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] In 2003, Jimmie McMasters (McMasters) was working as a heating, ventilation and air conditioning (HVAC) journeyman when he fell nine feet from a beam to a concrete floor and suffered a compression fracture to his L1 vertebrae. In 2008, McMasters applied for permanent total disability benefits claiming a total disability under the "odd lot" doctrine. The Wyoming Workers' Safety and Compensation Division (Division) denied the application.
[¶2] The Division did not dispute that McMasters could not return to work as an HVAC journeyman but instead contended that his failure to obtain alternative employment was due to a pre-existing psychological condition and a poor effort to find work. The Medical Commission agreed and upheld the denial of benefits. On appeal, the district court found the Commission's decision to be supported by substantial evidence and affirmed.
[¶3] We reverse. McMasters established a prima facie case under the odd lot doctrine when he showed he could not return to his former employment and the combination of his psychological and physical conditions precluded alternative employment. The burden thereafter shifted to the Division to show that light work of a special nature, which McMasters could perform, was available. The Division did not meet its burden.
[¶4] McMasters presents the following issue on appeal:
Did the Panel err, as a matter of law, in concluding that Mr. McMasters failed to meet his burden in establishing that he is Permanently Totally Disabled?
[¶5] In the eleven years before his work injury, McMasters worked primarily in construction. Four of those years were as an HVAC apprentice. After he completed his apprenticeship, he worked two years as an HVAC journeyman, which is the position he held when he suffered his work injury.
[¶6] On April 17, 2003, McMasters was working for the Casper Tin Shop, installing duct work through a vaulted ceiling at the Childhood Development Center in Casper, Wyoming. The task required McMasters to stand and move about on two-inch wide trusses. He lost his footing and fell approximately nine feet to the concrete floor below, landing on his tailbone. McMasters was unable to get up and was taken by ambulance to the Wyoming Medical Center. What followed were years of treatment and evaluation by numerous medical providers and specialists, and ultimately McMasters' application for permanent total disability benefits.
[¶7] Dr. Joseph Sramek treated McMasters at the hospital and recorded the following assessment of McMasters' injury and treatment:
The patient had a fall on the job with an L compression fracture. He has no canal compromise from this. It is a 20% compression fracture. I believe this one can be treated conservatively in a brace with close follow-up and imaging studies. In all likelihood, he will be out of work at least for 6 to 8 weeks while he wears this brace, unless they can find sedentary work for him. Hank Osborne from High Plains Orthoprosthetics has been consulted to fit him for a Jewett brace. If he gets this in the morning, we can start to have him ambulate with physical therapy to see if he tolerates it. In the meantime, we will provide adequate pain control and he can be discharged tomorrow if he is able to ambulate well with the brace. We will set up additional follow-up for him on an outpatient basis.
[¶8] On May 5, 2003, McMasters had his first follow-up appointment with Dr. Sramek's office. The notes from that visit included the following assessment and plan:
Overall, it appears the patient's low back pain has improved considerably since his hospital discharge. No evidence of fracture progression is seen on radiographic studies and his neurologic examination remains intact.
At this time, we have recommended that he will continue the utilization of the Jewett bracing system for an additional 2 months. He will return in approximately 6-8 weeks for a follow-up visit to include repeat AP/lateral thoracolumbar x-rays centered at L1.
For pain control he will continue his current dosing of Lortab 7.5 mg to be dosed as 1-2 PO Q 6 hrs. PRN pain.
I have completed a work restriction form, which limits his return to work activities until 07/01/2003.
[¶9] McMasters had a second follow-up appointment with Dr. Sramek's office on June 11, 2003. McMasters reported an increase in low back pain and low back spasm, which Robert Griffin, Dr. Sramek's PA, attributed to immobilization, "as well as a change in both the static and dynamic positions of the spine." McMasters was instructed to wear his Jewett brace for another four to six weeks and was advised that when the brace was removed, he would be enrolled in physical therapy.
¶10] On July 10, 2003, McMasters had a third follow-up examination with Dr. Sramek's office. The entries from that visit indicate that McMasters was improving and reported a decrease in back pain from his last visit. McMasters was instructed to stop wearing the Jewett brace and to begin an eight-week physical therapy program. He was again restricted from working during that period.
[¶11] On September 8, 2003, McMasters again saw PA Robert Griffin. During that examination, McMasters reported significant improvement in his lower back pain as well as in his lumbar spine range of motion. Griffin made the following entry in the chart for a plan going forward:
Prior to returning the patient to work activities, I would like to have him undergo a physical capacity evaluation and possible disability rating with Dr. Zondag. This will be scheduled sometime in the next 3-4 weeks. At this time we have restricted the patient's return to work status until 10/15/2003. Dr. Zondag may wish to amend our current return to work plan based on his evaluation.
[¶12] On October 6, 2003, Robert Griffin reviewed additional films that had been taken of McMasters' spine. He made the following observation:
Comparison is made to previous studies on 05/05/2003. Evidence of L1 compression fracture is again seen. Anterior wedging is approximately 25-30%. This appears to have slightly increased when compared with the previous study. More sclerosis is noted about the fracture margins, suggesting adequate healing. No additional abnormalities are seen.
[¶13] On November 3, 2003, at the request of the Division, Dr. Tuenis D. Zondag examined McMasters for the purpose of providing an Independent Medical Evaluation (IME) and impairment rating. Dr. Zondag diagnosed a compression fracture at L1 with 30-40% compression. He noted that McMasters' "subjective complaints are consistent with the objective findings," and "[s]ymptom magnification behavior was not evident." Dr. Zondag found McMasters had reached maximum medical improvement and calculated a 5% whole body permanent impairment. Dr. Zondag also found that McMasters could return to work in a heavy work occupation.
[¶14] In early 2004, McMasters attempted to return to work for his employer, Casper Tin Shop, but his employer had not held his position. McMasters then went to work for Sheet Metal Specialties, another Casper company. On his first day back to work, McMasters aggravated his back injury carrying tools up a ladder. McMasters worked for two weeks before quitting due to back pain.
[¶15] On April 2, 2004, McMasters saw Dr. Sramek for his back pain. Dr. Sramek made the following entries in McMasters' chart:
Patient has axial back pain at the level of his fracture. I suspect the fracture is still playing a role.
I am going to get a MRI with stir sequences. In addition I am going to get some plain x-rays of his back including flexion/extension and I am going to also try to reopen his case with Workers' Compensation as I think the fracture is impairing him from returning to his previous line of work. I will have him follow-up with me after the studies.
I have also given him some samples of Celebrex and a prescription for Skelaxin 800 mg QHS. I think he should stay off work for now until we get his pain issues further resolved.
[¶16] On April 19, 2004, Dr. Sramek reviewed an MRI of McMasters' lumbar spine. He observed possible edema at the fracture site and a disc herniation at the L5-S1 level. He noted none of McMasters' symptoms related to the L5-S1 herniation. Dr. Sramek referred McMasters for a vertebroplasty, a procedure in which bone cement is injected into the problematic disc to solidify the vertebrae. McMasters underwent the vertebroplasty procedure on May 20, 2004. He reported temporary relief from the procedure but then his pain worsened.
[¶17] On August 3, 2004, on referral from Dr. Sramek, McMasters saw Dr. Zondag for an occupational medicine and vocational rehabilitation consultation. Dr. Zondag noted that "persistent changes in the MRI prompted Dr. Sramek to encourage Mr. McMasters to consider an alternate job or retraining." Dr. Zondag concluded:
I indicated to Jimmy that given his history and the requirement for vertebroplasty that he is not capable of returning to full HVAC work.
I feel that in an alternate job he will have to stay away from being in a bent position for long periods of time and stay away from twisting. His lift capacity is best within the light to light medium type of physical work capacity based upon Department of Labor Standards.
He reports now that he can tolerate sitting well, but has reduced tolerance for standing and prolonged walking as well as reduced tolerance for working in the bent position for prolonged times or repetitively.
I feel that the patient should be considered for alternate job placement within work that is compatible with his restrictions and/or retraining.
[¶18] On September 21, 2004, McMasters, on referral from the Division of Vocational Rehabilitation (DVR), saw Dr. Jack Herter for a psychological evaluation. The purpose of the DVR referral was "eligibility determination and vocational services planning." Dr. Herter's report contained a disclaimer that "[t]his evaluation is not a Psychological Pain Evaluation or Pre-surgical Psychological Pain Evaluation, nor is it intended for Workers Compensation Case Management." (Emphasis in original.)
[¶19] In preparing his evaluation, Dr. Herter considered McMasters' history and behavioral presentation, and he administered tests to determine McMasters' intellectual functioning and personality functioning. Dr. Herter reported that McMasters' employment history was notable for reasonable periods of stability. With respect to McMasters' intellectual functioning, Dr. Herter noted that McMasters had attended school through the eighth grade and then obtained his GED. He reported further:
Intellectually and academically, Mr. McMasters would be capable of handling vocational-technical level coursework as well as coursework at the community college level; however his Mathematics disorder would require special accommodations. If special accommodations and tutorial assistance fail, he may need a math waiver. Also, personality variables will need to be addressed in your vocational planning.
[¶20] With respect to McMasters' personality functioning, Dr. Herter made the following findings:
Mr. McMasters's history suggests a work ethic and potential for maintaining employment stability up to four years.
Mr. McMasters's test data supported high levels of anxiety, depression and worry as well as elevated levels of somatization. All three variables are known to impede the rehabilitation process and to prolong suffering in patients with chronic pain.
Mr. McMasters's data suggest low self-esteem, self-doubt, social introversion and social maladjustment.
Mr. McMasters was the product of an unstable, rejecting and abusing family environment, which left him Axis-II issues. Personality Disorders (DSM-IV Axis-II Psychopathology) are enduring patterns of maladaptive and self-defeating behaviors, beliefs and attitudes, which are pervasive and inflexible over time, have onset in adolescence or early adulthood, and lead to distress or impairment in social, personal or other important areas of functioning. Personality Disorders are viewed as being "traits," which are stable characteristics of the individual's personality, as opposed to "states," which tend to be transient and variable personality and emotional fluctuations. Personality Disorders are generally resistant to psychotherapeutic interventions.
Elevations occurred on measures of Avoidant, Antisocial and Paranoid traits. Avoidant traits facilitated the development of a Panic Disorder with Agoraphobia.
[¶21] Dr. Herter completed his report with a recommendation that McMasters be referred to a psychiatrist to assess whether he might benefit from being placed on an antidepressant. He further recommended that any vocational rehabilitation include pain management psychotherapy and cognitive behavioral therapy.
[¶22] In January 2005, DVR referred McMasters to the Community Health Center of Central Wyoming for psychiatric evaluation by Dr. Larry Plemmons. Dr. Plemmons noted problems with sleeping due to pain, decreased motivation, and problems with concentration and memory. He diagnosed McMasters with a "major depressive disorder," and prescribed an antidepressant.
[¶23] During 2005, McMasters continued to see Dr. Sramek for back pain. On June 8, 2005, McMasters saw Dr. Paul Ruttle for a new impairment rating. Dr. Ruttle assigned an 11% whole person impairment rating. He recommended restrictions on McMasters' standing, walking, lifting and bending, and he agreed with Dr. Sramek that McMasters was a poor surgical candidate at that time due to his obesity.
[¶24] On December 6, 2005, McMasters was referred to Wind City Physical Therapy for occupational therapy in the chronic pain program. McMasters was discharged on January 24, 2006, with the following report from his occupational therapist:
Jim presents with negative thoughts and expresses negative behaviors (at home) during therapy requiring maximal verbal cuing to attempt at positive thoughts and behaviors. He continues with negative verbalizations such as "I don't like people telling me to change or that I need to change." "I will get better once these lawsuits I have pending are over, rather [sic] I win or lose." "No one believes me I hurt, I went to one of my lawyers Friday (Hampton Young), and he acted like I was not really in pain." "My back will not get better, the doctors keep telling me I am getting worse and my back is broke." "My pain is physical not mental, this pain program seems like it is telling me my pain is in my head." Jim states he feels that he has adapted the best way he can in dealing with the pain. Jim is difficult to work with secondary to the negative thoughts and this therapist discussed with Jim the benefits of Cognitive Behavior Therapy for pain and the importance of him being in a stage of his life in which he is willing to make the necessary lifestyle changes in order to increase his quality of life. After much discussion with Jim, it was decided to discharge him from therapy secondary to stating he is not willing to change, "I am a negative person and I will stay that way, no one is going to change me into a positive person, I had a difficult childhood."
[¶25] On January 27, 2006, Dr. Sramek sent a letter to the Division requesting a referral to Dr. Michael Kaplan, a specialist in spinal diagnostics and pain intervention. Dr. Kaplan saw McMasters on May 11, 2006, and recommended facet injections, which Dr. Kaplan performed on May 25, 2006. This procedure gave McMasters temporary relief from his pain while at rest.
[¶26] On June 1, 2006, Dr. Sramek recommended McMasters be administered a steroid injection, and that procedure was performed at the Wyoming Medical Center on June 12, 2006. McMasters reported no benefit from the procedure.
[¶27] In that same month, June 2006, the Division referred McMasters to Dr. Herter for evaluation. The stated purpose of the evaluation was "to identify psychological, psychosocial, and cognitive-behavioral factors, apparent and/or suggested, in the examinee's assessment data, self-reported history, medical records, and behavioral presentation, which could potentially impede adaptation to pain and/or potentially pose as threats to medical treatment outcome."
[¶28] Dr. Herter met with McMasters on June 13th, 19th, and 27th. He made several specific findings based on his testing and examination of McMasters. These findings included high to extreme levels of depression, and moderately high to extreme levels of anxiety. Dr. Herter also found that McMasters presented with high to very high levels of somatization, which he explained "is not a conscious process," but is a "process whereby bodily complaints are exaggerated and/or exacerbated by stress and/or by strong emotional states." Among other additional findings was a finding of very high levels of Global Psychological Distress (GPD). Dr. Herter explained:
[GPD] is frequently observed in the pain patient population. GPD is an extreme emotional response to a catastrophic event or to an event perceived as being a catastrophic threat. For a poorly educated worker, who has relied exclusively on his/her nonverbal and physical abilities to survive, an injury that potentially prevents him/her from using his/her physical abilities to work can be perceived as a catastrophic threat to his/her survival.
[¶29] Dr. Herter reported the following conclusions to the Division:
Mr. McMasters presented with multiple psychological/ psychosocial risk factors, which were discussed in detail in the body of this report. These risk factors have been associated with impaired adaptation to pain, poor pain coping, prolonged disability, low rates of RTW, impaired or problematic compliance with treatment and rehabilitation regimens and less than satisfactory responses to medical treatment interventions, including invasive procedures.
Mr. McMasters's current psychosocial risk factors could be expected to impede RTW issues as much as they negatively detract from his probability of having successful medical treatment outcomes.
Mr. McMasters's data was apparent for high levels of Perceived Disability. Mr. McMasters believes that he is disabled. If Mr. McMasters is unable or unwilling to make significant behavioral changes; remains angry; fails to learn effective pain management techniques; remains physically inactive; I would suggest that his probability of returning to any form of gainful employment would be poor.
Treating Mr. McMasters successfully and effectively will be a challenge. He presents with multiple issues of significant complexity. He has a chronic pain disorder associated with both psychological factors (depression, anxiety, somatization and anger) and a medical condition. Though his depression is reactive and part of his pain diagnosis, the level of his depression warranted a diagnosis of major depressive disorder. In light of the level and severity of Mr. McMasters's depression, I would recommend a psychiatric referral for psychoactive medication assessment and management.
Mr. McMasters's anxiety is reactive and part of his pain diagnosis. Anxiety is associated with decreased comprehension of information presented by health care providers. Highly anxious patients become incapacitated with fear and embarrassment, which would appear to be consistent with [what] Mr. McMasters reported. His anxiety evolved into a Panic Disorder with Agoraphobia. Studies indicate that approximately 24% of chronic pain patients experience panic disorders. Panic-afflicted patients tend to avoid certain rehabilitation situations and sometimes become too overwhelmed to leave their homes, which would be consistent with what Mr. McMasters reported. Successful treatment of Panic Disorder with Agoraphobia typically requires a specific Cognitive-Behavioral treatment protocol. Some psychoactive medications can be effective for symptom management, but anti-anxiety agents impede Cognitive-Behavioral treatment. I would recommend a referral to a clinical psychologist specializing in the Cognitive-Behavioral treatment of Panic Disorder.
[¶30] Because McMasters' condition failed to improve, Dr. Sramek ordered a repeat MRI scan of his spine, which revealed degenerative disc disease at the L5-S1 level of the spine. Dr. Sramek referred McMasters to Dr. Brian Weider, a neurosurgeon. Dr. Weider noted the degenerative disc disease at L5-S1 and also reported that McMasters "has had diskography, which demonstrates partially concordant disk pain at L1-L2 as well as L5-S1 with nonconcordant pain T12 L1."
[¶31] In January 2007, Dr. Weider performed an L5-S1 lumbar decompressive laminectomy and fusion surgery on McMasters. On Dr. Weider's referral, McMasters began physical therapy in April 2007. McMasters' July 2007 physical therapy records indicate that McMasters "continues to work very hard with his exercises," and that McMasters reported "feeling a little bit better particularly across his low back."
[¶32] On July 12, 2007, Dr. Weider reported to the Division that McMasters had reached maximum medical improvement. Dr. Weider recommended an occupational medicine evaluation to determine work capacity and noted that it "is reasonable to not expect him to return to a ...