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Shepherd of the Valley Care Center v. Rebecca K. Fulmer

February 2, 2012

SHEPHERD OF THE VALLEY CARE CENTER, APPELLANT (RESPONDENT),
v.
REBECCA K. FULMER, APPELLEE (PETITIONER).



Appeal from the District Court of Natrona County The Honorable David B. Park, 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] Rebecca K. Fulmer (Fulmer) suffered injuries on two separate dates while working as a Certified Nursing Assistant (CNA) at Shepherd of the Valley Care Center (Shepherd). She submitted worker's compensation claims for both injuries. Shepherd objected to both claims, and the Wyoming Workers' Safety and Compensation Division (Division) denied benefits for the two injuries.

[¶2] Fulmer requested a hearing, and following a combined contested case hearing, the Office of Administrative Hearings (OAH) upheld the denial of benefits. The OAH concluded Fulmer was not entitled to benefits for her first injury because it was the result of Fulmer's own culpable negligence. It concluded Fulmer was not entitled to benefits for the second injury based on its finding that "Fulmer was performing activities of daily living not causally related to her work and the fracture could have become complete at any time or place."

[¶3] Fulmer appealed, and the district court reversed the OAH decision. The district court found the record did not support either the finding that Fulmer's first injury was caused by her own culpable negligence or the finding that Fulmer's second injury was caused not by her work but by normal activities of day-to-day living. We affirm the decision of the district court and hold that Fulmer is entitled to benefits for both of her August 2008 injuries.

ISSUES

[¶4] The Division did not appeal the district court's decision. Shepherd presents the following issues on appeal:

A. Whether the hearing examiner correctly determined that the injury sustained by Rebecca Fulmer on August 12, 2008, was caused by her culpable negligence and therefore [was] not a compensable injury as defined under Wyo. Stat. § 27-14-102(a)(xi).

B. Whether the hearing examiner correctly determined that the injury sustained by Rebecca Fulmer on August 30, 2008, resulted primarily from normal activities of day-to-day living and therefore [was] not a compensable injury as defined under Wyo. Stat. § 27-14-102(a)(xi).

FACTS

[¶5] Fulmer began working as a CNA at Shepherd on May 22, 2006. On the morning of August 12, 2008, Fulmer and another CNA, Seth Darrison, performed a two-person transfer of a Shepherd patient from the patient's bed to the bathroom. During this lifting procedure, Fulmer and Darrison heard Fulmer's hip pop, and Fulmer felt pain in her right hip. After Fulmer and Darrison transferred the patient from the bathroom to a recliner, Fulmer consulted with Mary Riggs, a physical therapy assistant who also works at Shepherd. Riggs massaged and "popped" Fulmer's right hip back into place. Fulmer then continued working with Darrison to complete two-person transfers of around seven or eight additional patients.

[¶6] Sometime during the afternoon of August 12, 2008, Fulmer performed a transfer of another patient from her wheelchair to her bed. Fulmer performed this transfer by herself, even though the patient care instructions for the patient warned that the patient was at high risk for falls and directed that the patient be transferred using two CNAs and a Hoyer Lift. After Fulmer completed the transfer of this patient, she began to experience severe pain in her right hip. Before leaving work that day, she saw Riggs again, and Riggs repeated the procedure she had performed earlier in the day.*fn1

[¶7] On August 15, 2008, Fulmer saw Dr. Christopher Snyder for treatment of her right hip pain. Dr. Snyder diagnosed an "acute right lumbar strain with right lumbar neuroradiculitis." X-rays of Fulmer's right hip and lumbar spine on August 15, 2008, showed no evidence of an acute abnormality and no evidence of inflammatory arthritis or significant degenerative change. Dr. Snyder prescribed muscle relaxants and anti-inflammatory and pain medications, and kept Fulmer off work for seventy-two hours with a return thereafter to light duty.

[¶8] On August 30, 2008, Fulmer returned to light duty at Shepherd. Her light-duty responsibilities included passing ice and water to residents, assisting in the dining room, and assisting in making beds. In the afternoon, Fulmer was passing ice and water to the Shepherd residents, a task that involved pushing an ice cart through the halls, emptying pitchers in the rooms, and refilling those pitchers with ice and water. While performing this task, Fulmer felt her hip snap and fell to the floor.

[¶9] Fulmer was taken to the Wyoming Medical Center, diagnosed with a fractured right hip and underwent surgery performed by Dr. Clayton Turner. Dr. Turner diagnosed Fulmer as follows:

1. Displaced right femoral neck fracture.

2. Questionable history of right femoral neck stress fracture, which was completed with acute displacement on August 30, 2008, versus a pathologic process that may result in bone weakening.

[¶10] Fulmer sought worker's compensation benefits for both the August 12th and August 30th injuries to her right hip. On March 15, 2009, Dr. Anne MacGuire performed an independent medical evaluation (IME). Dr. MacGuire concluded that Fulmer's August 12, 2008, hip injury was a work injury. She concluded that Fulmer's August 30, 2008, injury was not work related based on the following observations:

The pathologic report completed postoperatively documented the claimant has osteoporosis of the right hip. In my opinion, this was a fatigue fracture. Reviewing the definitions of injury and I quote from the information provided to me from the division of Workers' Safety and Compensation (xi "Injury means any harmful change in human organism other than normal aging and includes damage to or loss of any artificial replacement and death arising out of and in the course of employment while at work in or about in the premises occupied, etc"). The claimant was at work, but her fatigued fracture of her right hip is a normal aging process and while it occurred on the job was not due to any unusual or specific employment-related activity. The claimant has risk factors for osteoporosis, which include multiparity and vitamin D deficiency.

The claimant suffered [a] fragility fracture. It is my impression this fracture could have occurred at any time, and since she was not in the act of bending, twisting, or lifting, there does not appear to be an occupational cause for her fragility fracture.

By history to Dr. Iverson and Dr. Turner, the claimant was walking passing out ice. This would be activity considered normal during one's active day. The fact that she was walking is not a particular function of her job. The fragility fracture could have occurred at home getting in and out of a car or going to the grocery store. The medical record does not provide evidence of any work-related activities that contributed to the fragility fracture suffered by Ms. Fulmer on 08/30/08.

[¶11] Dr. Turner, Fulmer's treating orthopedic surgeon, disagreed with Dr. MacGuire's conclusions. Dr. Turner testified that while tests showed that Fulmer had a vitamin D deficiency, she had not been diagnosed with osteoporosis, and many people have low vitamin D levels without osteoporosis. Dr. Turner disagreed that Fulmer suffered a fatigue fracture. It was his opinion that the August 12, 2008, injury caused a stress fracture that was missed on the earlier x-rays because the radiologist was not specifically looking for it. Dr. Turner concluded that Fulmer's twisting or pivoting during the task of passing out ice and water caused the fracture to complete.

[¶12] Shepherd objected to Fulmer's worker's compensation claims for both the August 12, 2008, injury and the August 30, 2008, injury. On October 3, 2008, the Division issued a final determination denying benefits for the August 12, 2008, injury. The Division denied benefits for the first injury on the ground that Fulmer's injury did not meet the definition of injury as defined by Wyo. Stat. Ann. § 27-14-102(a)(xi). On July 16, 2009, the Division issued a final determination denying benefits for the August 30, 2008, injury. The Division denied benefits for the second injury on the ground that Fulmer's "hip fracture was not due to an extra-hazardous work activity. It occurred while performing an activity of daily living and was caused by a stress fracture due to an underlying medical condition."

[¶13] Fulmer requested a hearing, and the two benefit denials were combined for a contested case hearing. The OAH upheld the denial of benefits for both injuries. The hearing examiner concluded that Fulmer's August 12, 2008, injury occurred when Fulmer transferred a patient by herself, in violation of her employer's policy, and was therefore the result of her own culpable negligence and not compensable. With respect to the August 30, 2008, injury, the hearing examiner accepted the opinion of Dr. MacGuire and concluded the injury was the result of a normal activity of day-to-day living, not Fulmer's work, and was therefore likewise not compensable.

[¶14] Fulmer appealed, and the district court reversed. The district court concluded that the hearing examiner's finding of culpable negligence as a basis to deny benefits for the August 12, 2008, injury was not supported by substantial evidence. The district court further concluded that the hearing examiner misapplied the law in finding that Fulmer's August 30, 2008, injury resulted from a normal activity of day-to-day living.

STANDARD OF REVIEW

[¶15] We review administrative decisions based on the factors set forth in the Wyoming Administrative Procedure Act, which provides:

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:

(i) Compel agency action unlawfully withheld or unreasonably delayed; and

(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:

(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;

(B) Contrary to constitutional right, power, privilege or immunity;

(C) In excess of statutory jurisdiction, authority or limitations or ...


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