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In re Worker's Comp. Claim of Hirsch

Supreme Court of Wyoming

May 12, 2014

IN THE MATTER OF THE WORKER'S COMPENSATION CLAIM OF: CHRISTINA S. HIRSCH, AN EMPLOYEE OF BORDER FOODS, 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.

For Appellant: Jack D. Edwards, Edwards Law Office, P.C., Etna, Wyoming.

For 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, DAVIS, and FOX, JJ., and WALDRIP, D.J.

OPINION

Page 1108

DAVIS, Justice.

[¶1] Appellant Christina Hirsch sought worker's compensation benefits for back pain she believed was related to an earlier workplace accident. The Office of Administrative Hearings (OAH) upheld the Wyoming Workers' Safety and Compensation Division's (Division) denial of temporary total disability and medical pay benefits, and the district court affirmed the OAH decision. Ms. Hirsch appeals to this Court, claiming that the OAH erred by failing to find a causal

Page 1109

connection between the workplace accident and her delayed back pain.[1] We affirm.

ISSUES

[¶2] While Ms. Hirsch raises several issues on appeal, we find the dispositive question to be whether there is substantial evidence to support the OAH's denial of benefits before a remand from the district court for supplementation of the record. We therefore restate the controlling issue as follows:

Were the OAH's Findings of Fact, Conclusions of Law, and Order contrary to the overwhelming weight of the evidence?

FACTS

[¶3] In 2003, Ms. Hirsch slipped while working for Taco Bell in Gillette, Wyoming. She felt immediate back pain and soon had numbness in her left leg, as well as urinary incontinence. As a result, an emergency laminotomy and discectomy were performed at the L5-S1 levels of Ms. Hirsch's lumbar spine on November 6, 2003. The initial surgery alleviated her symptoms somewhat, but pain and incontinence returned soon thereafter, necessitating a follow-up procedure on March 26, 2004. After her second surgery, Ms. Hirsch was pain-free and had no problems with bladder control.

[¶4] In August of 2004, Ms. Hirsch again fell at work and strained her back. Although she experienced lower back pain, she had neither numbness nor loss of bladder control. A Wyoming worker's compensation claim was opened and benefits were awarded. Ms. Hirsch participated in physical therapy throughout the remainder of 2004.

[¶5] Things were going well until she slipped and fell again while leaving work on December 20, 2004. According to a physician's note reflecting a visit two days later, Ms. Hirsch had pain in her back and tailbone region with numbness in her right leg. She reported that she still had occasional episodes of incontinence, which, according to the treating doctor, " stem back to her original large disc herniation and presumed cauda equina syndrome." A radiologist's report concerning an MRI conducted on December 27, 2004, found no evidence of recurrent disc herniation at L5-S1, but it did note loss of disc height and endplate degenerative change.

[¶6] From the end of 2004, Ms. Hirsch was generally pain-free and asymptomatic until 2009. On May 17, 2009, she slipped and fell while working at a Taco Bell restaurant in Jackson, Wyoming. At the hearing before the OAH, she testified[2] that

I went to hand an order out and go back to make a new order, and that's when I slipped and my foot went behind me. And I tried to catch myself on a rolling table that had a Quesadilla machine on it. I did go to the ground. It did hurt, but I got up and continued to make orders because we got really busy.
When it slowed down, I went to the lobby to look at my foot and that's when it was swollen and blue and purple and huge.

The only pain that Ms. Hirsch described feeling at the time of the incident was that her " whole right leg hurt" and that her ankle was " killing" her.

[¶7] After finishing her shift, Ms. Hirsch went to the local hospital emergency room, where orthopedic surgeon David Khoury treated her ankle injury. Dr. Khoury diagnosed Ms. Hirsch with an ankle " sprain," and over the next several months treated her with " four different casts, a couple of boots, and . . . crutches."

Page 1110

[¶8] Ms. Hirsch was eventually referred to orthopedic surgeon and ankle specialist Dr. Heidi Michelsen-Jost for further treatment. While being treated by Dr. Jost, she complained of severe right ankle and lower leg pain, which she described as aching, numbing, shooting and tingling. Dr. Jost then referred her to Dr. Philip Blum, an anesthesiologist who specializes in pain management.

[¶9] Dr. Blum first examined Ms. Hirsch on July 17, 2009, at which time she complained only of ankle and lower leg pain, and not of back pain. He recommended lumbar sympathetic nerve block treatments. He administered nine sympathetic block treatments over several months. These caused serious pain at the injection site in her back, as well as incontinence which started after the third injection, according to Ms. Hirsch.

[¶10] Dr. Jost eventually determined that Ms. Hirsch's ankle required reconstructive surgery, which she performed on August 18, 2009.[3] The ankle was cast after the surgery, and Ms. Hirsch began physical therapy several weeks later. A second surgery to remove hardware installed in the ankle was performed in November of 2009.

[¶11] Ms. Hirsch applied for medical benefits and temporary total disability payments related to her right ankle injury. The Division found that the ankle injury was compensable and approved the benefits, opening a 2009 file which was separate from the file it had opened in 2004 for her back injury. Ms. Hirsch was released to return to work after her ankle injury on April 30, 2010.

[¶12] Months after her ankle surgeries, Ms. Hirsch began to experience back pain. While she contends that certain records[4] reflect implied or indirect complaints of back pain, the record in which that pain was first clearly documented was dated December 17, 2009, seven months after the May 2009 incident. Dr. Jost referred Ms. Hirsch to Dr. Geoffrey Skene, D.O., a specialist in physical and rehabilitative medicine, and his clinical note of December 17 states that her chief complaints at the time were " low back and (L) leg pain." Dr. Skene summarized Ms. Hirsch's history of prior back injuries/surgeries and episodes of incontinence as well as her right ankle injury and treatment, and went on to note that:

[Ms. Hirsch] notes that she has had [a] return of her back pain with one episode of urinary incontinence. In regards to symptoms, [Ms. Hirsch] describes pain in mid low back, (L) greater than ® . She notes it radiates in (L) lateral thigh and calf to the ankle. She notes numbness and tingling in her distal thigh and proximal calf occasionally in her toes. She notes her symptoms are worse with coughing, sneezing, and " sitting funny" and getting out of bed, improves with lying flat. She had one episode of urinary incontinence.

[¶13] Dr. Skene conducted a physical examination and found that Ms. Hirsch's gait was somewhat antalgic (the stance phase of the gait was shortened in relation to the swing phase in order to reduce pain), that there was tenderness to palpation in the left lumbar area, and that she had lower lumbar pain with extension and rotation bilaterally. His assessment was " [r]ecurrent HNP [herniated nucleus pulposus -- i.e., herniated disc] L5-S1 . . . [with] one episode of urinary incontinence." Based upon his evaluation, Dr. Skene recommended an MRI. The MRI showed:

o Disc extrusion and overall mild narrowing of the central spinal canal at T12-L1.
o No specific abnormalities at L1-2 and L2-3.
o Small central protrusion at L3-4.
o Mild broad-based bulging of disc at L4-5, with degenerative spurring off the facet joints. There is no stenosis.
o At L5-S1, there was disc space narrowing with endplate irregularity and Modic endplate-type signal changes suggestive

Page 1111

of degenerative changes, persistent posterior ridging and disc bulge (lateral predominant). However, the central canal and neural formina appeared widely patent, suggesting that the ...

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