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

Supreme Court of Wyoming

February 21, 2014

Deana V. LANDWEHR, a/k/a Deana Streubing, Appellant (Petitioner),

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[Copyrighted Material Omitted]

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Representing Appellant: Dana J. Lent, Attorney at Law, Torrington, Wyoming.

Representing Appellee: Peter K. Michael, Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Brenda S. Yamaji, Assistant Attorney General.

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

BURKE, Justice.

[¶ 1] The Wyoming Workers' Safety and Compensation Division awarded benefits to Appellant, Deana Landwehr, after she experienced a workplace injury to her back in 1999. In 2008, Ms. Landwehr experienced a second workplace injury while employed in Nebraska. In 2010, Ms. Landwehr sought payment for prescription medication that she claimed was necessary treatment relating to her 1999 workplace injury. The Division denied the claim. Ms. Landwehr requested a contested case hearing, and the hearing examiner upheld the Division's denial of benefits. Ms. Landwehr appealed to the district court, which affirmed the hearing examiner's order. She challenges the district court's decision in this appeal. We affirm.


[¶ 2] Ms. Landwehr presents the following issue:

Was the hearing examiner's determination that Appellant failed to satisfy her burden of proof unsupported by substantial evidence in the record as a whole?

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[¶ 3] In August, 1999, Ms. Landwehr sustained a work-related injury while working as a nursing assistant for Cheyenne Health Care Center. Ms. Landwehr hurt her back when she attempted to lift a patient from her wheelchair. Six days later, she sought medical treatment at a primary care clinic, where she reported mid-back pain and " an associated extremity numbness and tingling ... intermittent with this pain." Dr. John J. Viola saw Ms. Landwehr approximately three weeks later for a neurosurgical consultation. After performing a physical examination, Dr. Viola concluded that Ms. Landwehr " has predominantly elements of a thoracic strain" and that physical therapy would likely be the most appropriate treatment.

[¶ 4] In September, 1999, Dr. Viola ordered an MRI of Ms. Landwehr's back, which revealed the following findings:

The alignment of the thoracic spine is normal. There is normal bone marrow signal in each vertebral body with no evidence of hemorrhage or bone marrow replacement. There is mild disc space narrowing in the mid thoracic spine at T6-7, T7-8, and T8-9 but no evidence of disc herniation or thecal sac impingement. No impingement of the thoracic spinal cord. The cord is normal in size and signal at all points and no posterior abnormalities or paravertebral abnormalities.

In the " Impression" section of the report, it was noted that there were " No focal findings to explain mid back pain." At a follow-up visit on September 10, Dr. Viola noted that Ms. Landwehr's symptoms had " neither improved nor worsened."

[¶ 5] Ms. Landwehr began participating in a physical therapy program, and, after an evaluation on October 1, Dr. Viola noted that she was " making progress in physical therapy." In a progress note dated November 3, Ms. Landwehr's physical therapist noted that her " primary complaints continue to be focused in the thoracic spine." However, after Dr. Viola evaluated Ms. Landwehr in December, he noted for the first time that she was having neck pain and headaches in addition to numbness in her right hand. Dr. Viola referred Ms. Landwehr to Dr. Harlan R. Ribnik, a pain management physician, who ordered another MRI of Ms. Landwehr's back. That MRI also revealed that " Disc height and disc signal intensity is normal at every level." The " Impression" section of the MRI report stated that there was " No [magnetic resonance] evidence of focal cervical disc herniation to explain the neck pain" and " no evidence of a C5-C6 disc herniation." Dr. Ribnik gave Ms. Landwehr a cervical epidural steroid injection on January 6, 2000, but she received " minimal, if any relief from her pain." As a result of her injury, Ms. Landwehr received temporary total disability benefits from the Division. After those benefits expired, she went back to work as a unit secretary.

[¶ 6] In June, 2000, Dr. Viola referred Ms. Landwehr to Dr. Reed Shafer, who conducted an electrodiagnostic study of Ms. Landwehr's upper extremities. The nerve study revealed that Ms. Landwehr " does not have evidence of primary muscle disease or nerve root problems" but that she " certainly does have evidence of median neuropathy at the level of the wrist, compatible with her clinical carpal tunnel syndrome." At a follow-up visit, Dr. Viola diagnosed Ms. Landwehr with " carpal tunnel syndrome right greater than left." Dr. Viola stated that " it is reasonable for [Ms. Landwehr] to consider surgical release of her carpal tunnel syndrome" and noted that Ms. Landwehr indicated her willingness to proceed with the necessary surgery. There is no indication in the record, however, that Ms. Landwehr ever opted to undergo surgery to treat her carpal tunnel syndrome. Dr. Viola prescribed Celebrex to relieve Ms. Landwehr's carpal tunnel symptoms. In September, 2000, Ms. Landwehr received a 12% whole body impairment rating as a result of her workplace injury, and the Division awarded permanent partial impairment benefits to Ms. Landwehr.

[¶ 7] Over the next several years, Ms. Landwehr continued to report " neck, shoulder, [and] right upper extremity pain," as well as headaches, to multiple treating physicians. In 2003, her primary care physician, Dr. Jeanette Larson, diagnosed her with fibromyalgia, which she treated with various prescription medications, including Flexeril,

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Neurontin, and Tramadol. In 2004, Ms. Landwehr moved to Ogallala, Nebraska, but she continued to see Dr. Ribnik on a semi-annual basis until April, 2005 when, according to Ms. Landwehr, he refused to see her or refer her to another doctor.

[¶ 8] In September, 2006, Ms. Landwehr saw Dr. Kurt Hopfensperger in Cheyenne for a neurologic consultation. In his report of the evaluation, Dr. Hopfensperger noted that a review of Ms. Landwehr's systems revealed, among other ailments, " fatigue, chronic sinus drainage, frequent headaches, lightheadedness, numbness and tingling, joint pain, joint stiffness, muscle weakness, muscle pain, back pain, cold extremities, difficulty walking, peptic ulcer, nervousness, insomnia, [and] depression[.]" Although Dr. Hopfensperger was unable to diagnose any specific disease or disorder based on Ms. Landwehr's symptoms, he prescribed duloxetine (Cymbalta) to treat Ms. Landwehr's headaches and the symptoms in her extremities. Dr. Hopfensperger ordered an MRI of Ms. Landwehr's thoracic spine, which revealed that " Thoracic marrow signal intensity is normal. There is no significant canal stenosis. No significant disc herniations are identified." After a follow-up visit in April, 2007, Dr. Hopfensperger noted that Ms. Landwehr had stated that the duloxetine was " working good," but that she " continues however to have neck and back pain, as well as tingling in her upper extremities distally." He noted that " Regarding her neck and back pain, I do not [have] anything to offer this patient." After determining that Ms. Landwehr's MRI was " negative," Dr. Hopfensperger ordered a nerve conduction study. That study revealed, similar to the previous nerve conduction study ordered by Dr. Viola, that Ms. Landwehr had " [a]dvanced right carpal tunnel syndrome" and " [m]oderate left carpal tunnel syndrome."

[¶ 9] In January, 2008, Ms. Landwehr experienced a second work-related injury while employed in the bakery at a grocery store in Nebraska. According to Ms. Landwehr, she was injured when a ten-pound muffin pan fell from a drying rack and struck her on the head, shoulder, and shin. She experienced severe headaches, nausea, vomiting, dizziness, and confusion as a result of her injury. After this incident, Ms. Landwehr sought treatment at the Sandhills District Health Clinic, where she was seen by Nurse Frankie Cordova. Nurse Cordova noted that " Patient is being seen here today for headaches. She was hit in the head with a tin pan and she thinks maybe that is what is causing them." Ms. Landwehr controlled her pain with prescription medication until her headaches returned in March, 2008. At that point, Nurse Cordova ordered an MRI, but the results were " unremarkable." Ms. Landwehr was subsequently referred to a neurologist in Nebraska, but no notes from that visit are contained in the record. In April, Ms. Landwehr saw Dr. Hopfensperger for her annual follow-up visit. Dr. Hopfensperger's notes from that visit provide, in relevant part, as follows:

Ms. Landwehr returns for annual follow-up today. She found that Cymbalta was " doing great" for her pain until several months ago when she was struck by a 10 pound muffin [pan] at work, and was hit in [the] head. She was diagnosed by her physician as having whiplash, and was prescribed Neurontin and Midrin for headaches. She also tried Lyrica which was of no benefit. She tells me that her physician is sending her to another neurologist in North Platte, Nebraska to workup a possible new neck injury related to a work injury.
This patient was sent to me for various issues related to workers comp injury and I have treated her with Cymbalta with some success. She is now being apparently referred by her primary physician to another neurologist in Nebraska. I refilled her Cymbalta as it has worked for her, and my guess is this other neurologist will therefore workup any further issues. I will see her back in a year if she is still taking the Cymbalta prescribed by this office, but otherwise she does not need to return to this office. This was discussed with patient and she is in agreement.

Ms. Landwehr filed a worker's compensation claim in Nebraska relating to her 2008 injury and ...

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