Appeal from the District Court of Carbon County The Honorable Wade E. Waldrip, Judge
The opinion of the court was delivered by: Kite, Chief 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 typographical or other formal errors so correction may be made before final publication in the permanent volume.
[¶1] In 2008-2009, Scott Davenport sought worker's compensation benefits for medical care and surgery to fuse vertebrae in his lumbar spine. The Wyoming Workers' Safety and Compensation Division (Division) denied benefits on the basis that his 2008-2009 back problems were not caused by work related injuries he suffered in 1984 and 1985. After a contested case hearing, the Office of Administrative Hearings (OAH) upheld the Division's denial of benefits, ruling that the procedure was necessitated by a pre-existing congenital defect in Mr. Davenport's lumbar spine and not his prior work related injuries. Mr. Davenport petitioned for judicial review and the district court affirmed the OAH decision. He then appealed to this Court claiming the OAH erred by failing to recognize that an aggravation of a pre-existing congenital defect is compensable and misapplied the second compensable injury rule.
[¶3] Mr. Davenport presents the following issues for this Court's consideration:
1. Did the Hearing Officer err by not recognizing that a material aggravation of a pre-existing or congenital condition is a compensable injury and that the delayed effects of such aggravation are also compensable?
2. Was the second compensable injury rule misapplied by the Hearing Officer?
The Division states the issue more generally:
Did substantial evidence support the OAH's decision that Davenport failed to prove a causal connection between his 1984 and 1985 work injuries and his 2008 lumbar symptoms and bi-level fusion surgery?
[¶4] Mr. Davenport has a long history of back problems. In 1984, he was employed by Carbon County Coal Company as an underground mechanic in its coal mine near Hanna, Wyoming, when he and another employee attempted to move a 500 pound hydraulic cylinder. The other employee dropped his end of the cylinder and Mr. Davenport injured his lower back while trying to continue to hold his end. Mr. Davenport was evaluated by orthopedic surgeon, Robert Curnow, M.D., who ordered x-rays, which were normal, and diagnosed a lumbosacral sprain. Mr. Davenport returned to work a short time later. The Division granted workers' compensation benefits for that injury.
[¶5] On April 8, 1985, Mr. Davenport was at work for Carbon County Coal Company when he fell and injured his lower back again. He was carrying an oxygen tank on his shoulder and walking in mud, when his feet became tangled in some wires. Imaging tests of Mr. Davenport's lumbar spine showed a defect in the bone at L4, known as a pars defect. Dr. Curnow stated in a letter to Mr. Davenport's employer that the defect in his spine was "most likely congenital but has predisposed him to chronic back pain." Dr. Curnow did not believe that Mr. Davenport could continue to perform the heavy lifting required by his job unless he had surgery, so he recommended surgery or employment retraining. Mr. Davenport chose to retrain as a welder. Mr. Davenport continued to see Dr. Curnow for approximately two years. At Mr. Davenport's final appointment with Dr. Curnow in 1987, he was "progressing well," was not doing any heavy lifting and was not on any medication. Mr. Davenport was awarded benefits for the 1985 injury; however, the Division did not make any benefit payments after March 31, 1989.
[¶6] Over the years, Mr. Davenport suffered several other injuries. In 1992, he was injured when a chain hit him in the chest and leg. He was also injured in 1995 when a pulley fell on his head while working as a welder. He underwent neck surgery as a result of that injury. In 2001, Mr. Davenport had an ATV accident, where he landed on his right shoulder and back. He did not report any specific low back or leg pain at that time.
[¶7] In 2004, Mr. Davenport was involved in a motor vehicle accident and again injured his back. X-rays showed an "[a]bnormal appearance of the lumbar spine with Grade I spondylolisthesis L4 on L5 . . . ." Spondylolisthesis is a misalignment of the lumbar vertebrae with one of the vertebrae (in this case L4) moving forward over the lower vertebrae (L5). Spondylolisthesis occurs when a person has a pars defect, which allows the forward movement of the vertebrae. The grade describes the amount of movement, with the alignment getting progressively worse from Grade I to Grade IV.
[¶8] In November 2008, Mr. Davenport went to see neurosurgeon Debra Steele, M.D. with a complaint of lower back pain. Dr. Steele ordered tests which showed Mr. Davenport had a L4 pars defect with Grade II L4 on L5 spondyloslisthesis.*fn1 Dr. Steele recommended surgery, and Mr. Davenport requested workers' compensation benefits, claiming that his surgery was a direct result of his 1984/1985 work related injuries. The Division denied his claim and he requested a contested case hearing. Despite the denial of his claim, Dr. Steele performed fusion surgery on Mr. Davenport at L4, L5 and S1.
[¶9] At the hearing, the OAH reviewed Dr. Curnow's medical records and deposition, which was taken as part of Mr. Davenport's request for benefits from the 1985 injury; Dr. Steele's medical records and deposition; medical records from various complaints and injuries between 1986 and 2008; and an independent medical examination (IME) performed by neurosurgeon Paul Williams, M.D. Mr. Davenport and Dr. Williams testified at the contested case hearing. The hearing examiner issued his decision, generally concluding that the evidence established Mr. Davenport's pars defect and spondolylisthesis were congenital, he had failed to prove his 2008 back problems and 2009 surgery were the result of his 1984/1985 work related ...