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Hathaway v. State ex rel. Wyoming Workers' Safety and Compensation Div.

Supreme Court of Wyoming

January 24, 2014

In the Matter of the Worker's Compensation Claim of: Shirlene HATHAWAY, Appellant (Petitioner),

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Representing Appellant: Robert A. Nicholas, Nicholas Law Office, Cheyenne, Wyoming.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Samantha Caselli, Assistant Attorney General.

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

DAVIS, Justice.

[¶ 1] A score of years ago, Appellant Shirlene Hathaway was attacked by a patient and suffered modest physical injuries while working at the Wyoming State Hospital. Four years later, she was denied permanent total disability (PTD) benefits because maximum medical improvement had not been reached. She continued seeking medical treatment and then reapplied for PTD benefits in 2009. The Wyoming Workers' Safety and Compensation Division (Division) denied her second claim, and the Medical Commission held a contested case hearing. Based upon the evidence presented, a panel of the Medical Commission denied the subsequent

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application for PTD benefits, determining that Appellant had not met her burden of proving entitlement to those benefits under the Wyoming Workers' Compensation Act or the odd lot doctrine. It found that Appellant's only disabling condition was psychological and not related to any compensable physical injury, and that she was thus limited to six months of benefits, which she had already received. Appellant sought review of the Medical Commission's decision, and the district court affirmed. Finding no error, we also affirm.


[¶ 2] The overarching question in this appeal is whether the condition causing Appellant's disability is purely psychological, and not entirely or at least in part physical. We therefore restate the controlling issue as follows:

Is the Medical Commission's determination that Appellant was not entitled to PTD benefits because her disabling condition is solely psychological and not related to any compensable physical injury supported by substantial evidence and consistent with applicable law?


[¶ 3] On November 5, 1994, Appellant was injured while working as a psychiatric aide at the Wyoming State Hospital in Evanston, Wyoming. Her injuries were the result of an assault by an obese female patient, who, inter alia, hurled her to the ground, stomped on her, and threw her over a desk.

[¶ 4] After being attacked, Appellant managed to drive herself to the local county hospital where she was assessed, treated and discharged from the emergency room the same day. During this initial visit to the emergency room, Appellant complained of pain in the low back and left buttocks, but denied headaches, vision issues, chest or abdominal pain, or upper extremity trauma. The emergency room chart also states that Appellant's jaw showed " some crepitance of TMJs but no broken or loose teeth." The report noted that Appellant " has a past history of back injury in 1988 with chronic left hip and low back pain with numbness off and on chronically." Appellant was prescribed pain medication, discharged, and cleared to return to light-duty work.

[¶ 5] Two days later, Appellant returned to the emergency room for " recheck of her neck and back pains" and received an additional prescription for pain medication. According to the medical report, Appellant was also prescribed Paxil " for treatment of her chronic pain syndrome which dates back to 1988." A week later, Appellant returned to the emergency room where she was diagnosed with " [f]ully resolving myalgia with mild concussion secondary to trauma suffered 9 days ago." Based upon this evaluation, the treating physician advised her to check back in " about 7 days after going to physical therapy 2 more times ... [and she] will need to be excused from work ... with a date to be determined in the future depending on how [she] responds to rest, medication and physical therapy." Throughout the remainder of November 1994, Appellant underwent physical therapy and continued her periodic visits to the hospital. In early December of 1994, Appellant had two broken teeth repaired, which the dentist attributed to a " major blow" to the face.

[¶ 6] Appellant continued working at the State Hospital, but was terminated roughly one year after the assault. The State Hospital terminated her because she could not perform her job duties as a psychiatric technician or perform the duties of any other position available at the facility.

[¶ 7] Over the past two decades Appellant has seen numerous doctors for a plethora of psychological and physical problems. Our review of the record reveals that after her initial visits to the emergency room in November of 1994, Appellant has been examined or treated by well over ten different doctors for a variety of reasons. For ease of comprehension, we will distill the facts and detail only pertinent portions of Appellant's lengthy medical history during this time frame.

[¶ 8] Early on, Appellant was referred to physiatrist (physical rehabilitative medicine specialist) Dr. Corey Anden for diagnostic

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testing. In February of 1995, she reported to Dr. Anden that she had persistent pain in her neck, head and low back. The initial physical examination by Dr. Anden found that Appellant had approximately 50% of the normal range of motion in the lumbar, sacral and cervical areas. However, after reviewing subsequent MRI studies, Dr. Anden found " no significant abnormalities other than minimal bulging discs at C3-4, C6-7, L4-5, and L5 S1." Dr. Anden determined the MRI results to be " essentially unremarkable" and that at most Appellant suffered from " muscle tension and muscle strain." Dr. Anden also noted that if Appellant " refuse[d] psychological evaluation and treatment, I don't know that I can continue to treat her." Nevertheless, Appellant was referred for chiropractic evaluation and treatment,[1] and Dr. Anden's office scheduled Appellant an appointment at the University of Utah Pain Clinic. [2]

[¶ 9] Several months later, in June 1995, Dr. Anden found that Appellant had reached maximum medical improvement (MMI), and assigned a 7% whole person impairment rating.[3] She felt that Appellant could return to light level work and activities with lifting, sitting and other restrictions based on the degree of impairment.

[¶ 10] Also in June of 1995, Appellant underwent a comprehensive neuropsychological examination by Drs. Linda Gummow and Robert Conger to assess her cognitive and socio-emotional status related to the assault. The test results demonstrated she was in " pre-rehabilitation status" due to her physical symptoms, and she was assigned a 21% psychological impairment rating. These psychologists recommended continued chiropractic treatment, relaxation training for pain management, head trauma education to assist with anxiety, personal counseling for depression, participation in volunteer work, and possible referral to the Utah Pain Clinic.

[¶ 11] Throughout the next three years, Appellant continued to seek medical attention on a regular basis. In November of 1996, Dr. Anden determined that ongoing chiropractic care was no longer justified. She explained " that based on the objective evidence, there was not anything significantly wrong and in my opinion, she should be reassured that there is not something wrong; however, she is convinced and feels a need to find something wrong with her." Based upon their differences as to her diagnosis and care, Dr. Anden decided to stop treating Appellant.

[¶ 12] Dr. Michael Adams, a primary care physician, began treating Appellant in 1997. He diagnosed her with fibromyalgia and post-traumatic stress due to the attack at the State Hospital. In 1998, psychologist Dr. Gummow reevaluated Appellant, this time diagnosing mild head injury with pain disorder and also a mood disorder with depressive ...

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