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In re Worker's Comp. Claim of Bailey

Supreme Court of Wyoming

February 10, 2015


Appeal from the District Court of Fremont County. The Honorable Marvin L. Tyler, Judge.

For Appellant: Frank B. Watkins of Frank B. Watkins, P.C., Riverton, WY.

For Appellee: Peter K. Michael, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; and Quinn J. Lance, Student Intern.

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


Page 1211

HILL, Justice.

[¶1] Vernon Bailey challenges a Medical Commission order denying him further benefits for a cervical spine injury. Mr. Bailey argues on appeal that the Medical Commission's findings and conclusions were not supported by substantial evidence. We will affirm.


[¶2] Mr. Bailey phrases the single issue as follows:

Did the Medical Commission err in finding that [Bailey] had not met his burden of proof that he was entitled to further cervical Workers' Compensation benefits as a result of his work related injury on February 7, 2011?


[¶3] On February 7, 2011 Vernon Bailey slipped and fell during his shift as a custodial supervisor at the Holiday Inn in Riverton. He injured his knees, right wrist, head, neck,

Page 1212

and back.[1] Immediately after his injuries, he was transported to Riverton Hospital where he underwent a number of procedures, including a CT scan on his cervical spine. Three days later Mr. Bailey sought the care of Dr. Robert Narotzky, a neurosurgeon, who recommended steroid injections but not surgery.

[¶4] On March 4, 2011 the Wyoming Workers' Compensation Division (Division) awarded benefits to Mr. Bailey. Dr. Narotzky referred Mr. Bailey to Dr. Todd Hammond, an anesthesiologist, who administered a steroid injection. Dr. Hammond gave Mr. Bailey a pain log and recommended that he follow up with Dr. Thomas Kopitnik, another neurosurgeon, if his symptoms did not improve. Dr. Narotzky recommended, and Mr. Bailey underwent, an MRI of his cervical spine, which showed minimal to mild foraminal narrowing in C3-4, C4-5, and C5-6.

[¶5] Six weeks after his MRI Mr. Bailey received a CT C-spine post-myelogram. The CT scan showed " [m]ultilevel degenerative changes of the cervical spine." After reviewing Mr. Bailey's scans Dr. Kopitnik recommended that Mr. Bailey " undergo a C5-6 and C6-7 anterior cervical discectomy and fusion because of neck pain." Dr. Kopitnik submitted a request to the Division for preauthorization for the recommended discectomy and fusion. However, the Division denied the request, to which Mr. Bailey objected. Mr. Bailey requested a hearing, which was referred to the Medical Commission.

[¶6] Before the Medical Commission hearing Dr. Kopitnik submitted to a deposition. He testified that Mr. Bailey previously reported back pain to Dr. Narotzky in 2009, a full year and a half before his work fall. Dr. Kopitnik testified that, in his opinion, Mr. Bailey's work fall did not cause his cervical spine injury. This was contrary to his earlier statement that he expressed when he submitted the preauthorization request for Mr. Bailey's surgery in 2011. Dr. Kopitnik stated, " [Mr. Bailey] had a myelogram of his neck February 16, 2010. And this new myelogram, April 18, 2011, to me, does not look that different."

[¶7] In March of 2012 Mr. Bailey was referred to yet another doctor, Dr. Eric Schubert, a neurologist, who reviewed the MRI and CT scan of Mr. Bailey's cervical spine. Dr. Schubert reported that the MRI showed " moderate degenerative disk disease at C4-5, C5-6, and C6-7." Dr. Schubert recommended surgery to alleviate Mr. Bailey's pain. Dr. Schubert was also deposed in preparation for the Medical Commission hearing and again testified that he recommended a three-level discectomy and fusion for Mr. Bailey. However, when asked if the 2011 workplace fall caused the need for recommended surgery, Dr. Schubert responded " that would be conjecture on my part." Dr. Schubert also admitted that Mr. Bailey's medical records reflected a recommendation of neck surgery prior to his fall in 2011.

[¶8] Along with the testimony of Drs. Kopitnik and Schubert, Dr. John F. Ritterbusch, an orthopedic surgeon, conducted an independent medical examination. After examining Mr. Bailey and his medical records Dr. Ritterbusch found no evidence of acute injury after the accident of February 7, 2011 on the CT scans, x-rays, and myelogram. Dr. Ritterbusch said it was his opinion that the documentation failed to establish an acute injury or an aggravation or exacerbation to the cervical spine after the accident. The doctor also stated that " [i]t is a mystery to me after reviewing this chart why this surgical procedure was ever considered."

[¶9] After the hearing the Medical Commission upheld the Division's denial of benefits for Bailey's cervical spine issues. In its findings of fact the Medical Commission relied upon Dr. Kopitnik's testimony and discounted Dr. Schubert's testimony. In response, Mr. Bailey filed a Petition for Review of Administrative Action in district court. The district court affirmed the Medical Commission and this appeal followed.

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