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Straube v. State ex rel Wyoming Workers' Safety and Compensation Division

May 20, 2009


Appeal from the District Court of Campbell County The Honorable Michael N. Deegan, Judge.

The opinion of the court was delivered by: Golden, Justice.


GOLDEN, J., delivers the opinion of the Court; BURKE, J., files a dissenting opinion, in which VOIGT, C.J., joins.

[¶1] Clayton Straube suffered an injury to his right knee while at work. The Workers‟ Compensation Division (Division) found the injury to be compensable and awarded benefits. Straube‟s knee never healed and approximately one year later he sought pre-authorization from the Division for osteochondral autograph implant surgery. The Division determined that Straube‟s current knee problems solely related to a pre-existing condition and denied further benefits. The Division‟s denial was upheld by the Medical Commission and, later, by the district court. We reverse.


[¶2] Straube poses these issues:

A. Is the decision of the Medical Commission contrary to Wyoming law?

B. Is there substantial evidence to support the [Medical Commission‟s] conclusion?

C. Is the [Medical Commission‟s] decision arbitrary and capricious?


[¶3] On August 19, 2005, Straube injured his right knee while working as a pipe helper for TIC Industrial Co., Inc. in Gillette, Wyoming. Straube immediately reported to the emergency room at the Campbell County Memorial Hospital, where he was evaluated by Dr. Nathan S. Simpson, an orthopedic surgeon. Dr. Simpson ordered an MRI on Straube‟s right knee, which revealed an "osteochondral defect of the medial femoral condyle" and a loose fragment lodged between the anterior cruciate ligament (ACL) and the patellar tendon.

[¶4] Straube was referred to Powder River Orthopedics & Spine, P.C. for additional orthopedic consultation. He was evaluated by Dr. Gerald Baker and Dr. John P. Dunn. Both doctors concluded:

[T]here does appear to be an osteochondral avulsion from the femoral condyle. From the MRI exam, however, it is impossible to tell whether or not that injury is acute or chronic. There also appears to be a loose body within the interchondral notch, which probably represents the loose osteochondral fragment.

Dr. Dunn performed arthroscopic surgery on Straube‟s right knee on August 26, 2005, and removed the loose body. In his Operative Report, Dr. Dunn noted:

Patient was noted to have a large OCD lesion of the medial femoral condyle. The remainder of the cartilage was pristine, and the meniscal cartilage was circumferentially stable to probing and pristine in appearance. The notch was inspected. The loose fragment of the OCD lesion was noted to be present. This was grasped with a pituitary and removed through a slightly enlarged anteromedial portal. Next, a lateral compartment was inspected and found to be pristine with regards to the articular cartilage and the meniscus, which was stable to circumferential probing. Next, an arthroscopic shaver was introduced. The base of the OCD lesion was noted to be covered in some fibrous material, which leads me to believe this was a pre-existing OCD lesion that merely was knocked loose when the patient kneeled on it. The base of the OCD lesion was debrided back to bare bone with a curette.

[¶5] Straube received worker‟s compensation benefits for the injury and the surgery performed by Dr. Dunn. In a "Final Determination Opening Case" issued on October 11, 2005, the Division informed Straube:

Available medical evidence indicates that you suffered from a pre-existing condition affecting your right knee, but experienced an acute aggravation (loose body) as a result of the August 19, 2005, incident. Coverage will be provided for the acute aggravation only.

[¶6] After the surgery, Straube was provided a course of physical therapy. In late October, Straube moved back to his hometown of Spokane, Washington, where he sought medical treatment with Dr. Thomas L. Halvorson, an orthopedic surgeon with Rockwood Clinic Orthopedics and Sports Medicine. Following Straube‟s initial visit with Dr. Halvorson on December 1, 2005, Dr. Halvorson noted:

PLAN: At this point, we are going to make an attempt to get back to work. I am a little bit doubtful that he will tolerate it; it is a fairly large lesion. He brought his pictures with him today. I suspect we are going to need to consider some sort of a Genzyme procedure to try to put some cartilage back in here. We will go ahead and release him to work today, though, and see how he does. I will plan on rechecking him once he has been back to work a little bit and see how he is tolerating it.

Straube‟s knee never completely recovered, and he was unable to return to work. Eventually, Dr. Halvorson recommended that Straube undergo osteochondral autograph implant surgery (also referred to as the "Genzyme procedure").*fn1

[¶7] Dr. Halvorson submitted a request for preauthorization of the proposed surgical procedure to the Division. After receiving the request, the Division sought independent medical evaluations from Dr. Meade Davis, III, and Dr. John A. Whipp, both board certified orthopedic surgeons. The two doctors did not personally examine Straube and, instead, only conducted record reviews. Dr. Davis replied to the Division as follows:*fn2

I have reviewed the medical records which you forwarded to me on Clay Straube[.] Mr Straube was injured on August 19, 2005, his injury consisted of squatting down and developing acute pain in the right knee. He was seen immediately and evaluated, and then apparently a short period of time had an MRI which revealed a loose fragment in his knee, he underwent surgery on his right knee to remove the loose body and underwent a Microfracture technique[.] The base of the defect where the osteochondral fragment came from was covered in fibrous material which lead Dr Dunn to believe there was a pre-existing osteochondritis dissecans lesion that was loosened by the process of squatting or kneeling. The patient has continued to have symptoms, and is now being considered for further surgical procedure.

After some thought, I feel that the new requested procedure including a Genzyme procedure is not the responsibility of the Wyoming Worker‟s Safety and Compensation Division. I believe this was a pre-existing condition which was temporarily aggravated by the simple process of bending the knee[.] I believe the first surgery was appropriately covered by Worker‟s Compensation, however I feel that any mild activity could of caused the fragment to become loosened, and this could of occurred at home as well as at work with no particular ...

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