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In re Worker's Compensation Claim of Green

Supreme Court of Wyoming

July 9, 2013


Appeal from the District Court of Campbell County The Honorable John R. Perry, Judge

Representing Appellant: James R. Salisbury of Riske & Salisbury, P.C., Cheyenne, WY.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; and Mattias L. Sayer, Assistant Attorney General.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

HILL, Justice.

[¶1] David Green (Green) suffered a work-related injury to his lumbar spine in 2004 and received workers' compensation benefits for that injury. After surgery and reaching maximum medical improvement in 2005, Green accepted compensation for a 21% whole body permanent partial impairment (PPI). In 2010, following increased back pain, Green underwent additional surgery to his lumbar spine, for which he again received medical and temporary total disability (TTD) benefits. After reaching maximum medical improvement following the 2010 surgery, Green was again evaluated for a whole body PPI rating. The final rating was a 7% whole body PPI.

[¶2] Because the 2010 PPI evaluation resulted in a rating that was less than the 2005 rating, the Wyoming Workers' Compensation Division (Division) issued a final determination denying a PPI award beyond the 21% already paid. Green appealed the Division's determination to the Wyoming Medical Commission (Commission). The Commission upheld the Division's determination, and the district court affirmed the Commission's decision. On appeal to this Court, Green argues that the Commission's decision is not in accordance with law, is not supported by substantial evidence, and is arbitrary and capricious. We affirm.


[¶3] Green states the issues for our review as follows:

A. Whether the Hearing Panel committed an error of law in its application of Wyoming Statute § 27-14-405(f) and (g) in denying [Green] permanent partial impairment benefits.
B. Whether the Hearing Panel Order is supported by substantial evidence and produces an arbitrary and capricious result to deny [Green] permanent partial impairment benefits.


[¶4] Green suffered a work-related injury to his lower back on April 25, 2004, which was diagnosed as an L4-L5 disc herniation with severe radiculopathy. Dr. Lawrence Jenkins, Green's treating physician, noted the following concerning Green's condition in July 2004:

This patient is 2 months out from an injury. He has underlying L4 spondylolysis pre-disposing him to injury to this disc, which occurred in the fall. He has severe ongoing radiculopathy which was not responsive to a single epidural that was done at L3-4. This patient has just started physical therapy, and I would like him to proceed with that over the next couple of weeks, to see if it will make a difference, however, it appears that he may require surgery. I think the only surgery to consider in his case would be a L4-5 fusion, given the L4 spondylolysis and the potential for further instability following a straight laminotomy. He will be re-evaluated in 2 weeks.

[¶5] Following a 2004 lumbar fusion surgery and a second surgery in 2005 to remove hardware, Dr. Jenkins, on September 29, 2005, reported to the Division that Green was deemed at ascertainable loss and was ratable for PPI benefits. Dr. Michael Kaplan conducted an independent medical examination of Green, and on October 20, 2005, issued an Impairment Rating. Dr. Kaplan confirmed that Green had reached maximum medical improvement, and he rated Green's impairment at the "21% whole person impairment level." In so rating Green's impairment, Dr. Kaplan commented, in part:

Status post work-related injury involving the lumbosacral spine, ultimately diagnosed with bilateral L4 spondylolysis with instability, symptomatic, with a L4-5 and L5-S1 painful disc syndrome. The patient had additional observed anomalous L5-S1 anatomy with absent right S1 lamina and pedicle. Therefore his hardware system was modified, at the time of his fusion.
He is fused from L4 through S1, and he had his hardware removed. Posterior iliac crest bone marrow was utilized for the Healos and Cellect system. The patient is reasonably pleased with his status, aside from some of the morning stiffness.
Under these circumstances given the accuracy and alternative methodology with the DRE lumbar spine calculation, I believe it is in far greater fairness to the patient to consider Table 15-3 on page 384. He has a category IV relevant to the successful surgical arthrodesis. Given his results and overall status, I would consider him at the 21% whole person impairment level.[1]
The patient's history, examination findings, and diagnoses are as summarized. He is at the point of maximum medical improvement. It is unlikely that he should continue working full duty in the oil fields, given the lower likelihood that he will be capable of sustaining the stressors over the next 20 plus years pertaining to the exertion and the risk factors as such.
He will retrain into a lighter field, it is not apparent that he needs a Functional Capacity Evaluation. I would predict that he may do quite reasonably well in a medium duty job, avoiding prolonged intervals of flexion, twisting, and lifting in the medium or greater capacity. He should also generally execute a change of position several times during the day for comfort. He should do quite well. I have no other recommendations.

[¶6] On November 4, 2005, the Division issued a Notice of Permanent Partial Impairment Rating, which notified Green that "the permanent partial impairment of 21% for your whole body has been calculated to be $15, 002.34." The notice further advised Green that he could accept the award or contest the award if he disagreed with the rating. On November 7, 2005, the Division received Green's response agreeing to the impairment rating and accepting the PPI award.

[¶7] In July 2010, Green returned to Dr. Jenkins with reports of progressive pain in his back and both legs. Dr. Jenkins reported to the Division that Green's "MRI scan reveals a slight bulge at L3-4 with some posterior element hypertrophy, creating some moderate central stenosis. L2-3 shows disc degeneration. The areas within the fusion themselves look good." On September 2, 2010, Dr. Jenkins reported to the Division his impression that Green was suffering from "post fusion syndrome, junctional stenosis of L3-4." On October 18, 2010, Green underwent surgery, which included an L3 laminectomy, an L3-4 posterior lumbar interbody fusion (PLIF), an L3-4 and L4-5 posterolateral transverse process fusion, a discectomy, and the implanting of structural hardware to support the affected areas.

[¶8] The Division did not dispute that Green's 2010 surgery was related to his original 2004 work injury, and Green received both medical and TTD benefits for the 2010 surgery. On March 14, 2011, the Division requested that Dr. Jenkins evaluate Green's continuing need for TTD benefits and advise the Division whether Green had reached maximum medical improvement. Dr. Jenkins responded that Green had not yet reached maximum medical improvement from his 2010 surgery but was expected to by May 1, 2011.

[¶9] On May 4, 2011, on the Division's referral, Dr. Anne MacGuire performed an independent medical examination of Green for the purpose of establishing his PPI rating. Relying on the AMA Guides to the Evaluation of Permanent Impairment, 6th edition, Dr. MacGuire concluded that based on the three-level ...

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