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In the Matter of the Worker's Compensation Claim of Rick D. Bodily, An v. State of Wyoming Ex Rel. Wyoming Workers' Safety and Compensation Division

November 1, 2011

IN THE MATTER OF THE WORKER'S COMPENSATION CLAIM OF RICK D. BODILY, AN EMPLOYEE OF JTL GROUP, INC.: RICK D. BODILY, APPELLANT (PETITIONER),
v.
STATE OF WYOMING EX REL. WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, APPELLEE (RESPONDENT).



Appeal from the District Court of Natrona County The Honorable W. Thomas Sullins, 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] The Wyoming Workers' Compensation Division (Division) denied Rick D. Bodily (Bodily) benefits for medical expenses related to his L5-S1 micro-lumbar discectomy performed by Dr. Debra Steele on January 8, 2008, because Division determined Mr. Bodily's medical treatment to his lower back after June 2, 2005, was not related to his compensable work-related back injuries of March 11, 1996, and July 8, 2004. Mr. Bodily requested a contested case hearing before the Office of Administrative Hearings (OAH) to challenge Division's denial of benefits. Before conducting the hearing, OAH granted Division's motion for summary judgment against Mr. Bodily. On review of that decision, the district court affirmed.

[¶2] On appeal to this Court, Mr. Bodily contends that genuine issues of material fact about causation of the disc herniation exist and asks that we reverse and remand for a contested case hearing. We agree with Mr. Bodily's contention, reverse OAH's summary judgment, and remand to the district court for remand to OAH for a contested case hearing.

ISSUES*fn1

[¶3] The deep issue*fn2 in this appeal may be stated as follows:

Claimant received benefits for work-related lifting and twisting lower back injuries in 1996 and 2004, and has experienced back pain intermittently since 1996. Once in 2005 and twice in 2007, he had non-work-related lifting lower back injuries. In early 2008, an MRI revealed a lower back herniated disc which a surgeon then repaired. The surgeon states any one of claimant's several lifting incidents could have caused the herniation. Do claimant's testimony and his surgeon's opinion create a genuine issue of material fact about causation of his disc herniation precluding entry of summary judgment against claimant on his claim for the surgery expenses?

FACTS

[¶4] In keeping with our standard of review, cited below, we shall consider the record in the perspective most favorable to Mr. Bodily and give him the benefit of all favorable inferences which may be fairly drawn from the record. In March 1996, Mr. Bodily injured his lower back while working for JTL Group in Casper, Wyoming. According to Mr. Bodily:

I was in the shop working on a paver taking off an exhaust. I was lifting and turning at the same time when I felt a shooting pain in my lower back that caused me to fall to the ground. I had never felt pain like that before.

The Division found the March 1996 injury was work related and awarded benefits.

[¶5] Although Mr. Bodily received treatment for his work-related injury, he continued to suffer low back pain. According to Mr. Bodily, the "low back pain from [his original] injury [had] never really stopped," and "[s]ince 1996, [he] always had back pain, it just continued to get worse." Over the years, Mr. Bodily treated his low back pain as conservatively as possible until it became intolerable which led him to see his family physician and a chiropractor for treatment of the low back pain.

Whether medical testimony alone is required to prove causation of a compensable injury at the summary judgment stage of proceedings before the hearing examiner.

[¶6] In 2004, Mr. Bodily reinjured his "lower back from twisting while lifting a box in the main office at work." Because he reinjured his back, he "attempted to have the medical treatment paid for under his 1996 initial case but in October 2004 a new case was opened at the suggestion of the Division." Despite a new case being opened, the Division determined he had suffered a compensable work-related injury and awarded benefits. He continued to receive benefits until June 2, 2005.

[¶7] In October 2005, Mr. Bodily reinjured his back "after lifting a car with three other guys at work (the car had to be moved to do asphalt work)." He continued to treat his low back pain conservatively until the pain became intolerable. Once it became intolerable, he saw his family physician and a chiropractor for treatment. His intolerable low back pain was located in the same area of his back as his original compensable work-related injuries.

[¶8] Mr. Bodily first saw Dr. Steele on October 19, 2007. Dr. Steele saw him "for low back pain and left leg pain and obtained a history of off and on low back pain since 1999." Dr. Steele ordered an MRI which revealed disc dessication at L5-S1 with a herniated disc or bulge. On January 9, 2008, Dr. Steele performed surgery on Mr. Bodily. It was discovered that Mr. Bodily had three extruded disc fragments causing the pain he had been experiencing. According to Dr. Steele:

[T]hree pieces of disc had come loose from the main disc and insinuated themselves to the side of the nerve root, and that was a large piece that had popped out of there. And now I remember that I was impressed with how much disc was sitting out to the side of this nerve root, which you could not truly appreciate based on the MRI imaging.

Dr. Steele testified that "bending while twisting is one of the biggest culprits for causing disc problems." She also testified in her deposition as follows:

[Question by counsel for Mr. Bodily]. One of the questions I have is, based upon actually seeing that disc and also having reviewed it on the MRI, can you date the onset of that herniation, of the lesion, whatever you call it, and say, yes, that disc ...


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