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In the Matter of the Wyoming Worker's Compensation Claim of v. Sky Blue Enterprises

March 14, 2012

IN THE MATTER OF THE WYOMING WORKER'S COMPENSATION CLAIM OF: MICHAEL BEALL #2, APPELLANT (EMPLOYEE/CLAIMANT),
v.
SKY BLUE ENTERPRISES, INC., APPELLEE (EMPLOYER/OBJECTOR).



Appeal from the District Court of Carbon County The Honorable Wade E. Waldrip, Judge

The opinion of the court was delivered by: Burke, 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, Michael Beall, received preauthorization from the Wyoming Workers' Safety and Compensation Division for an orchiectomy, a procedure to remove his left testicle, which he claimed was related to a workplace injury. Mr. Beall's employer, Sky Blue Enterprises, Inc., objected to the preauthorization and the matter was referred to the Medical Commission Hearing Panel for a contested case hearing. Mr. Beall elected to undergo the surgery prior to the scheduled hearing. The Commission denied Mr. Beall's claim for reimbursement of medical expenses on the basis that the surgery was not reasonable or necessary medical care resulting from his workplace injury. Mr. Beall appealed to the district court, which affirmed the Commission's order. He challenges that decision in this appeal. We affirm.

ISSUES

[¶2] Mr. Beall presents the following issues:

1. Whether the Medical Commission's decision is arbitrary, capricious, or otherwise not in accordance with the law as a result of the fact that Mr. Beall was required to bear the burden of proving his claim for reimbursement of medical expenses.

2. Whether the Medical Commission's decision is supported by substantial evidence.

Appellee, Sky Blue, states the issues as follows:

1. Whether placing the burden of proof on the claimant Mr. Beall was in accordance with well-settled law and not arbitrary or capricious.

2. Whether the Medical Commission's decision that Mr. Beall's orchiectomy and associated medical treatment was not reasonable, necessary, nor causally related to his workplace accident of October 13, 2008, and thus was a non-compensable injury, is supported by substantial evidence.

FACTS

[¶3] Mr. Beall was injured on October 13, 2008 when, in the course of connecting a water valve for his employer, Sky Blue, he fell on the valve and struck his groin. The fall was not witnessed by any of his co-workers. Immediately after the incident, Sky Blue's safety coordinator drove Mr. Beall to a doctor's office in Rock Springs. Mr. Beall was examined by a physician's assistant, who noted that Mr. Beall had no swelling or bruising and instructed Mr. Beall to take ibuprofen for the pain. Although Mr. Beall was released to "work as directed," his safety coordinator drove Mr. Beall to his home in Rawlins.

[¶4] When Mr. Beall returned to work on October 15, expecting to be assigned light duty, he was instead assigned to an activity involving heavy lifting, which he refused. After leaving work that day, Mr. Beall sought treatment from Dr. Wayne Couch, his primary care provider. A physician's assistant at Dr. Couch's office adjusted Mr. Beall's pain medications and referred him to Central Wyoming Urological Associates in Casper. On October 16, Chad Sundquist, a physician's assistant at the urology clinic, examined Mr. Beall and noted that there were no abnormalities of Mr. Beall's scrotum, testes, or groin area. Mr. Beall complained of discomfort upon palpation, but no swelling, bruising, or bleeding was indicated. An ultrasound and CT scan were administered on October 22. Results from the ultrasound revealed that

The testes were homogeneous in echotexture without evidence of testicular laceration or hematoma in this patient status post trauma. Color Doppler flow demonstrated in both the right and left testes. The epididymis was within normal limits bilaterally.

The patient has bilateral hydroceles without evidence of testicular laceration or hematoma.*fn1

Similarly, the CT scan indicated that There is no evidence of pelvic fracture or hematoma in this patient who has sustained a "straddle" type injury. There does appear to be a small amount of increased attenuation in the ischiorectal fossa fat which may be secondary to edema from the patient's trauma. There is no focal hematoma present.

At a follow-up visit at the urology clinic on November 10, Mr. Beall was again examined by Mr. Sundquist. In the report from the second examination, Mr. Sundquist reported Mr. Beall's "status" as follows:

Improved. I am not able to identify any structural urologic abnormalities and [Mr. Beall's] pain is consistent with a body wall strain/connective tissue trauma. I recommend anti-inflammatories, and ice/heat [as needed] and will have patient follow [up] with his [primary care provider] for further consideration/evaluation and treatment. The patient sought my recommendations for how long he should be out of work, [and requested that I] fill out paperwork for short-term total disability. I advised him again that I cannot identify any urologic pathology, which is what I am authorized to see and treat.

[¶5] Mr. Beall continued to treat with Dr. Couch, who subsequently referred him to Dr. Gary Chizever, a gastroenterologist in Rawlins. Dr. Chizever examined Mr. Beall on January 8, 2009, and noted that "The patient demonstrated marked evidence of tenderness even on approach to the scrotal exam, even before any physical contact actually made. He demonstrated this behavior during examination of left groin area as well." With regard to his review of the CT scan from the Casper urology clinic, Dr. Chizever noted the following: "Question of small abnormality in the soft tissue in ischiorectal fossa. No obvious gross lesions to my review." Dr. Chizever ordered a repeat CT scan in order to "follow up on the question raised of an ischiorectal soft tissue abnormality from patient's previous CT." After reviewing the results of the repeat CT scan, Dr. Chizever noted that the "previously identified possible abnormality in the ischiorectal fossa found on CT now appears resolved on follow up study." Dr. Chizever advised Mr. Beall that it was "his and Dr. Couch's option whether a repeat visit to [a] urologist would be of benefit." Dr. Chizever subsequently notified the Division that he felt Mr. Beall could return to work.

[¶6] Mr. Beall returned to Dr. Couch and reported that "there is no way I can do my job." Dr. Couch referred Mr. Beall for follow-up urology and neurology consults in Casper. On February 17, Dr. Couch notified the Division that Mr. Beall had been released to return to work. The following day, Mr. Beall's workers' compensation claims representative noted that she received a message from Mr. Beall indicating that he had fired Dr. Couch and had found another doctor.

[¶7] On February 17, Mr. Beall saw Dr. David R. Cesko in Rawlins. With regard to his examination of Mr. Beall, Dr. Cesko noted as follows:

At this point, his exam is actually relatively benign. When I just barely touch his inguinal area on the left, he screams out in pain, which I think is somewhat overreacted. I do not think the amount of pain is consistent with the exam. Both of his testicles [] are equal. No masses were palpated. No hernia was palpated.

Dr. Cesko referred Mr. Beall to Dr. William D. Flock, a urologist in Laramie. Dr. Flock noted that Mr. Beall's left testicle was extremely tender but that he was "unable to palpate" the problem. In his notes, Dr. Flock indicated the following treatment plan options: "1. Neurology consult[,] 2. Urodynamic[,] 3. ? left orchiectomy." Dr. Cesko subsequently referred Mr. Beall to Dr. Reed Shafer, a neurologist, who conducted a physical examination and provided a complete neurologic study of Mr. Beall. Dr. Shafer determined that there "seems to be no anatomical abnormality demonstrated in terms of the genitalia," and reported that an electrodiagnostic study of Mr. Beall's left lower extremity was a "normal study."

[¶8] Mr. Beall then went to see Dr. Richard R. Augspurger, a urologist in Denver, pursuant to a referral by Dr. Flock. Mr. Beall reported that his symptoms were left testicular pain, urinary frequency, and erectile dysfunction. After conducting a physical examination and urodynamic testing, Dr. Augspurger detected no neurologic cause for any of Mr. Beall's symptoms. With regard to Mr. Beall's left testicular pain, Dr. Augspurger noted that "the remaining option would be to do a left orchiectomy as it appears that all conservative methods have been tried."

[¶9] In July of 2009, Mr. Beall contacted Dr. Augspurger and indicated that he wanted to proceed with an orchiectomy. Dr. Augspurger subsequently requested preauthorization for the procedure from the Wyoming Workers' Compensation Division, and the Division requested peer reviews from Dr. Jeffrey Balison and Dr. James White. Dr. White stated that "it would be nice to see some abnormalities on the imaging studies, but this is a sensory and a subjective symptom and even though there are no significant findings on imaging studies, the symptoms that this patient is experiencing certainly warrant this approach." The preauthorization report from Dr. Balison, in turn, provided as follows:

There seems little doubt that Mr. Beal[l] sustained a left groin injury while at work on 10/13/08. He sought medical care the day of injury and several times immediately thereafter. Of note, there has not been any reliable physical evidence of injury other than his self-reported pain which has seemingly become even worse with time, although he has not worked much, if at all, since injury and has relied on narcotic medication for pain management.

The only evident description that is counter to normal physical findings is contained in a letter to the division by Dr. Cesko written 04/02/09 that claims the left testis is spongy and non-functional. This is at odds with three urologists, a general surgeon, and about three other primary care providers. It is thereby discarded as being inaccurate.

More problematic is the linkage of erectile dysfunction to the accident. . . . Coupled with a normal neurological exam, essentially normal urodynamics and neuromuscular testing as well as ultrasounds and CT scans that are urologically unremarkable, secondary gain and somatization become problematic considerations. Psychological evaluation is advised, particularly since erectile dysfunction may constitute a future potential claim.

Although this patient has had very detailed and generally quite adequate evaluations, I would suggest consideration of the following before orchiectomy.

1. [Testing to rule out diabetes.]

2. [Testing to rule out sarcoidosis.]

3. Request Dr. Augspurger block the inguinal spermatic cord with short-acting local anesthetic (Lidocaine) as well as a concurrent long-acting local (Marcaine). If the patient gets substantial relief, he may be suffering from Chronic Regional Pain Syndrome (CRPS) Type II from a traumatic injury to the genital branch of the left genitofemoral nerve or similarly to the il[i]oinguinal nerve nearby. A simple sensory neurectomy could potentially yield substantial, if not complete, relief and can be completed as an outpatient under local and minimal sedation.

If all the above fails, orchiectomy is the remaining logical choice. Testicular prosthetic implantation would be up to the patient.

[¶10] Based on the reports provided by Drs. Balison and White, the Division issued preauthorization approval for the surgery on August 31, 2009. The approval noted as follows:

Either the injured worker or the employer may object to this determination and request a hearing. Affected parties have a right to a hearing before a hearing examiner as provided by the Wyoming Worker's Compensation Act and to legal representation. The Division must receive a written request for a hearing on or before September 15, 2009. If a timely written request for hearing is not filed with the Division, the final determination by the Division pursuant to W.S. § 27-14-601(k) shall not be subject to further administrative or judicial review.

On September 15, Sky Blue objected to the Division's determination, claiming that (1) Mr. Beall's condition did not meet the definition of "injury" under Wyo. Stat. Ann. § 27-14-102(a)(xi); (2) that there was no evidence that Mr. Beall sustained an injury in the course of his employment with Sky Blue; and (3) that the medical procedures proposed to treat Mr. Beall's condition were not "medically reasonable, necessary or appropriate under the circumstances." The matter was referred to the Medical Commission to determine whether the procedure was "medically reasonable and necessary" as a result of the October 2008 workplace injury. Approximately two weeks after Sky Blue objected to the Division's determination, and one week after the matter was referred to the Medical Commission, Mr. Beall proceeded with the orchiectomy. A post-operative pathology report of the testicle revealed "no grossly evident mass lesions" and indicated that the testicle was functional.

[¶11] The contested case hearing was held on July 22, 2010. The Commission heard testimony from Mr. Beall and was presented with extensive medical records from each of his treatment providers, as well as deposition testimony from Dr. Augspurger. After considering all of the evidence, the Commission concluded that "the orchiectomy procedure was not reasonable and necessary medical care as related to the October 13, 2008, work injury." The Commission also determined that Mr. Beall has not established a causal connection between the orchiectomy procedure and the work injury of October 13, 2008, and benefits related thereto are therefore found to be non-compensable. Mr. Beall, at most, sustained a minor injury to his ischiorectal/scrotal area, which was fully resolved by the time he saw Dr. Chizever on February 11, 2009.

The district court affirmed the Medical Commission's decision. Mr. Beall appealed the district court's decision to this Court.

STANDARD OF REVIEW

[¶12] Review of an administrative agency's action is governed by the Wyoming Administrative Procedure Act, which provides that:

(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 ...


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