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McIntosh v. State ex rel. Wyoming Workers' Safety and Compensation Division

Supreme Court of Wyoming

October 24, 2013

In the Matter of the Worker's Compensation Claim of Marty D. McINTOSH, Appellant (Petitioner),

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[Copyrighted Material Omitted]

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Representing Appellant: Margaret M. White of Karpan & White, P.C., Cheyenne, Wyoming.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Kelly Roseberry, Assistant Attorney General.

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

DAVIS, Justice.

[¶ 1] Appellant Marty D. McIntosh worked as a roustabout for Kissack Oil Field Service in Gillette, Wyoming. He sustained a second to third-degree burn to his right foot while he was steam cleaning a pumping unit. His injury was determined to be compensable and he received a 5% impairment rating. He later experienced right foot pain and difficulty standing and wearing work boots, and he therefore applied for permanent total disability (PTD) benefits. His claim was referred to a panel of the Medical Commission (" the Panel" or " the Commission" ) for a contested case hearing.

[¶ 2] The Commission concluded that McIntosh did not meet his burden of proving entitlement to PTD benefits under the odd lot doctrine. The district court affirmed. We hold that the Commission reasonably concluded that McIntosh did not prove that he was entitled to permanent total disability benefits under the odd lot doctrine, and that it did not otherwise err in its decision. We therefore affirm.


[¶ 3] The issues raised by this appeal are as follows:

1. Did the Commission adequately explain the rationale for its decision?
2. Does substantial evidence support the Commission's conclusion that McIntosh did not meet his burden of proving a prima facie case of odd lot treatment?
3. Did the Commission err in finding that McIntosh's preexisting conditions caused a significant portion of his symptoms?
4. Did the Commission err when it relied on the statements of two expert evaluators who suggested vocational rehabilitation?
5. Did the Commission act arbitrarily and capriciously because the Panel members examined McIntosh's right foot at the contested case hearing?


[¶ 4] McIntosh sustained a compensable injury to his right foot and ankle on August 11, 2006. He was working as a roustabout

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for Kissack Oil Field Service in the Gillette, Wyoming area. He was steam cleaning a pumping unit when he accidentally aimed the steam gun at his right foot while climbing onto the unit. The steam penetrated his boot and burned his foot. McIntosh filed an injury report, and the Wyoming Workers' Safety and Compensation Division (" the Division" ) opened a case for treatment of his right foot and ankle.

[¶ 5] McIntosh was treated and returned to light duty work, but by November of 2006 his work boots began to cause blisters in the injured area. This led him to see Dr. Robert Neuwirth, a primary care physician in Gillette. Dr. Neuwirth reported " an eschar [dead tissue that falls off of healthy skin] which measures about 5 x 3 cm" and " a complex burn [that] may require skin grafting." He found no evidence of cellulitis (bacterial skin infection) or abnormal sensations in the lower extremities. He prescribed medication, and recommended that McIntosh stop working because he could not wear work boots as required by his job.

[¶ 6] Rapid City plastic surgeon Dr. Richard Carver performed a skin graft on McIntosh's right foot in December of 2006. By June of 2007, this graft began to break down, leading Dr. Carver to perform another graft in July of 2007. That graft is still in place.

[¶ 7] McIntosh began seeing primary care physician Dr. Farrukh Javaid for further burn and wound treatment in March of 2008. Dr. Javaid's initial physical examination indicated no swelling in the right foot, but he noted that McIntosh reported extensive pain and numbness in his legs and feet. Dr. Javaid believed the pain was " [m]ost likely ... related to diabetic neuropathy [diabetes-related damage to nerves of the peripheral nervous system]," but that it could also be related to the burn and subsequent skin grafts. McIntosh returned to work in May of 2008, but continued to report persistent pain and swelling in his right foot, which was aggravated by standing and wearing work boots.

[¶ 8] Dr. Robert Finley, a Rapid City neurologist, performed a comprehensive neurological evaluation on McIntosh in August of 2008. A physical examination indicated normal reflexes and strength in the lower extremities, and normal neurological findings overall. An EMG/nerve conduction test indicated mild diabetic neuropathy. Dr. Finley believed that diabetic neuropathy contributed to the degree of pain McIntosh suffered in his lower extremities.

[¶ 9] McIntosh stopped working in December of 2008 when his long-time employer reluctantly discharged him because he was not able to report to work regularly. He continued to complain of persistent neuropathic pain while standing and walking. From late 2008 to early 2009, his treating physicians consistently attributed his complaints to peripheral neuropathy caused by diabetes as well as the work injury. However, Dr. Craig Mills, a pain management physician with Dr. Finley's practice, performed a physical examination on November 19, 2008, and found good coordination, good muscle strength, and normal gait.

[¶ 10] In late 2009, McIntosh obtained impairment ratings from two independent physicians. Dr. Lawrence Splitter is a certified independent medical examiner from Billings, Montana. He reported a well-healed skin graft with maximum medical improvement, with a history of diabetes with peripheral neuropathy. He assigned a 5% whole body impairment rating and reported that McIntosh was capable of light duty work.

[¶ 11] Laramie pain management physician Dr. Michael Kaplan generally agreed with Dr. Splitter's impressions and conclusions, including the 5% impairment rating, but he also found some numbness in the area of the skin graft. Dr. Kaplan concluded that " [t]he patient has no motion restrictions at this time, but he is still symptomatic relevant to the sensations in the foot, with an intolerance for tight supportive shoewear and for sustained standing relevant to the foot and ankle." Dr. Kaplan believed that McIntosh could continue working in the oil fields, but only in a position in which he could avoid prolonged standing.[1]

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[¶ 12] McIntosh continued to see Dr. Javaid for pain management and diabetic treatment. In February and March of 2010, Dr. Javaid charted swelling and increased pain in the right foot, which he concluded was likely related to both the work injury and diabetes. A compressive venous ultrasound was read as normal, but x-rays demonstrated subcutaneous soft tissue swelling and degenerative changes in McIntosh's right foot. In April and May of 2010, Dr. Javaid noted reduced swelling, but also recorded that McIntosh continued to have pain in his right foot. Dr. Javaid's notes from October and November 2010 indicated numbness in the area of the skin graft, but no significant swelling.

[¶ 13] McIntosh applied to the Division for permanent total disability benefits in September 2010. Dr. Javaid completed the PTD certification, in which he diagnosed neuropathy caused by a third-degree burn in the right foot, with pain, numbness, and swelling. According to the certification, McIntosh's pain was frequent enough to interfere with his attention and concentration, and his condition severely limited his ability to return to gainful employment. Dr. Javaid concluded that McIntosh could only stand for one hour in a work day, and that his impairments would produce " bad days" four to six days a week. Dr. Javaid believed that vocational training would help McIntosh obtain sedentary employment.

[¶ 14] The Division asked McIntosh to undergo an independent medical evaluation and a functional capacity evaluation, which he did. Gillette physical therapist Todd Gentzler performed the functional capacity evaluation [2] (FCE) in November of 2010. Mr. Gentzler reported an " outstanding" level of effort during strength and endurance testing, but also found that there were also some indicators of pain exaggeration and " inappropriate illness behavior."

[¶ 15] Mr. Gentzler concluded that McIntosh was capable of returning to work:

The above results indicate Mr. McIntosh qualifies to work at the HEAVY work classification consistently over the course of two day[s] while doing an FCE. His biggest limiting factor is his back, the weakness and increased back pain that he suffers from. He was fused approximately 8 years ago, however he has never done any kind of rehab or anything of this nature to improve his status.... He gave a valid effort both days and his heart rate criteria exceeded the expectations indicating this. I feel that Mr. McIntosh with more training or DVR would be more beneficial for his success in the work force.

However, Mr. Gentzler also found that " it would be safer for him and he would have [a] higher success rate if he worked at the MEDIUM work classification for a while until he got used to the heavier work class."

[¶ 16] Dr. Anne MacGuire, a Casper rheumatologist, performed the independent medical evaluation (IME) in February of 2011. Her report indicated that McIntosh was able to sit, stand, and walk about the examination room without difficulty, but that he was not able to squat to more than 80% due to stiffness. Calf measurements on the right and left were equal, and there was no evidence of pain exaggeration or symptom magnification. Dr. MacGuire also reviewed all of McIntosh's injury-related medical records to the date of her examination.

[¶ 17] She found that McIntosh was not totally and permanently disabled because of the work injury:

This individual sustained a 2 x 1 cm full-thickness burn to the lateral aspect of his

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right ankle. This by no mean[s] permanently impairs him. He does have other medical issues that in my mind make it difficult for him to return to roughnecking specifically the blindness in the left eye, loss of a finger, back surgery, and ongoing diabetes....
This injury by itself should not in any way affect his ability to return to full and active duty as a roustabout. However, his diabetes I believe is the largest issue.
It is my recommendation this individual change occupation and finds [sic] something where he is not at risk for being burned. If he can work in an oil field in a situation where his extremities are not at risk for burns or other temperature changes then there would be no reason why he could not return to that type of work. I believe the diabetes is the single most important issue.

[¶ 18] Shortly after Dr. Maguire's evaluation was completed, the Division determined that McIntosh's condition did not meet the statutory definition of permanent total disability. See Wyo. Stat. Ann. § 27-14-102(a)(xvi) (LexisNexis 2011) (" ‘ Permanent total disability’ means the loss of use of the body as a whole or any permanent injury certified under W.S. 27-14-406, which permanently incapacitates the employee from performing work at any gainful occupation for which he is reasonably suited by experience or training." ). McIntosh objected to the determination and timely requested a contested case hearing. The case was then referred to a panel of the Wyoming Medical Commission for hearing.

[¶ 19] In early December of 2011, before the hearing took place, McIntosh saw Dr. John Mansell, a Gillette pain management specialist. Dr. Mansell reported right foot pain with edema and " dusky" skin, reflex sympathetic dystrophy (symptoms including tenderness, swelling, and pain, as well as burning pain) of the lower limb, and peripheral vein insufficiency. A CT angiogram (fluoroscopic imaging of blood flow within arteries) showed no vascular compromise of the right lower leg. The imaging study report reflected some swelling in the right lower leg and lateral left ankle, but there were no blood clots.

[¶ 20] McIntosh was also evaluated by a vocational expert in December of 2011 at the request of his attorney. Jerry Gravatt, M.A., a certified vocational rehabilitation counselor, noted that McIntosh was forty-six years old at the time, and that he had not completed high school. He also had a history of ADHD and low scores in general aptitude tests. Mr. Gravatt concluded that McIntosh would not be a candidate for formal educational programs. Most of his work history consisted of roustabout and other physically demanding positions in the oil fields, but Gravatt believed that he had acquired some transferrable skills from his work experience.

[¶ 21] Mr. Gravatt concluded that McIntosh was still capable of light to medium duty work. He conducted a labor market survey of suitable positions in the Gillette area, and concluded as follows:

One job opening was listed that would fall within the transferable skills of Mr. McIntosh.

• Welder, TSI [Tri-State Industries, Inc.] ... Salary DOE

There are few employment opportunities listed which would fall within the qualifications and restrictions of Mr. McIntosh. Those that do exist require experience or ...

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