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In the Matter of the Worker's Compensation Claims of v. State of Wyoming Ex Rel. Wyoming Workers' Safety and Compensation

July 3, 2012

IN THE MATTER OF THE WORKER'S COMPENSATION CLAIMS OF: RYAN DORMAN, AN EMPLOYEE OF MELEHES BROTHERS, INC., APPELLANT (PETITIONER/CLAIMANT),
v.
STATE OF WYOMING EX REL. WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, APPELLEE (RESPONDENT/OBJECTOR).



Appeal from the District Court of Teton County The Honorable Timothy C. Day, 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] This appeal arises out of Ryan Dorman's petition for an extension of his worker's compensation temporary total disability (TTD) benefits and for reimbursement of travel expenses incurred in travelling from Idaho to Cheyenne, Wyoming, to obtain medical care. The Wyoming Workers' Compensation Division (Division) denied those benefits, and that denial was upheld by the Office of Administrative Hearings (OAH) and the district court. We affirm.

ISSUES

[¶2] Ryan Dorman (Dorman) presents the following issues on appeal:

I. Whether the Office of Administrative Hearing's decision and affirmation thereof by the district court, that Mr. Dorman is not entitled to receive additional temporary total disability benefits was arbitrary and capricious, as well as not supported by the substantial evidence presented at the hearing and case law.

II. Whether the Office of Administrative Hearing's decision and affirmation thereof by the district court that Mr. Dorman is not entitled to reimbursement for travel to and from visits with Dr. Beer was arbitrary and capricious and not supported by the substantial evidence presented at the hearing and case law.

FACTS

[¶3] On June 23, 2005, Dorman, then a construction foreman for Melehes Brothers, Inc. of Alta, Wyoming, injured his back while lifting concrete panels. He sought medical care initially from a chiropractor in Jackson, Wyoming, and then continued his treatment with Dr. Morgan Barkdull, a chiropractor in Driggs, Idaho, which was closer to his home in Victor, Idaho. Both chiropractors originally diagnosed Dorman's injury as a "sprain/strain" of his thoracic spine.

[¶4] On June 30, 2005, after Dorman had experienced no improvement in his pain, Dr. Barkdull referred him to Dr. Scott Thomas, a medical doctor in Driggs. Dr. Thomas ordered x-rays, which revealed no fractures, and he injected trigger points with cortisone. On July 26, 2005, noting Dorman's continued improvement, Dr. Barkdull modified Dorman's disability certification to allow a return to light duty work with no twisting or lifting.

[¶5] On August 1, 2005, the Division notified Dorman that he had been awarded TTD benefits, but that those benefits were terminated as of July 27, 2005, due to his ability to return to work. In October 2005, the Division issued final determinations notifying Dorman that it would no longer approve payment of medical bills or TTD benefits because Dorman's work injury had resolved. Dorman appealed, and the Division's determinations were reviewed by the OAH and district court.

[¶6] While Dorman's first contested case was pending, in May 2006, Dorman sought treatment from Dr. Grant Walker of the Idaho Spine Center. Dr. Walker observed "a central compression fracture at approximately the T-3 level along with an extensive soft tissue edema at T-2, including inflammation and inflammatory fluids that tracked between the bones posteriorly." Dr. Walker diagnosed a flexion/distraction injury, and during the first contested case, testified:

The flexion and distraction injuries or what we'll call a soft-tissue chance injury, consists of the force exiting out posteriorly in the ligaments, through the ligaments that connect the vertebra together. These tears can be classified as a third-degree sprain or complete disruption of the ligament. In these flexion/distraction injuries where the bone sustains a majority of the force, once the bone heals, the patients get better. In this type of a case, the central portion of the vertebra acts as the pivot point. So as the front goes down, the back goes up. And the soft tissue damage has been shown throughout the literature, throughout many years to cause continued pain symptoms if left untreated, unstabilized.

[¶7] Dorman remained under Dr. Walker's care until the summer of 2009, when Dr. Walker retired. Following an examination on March 12, 2009, Dr. Walker recorded the following treatment plan:

If we did surgery on the patient today, he would be off his construction job and on restrictions for 1 year. Therefore, I will renew his total temporary disability benefits form for 12 months from today's date.

[¶8] In the final treatment note from Dr. Walker, dated July 10, 2009, Dr. Walker recorded the following observations:

SUBJECTIVE: Mr. Dorman is being seen in follow-up. He still continues to have the same complaints. His pain on average is a 5/10 and on the bad days of which he has had several in the last 2 weeks, it can get up to 9/10. He is not working.

I think for an injury that is now 4 years old, the greatest single deciding piece of information is the fact Mr. Dorman is still very symptomatic. A soft tissue injury that would result in just a sprain or strain of the paraspinal muscles would not cause this amount of symptomatology for years out.

PLAN: My plan is that the patient still needs surgical stabilization and that he should not work. I do not think he is capable of working.

[¶9] On August 29, 2009, Dorman submitted a Request for Change of Health Care Provider to the Division, requesting that his physician of record be changed from Dr. Walker to Dr. Lynn Stromberg of Idaho Falls, Idaho. The reason provided for the change was Dr. Walker's retirement. On October 6, 2009, Dorman withdrew his request to have Dr. Stromberg approved as his physician of record and informed the Division that Dr. Stromberg had declined to take his case.

[¶10] On October 20, 2009, Dorman submitted another Request for Change of Health Care Provider, this time requesting that Dr. Robert Cach of Idaho Falls, Idaho, be designated his physician of record. On October 23, 2009, the Division issued a final determination approving Dr. Cach as Dorman's physician of record.

[¶11] Dorman saw Dr. Cach on October 20, 2009, and Dr. Cach noted complaints of neck pain and T-spine pain. Dr. Cach ordered MRIs of the cervical and thoracic spine. The MRI of the cervical spine showed:

1. Mild left neural foraminal narrowing at C4-5 due to uncovertebral joint osteophyte.

2. Mild bilateral neural foraminal narrowing at C5-6 due to uncovertebral joint osteophyte.

3. There is mild reversal of the lordotic curvature in the cervical spine at approximately the C4-5 level. This effaces the anterior thecal sac at this level but does not produce spinal stenosis.

The MRI of the thoracic spine showed:

1. Mild degenerative endplate spurring at multiple levels as detailed above.

2. Tiny right paracentral disc protrusion at T3-4, which does not produce spinal stenosis or significantly deform the thoracic cord.

[¶12] On November 3, 2009, Dr. Cach reviewed the MRI results and entered the following treatment note in Dorman's chart:

I have reviewed the new MRI's and feel no surgical intervention on his neck or T-spine is indicated. I have recommended he be seen by chronic pain management.

[ΒΆ13] On December 7, 2009, Dorman submitted another Request for Change of Health Care Provider to the Division. Dorman requested that his physician of record be changed from Dr. Cach to Dr. Steven Beer of Cheyenne, Wyoming. In requesting the physician change, Dorman stated that the request was not for a second opinion but because "Dr. Cach stated this is outside of his scope of expertise." On December 14, 2009, the Division issued a final determination approving Dr. Beer as Dorman's physician of ...


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