when he fell down a flight of stairs while working as a guard at the Wyoming State Penitentiary. CT seans the following summer revealed a dise bulge at the L8-L4 level, as well as "some significant irregularity, primarily at the L5b-S1, more minor at the L4-L5 level." An MRI in December 1991 showed "early degenerative changes of the intervertebral dis[c]l at the LG-S1 level, without herniation." The Division paid for Yenne-Tully's conservative treatment for his back through December 1991. Yenne-Tully continued to lead an active life, but experienced constant back pain and had to leave work early or miss work on many occasions. In December 1997, he awoke one morning and could not move due to extreme pain. An MRI the following month revealed a herniated dise at the L4-L5 level. The dise was surgically repaired in January 1998.
Yenne-Tully sought workers' compensation benefits for his surgery, believing the herniated dise to be causally related to his 1989 fall The Division denied benefits, stating that, "[the current condition is due to a herniation at the L4-L5 level, which was not effected in the original injury." A hearing was held at Yenne-Tully's request on September 28, 1998. Four of his coworkers testified that since the 1989 accident, Yenne-Tully complained of, and exhibited symptoms of, back pain. Exhibits included the report and deposition of a physician appointed by the Division to examine Yenne-Tully and review his medical records.

Id. at 171.

[14] In the second proceeding, the hearing examiner relied on the following stipulated facts, which we quote from the record:

*1060 1. Claimant is 38 years old and has been employed as a correctional officer by the Wyoming State Penitentiary since 1986.
2. In August 1989, Claimant sustained an injury to his low back while at work when he fell down a flight of stairs.
3. A CT sean taken in June 1990 revealed dise bulging at the L3-L4 level.
4. A second CT scan taken in July 1990 showed "some significant irregularity, primarily at the L6-S1, more minor at the L4-L§ level.["]
5. An MRI taken in December 1991 revealed "early degenerative changes of the intervertebral dise at the L5-S1 level, without herniation." "
6. Claimant treated conservatively for the two years following his injury.
7. The injury was recognized by Respondent as work related and all medical benefits for services rendered from the date of injury to the date of last treatment in December 1991 were paid in accordance with the Workers' Compensation Law.
8. Claimant has credibly testified that, although he led a very active life since the date of injury, he has been suffering from various degrees of pain in his low back since the injury occurred in August 1989 to his low back.
9. In the years since his last medical treatment in December 1991, he has had to leave work early or take entire days off on numerous occasions because of low back pain.
10. Four of Employee-Claimant's coworkers at the Wyoming State Penitentiary testified that, since his 1989 work-related injury to his low back, Employee-Claimant walks with a [limp] or rolling gait, exhibits pain behavior in the lower back when he bends or rises from a sitting position, uses hands or arms to brace himself when sitting or rising and cannot perform any heavy or aggressive duties, such as restraining inmates.
11. Finally, in December 1997, he awoke in the morning to his alarm clock and could not move to turn if off because of excruciating pain in his low back.
12. An MRI taken in January 1998 revealed a herniated dise at the L4-Lb level.
13. Claimant underwent surgery in January 1998 which successfully repaired the herniation at the L4-L5 level.
14. The only medical opinion on the subject of the causation or inter-relation between the original August 1989 low back injury and the incident of December (1997, when Employee-Claimant could not move to turn off his alarm clock, is submitted in the deposition testimony of Dr. Nielson, which is incorporated in its entirety by this reference.

The hearing examiner further found:

15. Since his 1989 work injury, Yenne-'Tully led an extremely active life outside work including being dragged by a horse 'which resulted in a finger amputation.
16. Dr. Nielson testified that a 1991 MRI of the lumbar spine was essentially normal at the L4-L§ level. In 1997 an MRI of the lumbar spine revealed significant abnormalities including a large herniated dise at the L4-L6 level....
17. Dr. Nielson opined that only 80 percent of the causation of Yenne-Tully's 1997 level herniated dise was the result of the original 1989 work injury. Dr. Nielson apportioned 70 percent to be related to cumulative trauma, including his activity with horses....
18.

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2002 WY 90, 48 P.3d 1057, 2002 Wyo. LEXIS 94, 2002 WL 1315454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yenne-tully-v-state-ex-rel-wyoming-workerssafety-and-compensation-wyo-2002.