Appeal from the District Court of Natrona County The Honorable Catherine E. Wilking, 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] Catherine Lynnette Morris (Morris) submitted a worker's compensation claim for permanent total disability (PTD) benefits, and the Wyoming Workers' Safety and Compensation Division (Division) denied her claim. Morris sought review by the Wyoming Medical Commission (Commission), which upheld the Division's denial of benefits. The district court affirmed.
[¶2] On appeal, Morris does not contend that the Commission's decision is unsupported by substantial evidence or that the Commission misapplied the law. Morris instead challenges two evidentiary rulings by the Commission: 1) the admission of a psychological report produced after the discovery cutoff; and 2) a limitation on the scope of Morris' testimony to matters not testified to in the Division's discovery deposition of Morris.
[¶3] We find no abuse of discretion in the Commission's admission of the psychological report. The Commission did abuse its discretion in the limitation it placed on the testimony of Morris, but Morris did not object below to that limitation and thus waived her right to appeal that issue. We therefore affirm.
[¶4] Morris presents the following issues on appeal:
Issue 1 -- Did the Hearing Officer err when he admitted the expert report of Dr. Kenneth Bell into evidence?
Issue 2 -- Did the Hearing Officer err when he denied Ms. Morris the opportunity to present live testimony before the Medical Commission on matters previously discussed in her discovery deposition?
[¶5] On August 20, 1995, Morris slipped and fell while working as a master control operator for KFNB-TV. She injured her back and was diagnosed with a left L5 herniated disc with compression of the S1 nerve root. On August 24, 1995, Morris underwent a hemilaminectomy and microdiscectomy. Following her surgery and recovery, Morris returned to work for a different television station and continued working until the fall of 1996, when she stopped working due to increased back pain. In October 1996, Morris underwent a redo of the laminectomy and discectomy at the L5 disc level. Thereafter, Morris was able to work until sometime in 2001.
[¶6] On July 1, 2001, Morris was seen in the emergency room following a fall down a set of stairs, a fall that did not occur while Morris was working. She reported low back and left hip pain, and an MRI of her back was obtained. The MRI showed degenerative changes, disc disease at the L2-3 level, and the prior surgery at the L5-S1 level. The radiologist reported the following impression:
1. Postoperative changes of L5-S1 with enhancing scar tissue and no recurrent disc protrusion identified.
2. Desiccated slightly flattened disc L2-3 level with diffuse annular bulge but without discrete herniation or canal stenosis identified.
The Emergency Room Report concluded with the assessment: "low back pain status post fall," and "left hip contusion."
[¶7] On September 26, 2001, Morris saw Dr. Douglas Hemler for an independent medical evaluation and impairment rating. Dr. Hemler reviewed Morris' medical history and performed physical and neurological assessments. Dr. Hemler found Morris had a work-related lumbar spine injury with residual S1 radiculopathy following two surgeries. He concluded Morris had reached maximum medical improvement and rated her impairment as a twelve percent whole person impairment. Dr. Hemler felt Morris could lift twenty pounds, sit, walk, and stand as tolerated and that she could work in a sedentary position and perform light duty work.
[¶8] In November 2001, the Division notified Morris of the twelve percent whole person impairment rating and provided Morris a form that gave her the option of accepting the impairment rating or requesting a second opinion. On January 4, 2002, Morris returned the form to the Division with her signed agreement to the physical impairment rating and her application for a permanent partial impairment award based on that rating. The Division issued its final determination granting the award on January 8, 2002.
[¶9] On February 9, 2002, Morris was seen at the emergency room after falling down metal stairs at a trailer home. She was treated for a laceration to her left ankle and reported no other injuries or pain.
[¶10] On April 12, 2002, Morris saw Dr. Robert Narotzky, with whom she had consulted earlier concerning her back pain. Dr. Narotzky reported that she had an extreme limp, reduced range of motion in her low back, and tenderness at L2-3 and L5-S1. Testing revealed evidence of a chronic left S1 radiculopathy and concordant pain response at L2-3 and L5-S1. Dr. Narotzky recommended against fusion at the L2-3 and L5-S1 levels, but he noted "Ms. Morris is being quite persistent." On May 15, 2002, Dr. Narotzky performed the L2-3 and L5-S1 fusion.
[¶11] On July 9, 2002, Morris had a follow-up appointment with Dr. Narotzky. Notes from that visit indicate:
She comes in today status post anterior posterior fusion. She is doing fairly well with regard to her symptoms. Her preoperative symptoms have resolved.
She is going through a tough time now, as her boyfriend recently left her and she is concerned about her financial situation.
Otherwise, she stated her preoperative pain is gone and she is improving on a daily basis.
She complains today of paraesthesia in her left upper extremity, mainly her pinky and ring finger.
[¶12] From the fall of 2002 into January 2003, Morris' symptoms remained improved over her preoperative symptoms. In January 2003, Morris complained of pain in her left leg with numbness and tingling. Because those complaints continued, Dr. Narotzky recommended a psychological evaluation to assist in determining whether Morris would be a candidate for implantation of a spinal cord stimulator.
[¶13] In April 2003, the Division referred Morris to an orthopedic surgeon for an independent evaluation. The Commission's findings of fact accurately summarized that evaluation as follows:
On April 16, 2003, Morris was evaluated by Dr. Robert Knetsche, an Orthopedic Surgeon at the request of the Division. Complaints included severe mid to lower lumbar pain, left leg pain, numbness below the knee, and weakness in the left ankle and possibly the quadriceps region. Dr. Knetsche reviewed the medical treatment history, conducted an examination of Morris, and reviewed radiographic studies. His assessment was severe low back pain due to multiple surgeries and degenerative disc disease with a possible fusion failure at L2-3 and S1 radiculopathy shown on EMG as well as examination. The S1 radiculopathy was impairing her left lower extremity in the ankle and the foot. The Panel notes that it appears the fusion was solid and no records or studies show a fusion failure.
In responding to specific questions by the Division, Dr. Knetsche believed that her current condition was related to the initial surgery following the work injury and set in motion a chain of events resulting in subsequent surgeries. There did not appear to [be] any pre-existing medical conditions. According to Dr. Knetsche, there was no evidence of symptom magnification on examination or through testing and she has multiple symptoms of back pain. The Dr. opined that she was essentially totally disabled from work due to her severe back pain that prevents her from sitting or standing for any length of time and limits the distance she can walk and her need to take pain medications.
[¶14] Also in April of 2003, Dr. Narotzky received the results of Morris' psychological evaluation and recommended a trial placement of a spinal cord stimulator. The stimulator was implanted, and on June 6, 2003, Morris returned to Dr. Narotzky for a follow-up examination. Morris reported being "ecstatic with her results," and the examination showed that her strength was normal, her gait was normal, and she was not using a cane.
[¶15] On August 15, 2003, on the Division's referral, Morris saw Dr. Anne MacGuire for an independent evaluation and permanent impairment rating. The Commission's findings accurately summarized Dr. MacGuire's evaluation as follows:
Dr. Anne MacGuire authored an opinion medical evaluation report on August 25, 2003. Dr. MacGuire's report reflects a detailed medical record review and Dr. MacGuire also conducted a physical examination. Morris was poorly conditioned. She had generally equal leg circumferences and she was able to squat completely. She showed positive pain behaviors throughout the evaluation and had inconsistent straight leg maneuvering results. She was able to walk without the use of a cane and getting on and off the examination table. She had giveaway weakness in her lower extremities that was inconsistent with her ability to stand. Dr. MacGuire then performed a rating based on the injury to the L5-S1 lumbar level. Dr. MacGuire was concerned about the impact of the L2-3 level and whether it should be rated as there was no indication the L2-3 level was related to the work injury and there were notes of prior injuries including injuring her back lifting laundry and a motor vehicle accident. The L2-3 level was likely related to degenerative conditions and poor health habits, including smoking and drug use (Dr. MacGuire apparently was not aware of the post accident falls and the complaints that began at that time). Dr. MacGuire did not include the L2-3 level in the rating. Morris was rated with a 23% whole person impairment. Dr. MacGuire felt she could return to light sedentary work and she has been able to drive herself to Denver from Casper, and was taking care of a disabled son. Dr. MacGuire opined that when factoring her known history of drug and substance abuse, emotionally she may consider herself disabled.
[¶16] On September 18, 2003, the Division notified Morris of the twenty-three percent whole person impairment rating and again provided Morris a form that gave her the option of accepting the impairment rating or requesting a second opinion. On October 1, 2003, Morris returned the form to the Division with her signed agreement to the physical impairment rating and application for a permanent partial impairment award based on that rating. The Division issued its final determination granting the award on October 7, 2003.
[¶17] During the remaining months of 2003, Morris continued to complain of low back pain and numbness in her legs, and Dr. Narotzsky referred her to Dr. Tuenis Zondag, a pain management physician. Dr. Zondag obtained a history, conducted an examination, and provided the following assessment:
1. Postlaminectomy syndrome at the L5-S1 with fusion with footdrop on the left. On examination, Patient has atrophy and ...