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

September 22, 2010


Appeal from the District Court of Laramie County The Honorable Edward L. Grant, Judge.

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

Before KITE, C.J., and GOLDEN, HILL, VOIGT*fn1, BURKE, JJ.

[¶1] James L. Ball (Ball) appeals the district court decision reversing an Office of Administrative Hearings order awarding benefits for medical treatments Ball received for a hernia. Ball suffered the hernia when a spinal cord stimulator, implanted to treat chronic back pain from an earlier compensable work-related injury, malfunctioned and shocked him, causing him to stand rapidly and then fall. The question we must answer is whether the hernia occurred "in the course of the employment" as that term appears in Wyo. Stat. Ann. § 27-14-603(c)(iii) (LexisNexis 2009). We hold that Ball's hernia occurred "in the course of the employment" and reverse the district court's decision.


[¶2] Ball presents these issues:

1. Was the decision of the Hearing Officer that James Ball's hernia was compensable under the "second injury doctrine" correct?

2. Did the District Court err by concluding as a matter of law that James Ball's hernia did not occur within the "course of employment" as required under § 27-14-603(c)(iii) (LexisNexis 2009)?

3. Should Wyoming recognize that injuries occurring from complications of medical treatment of work-related injuries are themselves compensable?

The Wyoming Workers' Safety and Compensation Division (Division) states a single issue:

Did the Hearing Examiner commit an error of law by analyzing Appellant's injury under the second compensatory injury doctrine and by failing to properly apply the requirements of Wyo. Stat. Ann. § 27-14-603(c)?


[¶3] In June 1993, while at work, Ball slipped on a drain cover as he was walking into a walk-in refrigerator to get some milk, and injured his shoulder, neck, back, and right leg. He was awarded permanent total disability benefits and has received ongoing benefits for treatment of chronic pain, including narcotic pain medications and implantation of a spinal cord stimulator.

[¶4] Ball originally had a spinal cord stimulator implanted for treatment of his chronic pain in 2000. By May of 2006, the original stimulator was no longer operable and a new stimulator was implanted. Unfortunately, with the new stimulator, Ball developed painful side effects that he described as "good jolts" or "a shocking sensation," and which occurred without warning while he was lying down or moved in a certain way. At the time of the hearing in this matter, Ball was working with his physicians to resolve these problems.

[¶5] In mid-July of 2007, Ball was at home lying in bed when he experienced a shocking sensation that caused him to attempt to stand up "real fast." Ball described it as having his right leg feel as though it was all muscle cramps or a big "charley horse." As Ball stood, he fell. He did not know whether he passed out or not, but when he attempted to get up, he experienced a pain in his left groin that he had never experienced before. Ball attempted to call his physician as he feared he had broken a wire on the stimulator. He initially thought that he had perhaps pulled a muscle, but the pain in his left groin worsened over time to the point that he sought medical attention.

[¶6] A few days after falling, Ball saw Dr. Deborah Young, M.D., a board certified psychologist and neurologist who had treated Ball for some time for his chronic pain. Dr. Young, who had seen Ball on June 28, 2007, and recertified his total disability, met with Ball on July 26, 2007. Dr. Young stated the following concerning that visit:

In the interval since our last appointment, somewhere around 7/15/07, Mr. Ball experienced severe shock-like pains on his right flank and right leg, which he attributed to his spinal stimulator. The pain was so intense that he jumped out of bed and either secondary to the pain or the postural hypotension I mentioned in my last letter, or a combination of both, he fell to the floor. Since that time he has had severe left groin pain, which Dr. Wailes' office has plans to evaluate. At our appointment, it was clear that Mr. Ball was in more pain; it was difficult for him to handle sitting in the chair and he asked to stand for part of the meeting.

[¶7] On August 1, 2007, Ball was examined by Dr. James Shaw, M.D., an associate of Dr. Wailes with Pacific Pain Medicine Consultants. At that time, Dr. Shaw noted:

The patient presents for an early follow up after a fall from bed. He ha[d] an electrical sensation discharge from what he believes was the SCS and a "charlie's horse" and passed out. He immediately felt a pull and burn in his groin on the left that has been present ever since. When he lays down he is fine, but when he gets up and walks around he feels the pain and it bulges. Valsalva increases the pain. It does not radiate to the testes or down the thigh. There is no history of previous herniorrhaphy. He still has stimulation in the low back but more stimulation in the legs but to the point of discomfort. No obvious significant movement of the leads on his last xray last week. The location of the pain is in the lower back neck and thoracic spine, but now has severe groin pain. The pain radiates down bilateral lower extremities and down bilateral upper extremities. The pain is described as sharp, burning, aching and stabbing. The severity of the pain is usually severe. The timing of the pain is constant. Associated symptoms are numbness and weakness on the right side. Pain clinic treatments have included medication management and spinal cord stimulation. Overall the patient is frustrated with ongoing pain and anxious to pursue other options. As part of this patient's exam, I have reviewed the notes of Dr. Young. The worst area of pain is located in the groin.

In that same report, Dr. Shaw noted the following in his treatment plan:

He is complaining of classic hernia complaints after this fall from his electrical feeling in his legs. I would consider this a work related problem based off the origin of the fall. I will order an ultrasound to r/o hernia as based on his complaints. In the meantime, no heavy lifting or repetitive bending in the meantime. Pain is so significant he couldn't tolerate the SCS adjustment we had scheduled for him so he has rescheduled.

[¶8] Following an abdominal CT scan, which revealed an inguinal hernia containing a large bowel, Ball underwent surgery on August 16, 2007. At the time of the operation, the surgeon noted that "[t]here was a lot of scarring either this hernia had been quite chronic or it may be related to previous surgery. I think the patient may have had a vasectomy on that side." Ball had in fact had a vasectomy more than twenty years earlier.

[¶9] Ball saw Dr. Young again on December 6, 2007, after having undergone hernia surgery. In a letter concerning that visit, Dr. Young summarized the history Ball had previously provided concerning his hernia, that he had jumped out of bed and fallen to the floor after experiencing an electrical sensation in his right leg. Dr. Young concluded, "[I]t would appear that the hernia developed as a consequence of the neurological sequelae of Mr. Ball's work-related injury."

[¶10] The Division issued a final determination denying payment for treatment of Ball's hernia on the basis that it was not related to Ball's original 1993 injury to his back. Ball objected to the Division's determination, and the matter was referred for a contested case hearing. During the contested case hearing, Ball contended that he was entitled to benefits to cover the costs related to his hernia because the development of his hernia was causally related to his original work-related injury. Specifically, Ball claimed that his fall was caused by a malfunction in his electrical stimulator, which was prescribed and implanted to treat his chronic low back pain. Ball contended that the hernia statute, Wyo. Stat. Ann. § 27-14-603(c), should not apply, but if it were applicable, he had proven the statute's elements.

[¶11] The Division contended at the contested case hearing that Ball had not filed an injury report for his hernia and thus neither the Division nor the hearing examiner had jurisdiction to award benefits. The Division further contended that § 27-14-603(c) was controlling and that Ball could not meet his burden of proof under that statute, because "how, why, when, or where the Claimant's hernia occurred is a matter of significant speculation or conjecture." The Division also contended that one of the facilities that had provided care for Ball's hernia had failed to file timely reports of certain treatments or procedures and such applications for payment were thus barred.

[¶12] At the contested case hearing, the only witness to testify was Ball. No deposition testimony was presented, and the Division did not present an independent medical evaluation. Following the contested case hearing, the hearing examiner entered his findings, conclusions and order on February 7, 2008. The hearing examiner concluded the employee was not required to submit a new injury report because his hernia was a compensable second injury. The hearing examiner agreed with the Division, however, that certain of the costs for Ball's treatment were not reimbursable because the facility that had provided the treatment had not timely submitted the reports of its treatment.

[¶13] The hearing examiner also agreed with the Division that the hernia statute, § 27-14-603(c), was applicable. The hearing examiner found, however, that Ball had proved all of the statutorily required elements and Ball's hernia was therefore a compensable injury. Specifically, the hearing examiner made the following relevant findings of fact:

(i) Was the Hernia of Recent Origin?

51. This Office finds and concludes that Ball clearly proved his July 2007 hernia was of recent origin. Ball testified his left groin pain started after his fall and was a new pain. Ball also indicated he has never before had a hernia or groin pain, although he did have a vasectomy five years ago. In addition, there is no indication of any groin pain or hernia in the medical records, which were submitted in this case, prior to July 2007. Although Dr. Deemer's operative report suggests that Ball's hernia could have been chronic, Ball's symptoms, related to his hernia, did not arise until his fall which was caused by a shock from the spinal stimulator. . . . Furthermore, this Office gave little weight to Dr. Deemer's unsolicited comment in his operative report because the statement was speculative as to the reason for the scar tissue.

(ii) Was the Hernia's Appearance Accompanied by Pain?

52. This Office finds and concludes that Ball clearly proved his July 2007 hernia was accompanied by pain. Ball testified he immediately experienced left groin pain after his fall in July 2007. Ball's testimony is further supported by Dr. Young's July 26, 2007, letter to Ball's claim's analyst which indicated Ball had severe left groin pain after his fall, and Ball was in pain at his appointment with Dr. Young. Furthermore, the medical records from each of the physicians indicated that Ball consistently reported how and when his left groin pain started.

(iii) Was the Hernia immediately preceded by some accidental strain suffered in the Course of Ball's Employment?

53. The appearance of Ball's hernia or hernia related symptoms was immediately preceded by an accidental strain. Ball testified, and repeatedly and consistently reported to his medical providers, that he fell when his leg gave out after a shock ...

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