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In the Matter of the Worker's Compensation Claim of Will Torres, An v. State of Wyoming Ex Rel.

June 13, 2011

IN THE MATTER OF THE WORKER'S COMPENSATION CLAIM OF WILL TORRES, AN EMPLOYEE OF HOME DEPOT USA: WILL TORRES, APPELLANT (PETITIONER),
v.
STATE OF WYOMING EX REL.
WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, APPELLEE (RESPONDENT).



Appeal from the District Court of Laramie County The Honorable Peter G. Arnold, Judge

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

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

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] Appellant Will Torres sought worker's compensation benefits relating to an August 2007 back surgery that he claimed was the product of a work-related injury he suffered in December 2006. The Wyoming Workers' Safety and Compensation Division (Division) denied benefits. The Division's denial was upheld by the Office of Administrative Hearings (OAH) and, later, by the district court. We will also affirm the denial of benefits.

ISSUE

[¶2] Torres presents the following issue for our consideration:

Whether the Office of Administrative Hearing's Decision that Mr. Torres was not entitled to worker[']s compensation benefits for his August 15, 2007[,] surgery and for worker['s] compensation benefits thereafter was arbitrary and capricious and not supported by the standing case law[.]

FACTS

[¶3] Torres began working for Home Depot in Cheyenne as a supervisor in the area of door and window installation in December 2000. His employment duties included, among other things, lifting and moving heavy merchandise. Since 2004, Torres has submitted three injury reports concerning his back.

[¶4] In July 2004, Torres claimed he injured his low back when he bent over to pick up a coffee cup and something in his back "went pop." On that occasion, Torres sought medical treatment from his family physician, complaining of pain in his low back and buttocks area, pain radiating down his left leg and across the anterior shin, and numbness in both legs to the knees. An MRI performed on Torres' lumbar spine on July 7, 2004, revealed a degenerative back condition. In particular, the MRI showed diffuse disc desiccation, with slightly more marked desiccation and loss of disc height at the L4-L5 level, and disc desiccation and bulging at the L5-S1 level of the spine. In September 2005, Torres claimed to have injured his back while moving a heavy pallet. Torres did not seek medical attention because he deemed the injury to be insignificant.

[¶5] The third reported injury, which is the focus of this appeal, occurred on December 28, 2006. Torres claimed he injured his low back, as well as his right shoulder and wrist, in a slip-and-fall accident in the Home Depot parking lot.*fn1 Torres saw Dr. Cynthia Choy at Healion Emergent Care in Cheyenne, complaining of low back pain and bilateral anterior thigh numbness. An x-ray and MRI taken of Torres' lumbar spine revealed the degenerative disc disease, but showed no evidence of acute injury. The radiologist, Dr. Jason Lindsey, noted mild degenerative changes at the L4-L5 level of the spine, with no significant disc bulge, protrusion, or herniation. At the L5-S1 level, Dr. Lindsey noted mild degenerative change in the right facet joint, but otherwise within normal limits. Dr. Lindsey also noted there was no significant interval change since the 2004 MRI.

[¶6] On January 9, 2007, Torres saw Dr. Vincent J. Ross of Smart Sports Medicine Center with complaints of low back pain and pain radiating down both legs. Dr. Ross generally diagnosed Torres with a lumbar sprain and sacroiliac sprain and recommended Torres undergo physical therapy two to three times per week. Torres participated in some therapy sessions, but the pain in his low back continued. Dr. Ross eventually referred Torres to Dr. Steven J. Beer, a neurosurgeon, for further evaluation.

[¶7] Dr. Beer first saw Torres on February 26, 2007. Torres reported that he had been experiencing severe low back and bilateral buttock pain since falling at work on December 28, 2006, but did not inform Dr. Beer about his previous back injuries and low back pain, or about his 2004 lumbar MRI. Dr. Beer reviewed Torres' 2007 MRI and noted that it showed "multilevel degenerative disease." Dr. Beer initially diagnosed a lumbar sprain and recommended conservative treatment. He referred Torres to Dr. George Girardi at Yellowstone Surgery Center in Cheyenne for epidural steroid injections.

[ΒΆ8] On March 9, 2007, Dr. Girardi performed an epidural steroid injection at the L4-L5 level of the spine, which gave Torres temporary relief of his pain. Dr. Girardi's report for that injection noted that he was treating Torres for "[l]ow back pain with bilateral leg pain due to lumbar degenerative disc disease." Torres saw Dr. Girardi again on April 13, 2007, and was administered bilateral L4-L5 interarticular facet joint injections, which also provided only short term relief of ...


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