IN THE MATTER OF THE WORKER'S COMPENSATION CLAIM OF TODD JENSEN, AN EMPLOYEE OF R.S. BENNETT CONSTRUCTION: TODD JENSEN, Appellant (Petitioner),
STATE OF WYOMING, ex rel., DEPARTMENT OF WORKFORCE SERVICES, WORKERS' COMPENSATION DIVISION, Appellee (Respondent).
from the District Court of Sublette County The Honorable
Marvin L. Tyler, Judge
Representing Appellant: Jack D. Edwards of Edwards Law
Office, P.C., Etna, Wyoming.
Representing Appellee: Peter K. Michael, Wyoming Attorney
General; John D. Rossetti, Deputy Attorney General; Michael
J. Finn, Senior Assistant Attorney General; Kellsie J.
Singleton, Assistant Attorney General.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
The Office of Administrative Hearings (OAH) denied Mr.
Jensen's worker's compensation claim on the grounds
that he failed to prove a causal relationship between his
automobile accident and his prior work-related accident. The
district court upheld that decision. We affirm.
1. Did the OAH properly apply the second compensable injury
the OAH's conclusion that Mr. Jensen did not prove by a
preponderance of the evidence that his automobile accident
was causally connected to his work-related injury supported
by substantial evidence?
On October 13, 2011, Mr. Jensen suffered a work-related
injury when he climbed from the bed of a dump truck and fell
onto a rock, fracturing his right hip. Dr. Brian Tallerico
performed surgery on the hip, inserting a nail into the femur
to repair the fracture. The Department of Workforce Services,
Workers' Compensation Division (the Division) approved
benefits for the injury to Mr. Jensen's right hip.
After surgery, Mr. Jensen's legs were different lengths,
causing a limp and constant pain in both hips. The pain
eventually became unbearable, and on July 12, 2012, Dr.
Tallerico and Dr. Aaron Altenburg performed a total hip
replacement in Pocatello, Idaho. After his hip replacement,
Mr. Jensen remained in pain, had bursitis, and was
pigeon-toed. This caused him to trip and fall down when he
Mr. Jensen sought treatment for the symptoms he was
experiencing. He began seeing pain specialist Dr. Holly Zoe
in Idaho Falls, Idaho. He also revisited Dr. Tallerico, with
whom he discussed the possibility of returning to work and
the performance of a functional capacity evaluation and an
impairment rating examination, which were subsequently
scheduled. Dr. Tallerico noted: "Musculoskeletal: gait
and station-[c]onventional walking: abnormal toe off."
He performed an impairment rating examination in April of
2013. During that examination, Dr. Tallerico noted:
Gait Observation: He ambulates with an
antalgic gait favoring the right lower extremity with a
shortened swing phase and stance phase. It is not a true
Trendelenburg appearance however. Overall it does not appear
that he has excessive external or internal rotation of the
right lower extremity.
. . . .
Manual motor testing however does reveal some give way
weakness in basically all major motor groups in the right
. . . .
It is my opinion that the claimant is now at maximal medical
improvement related to this industrial injury and he should
be considered fixed and stable at this time.
I am also of the opinion that Mr. Jensen does have permanent
work restrictions related to the industrial injury. I believe
that this individual has a sincere desire to return to work
but given his prior heavy requirements I doubt he can return
to the job of injury . . . .
On June 3, 2013, Mr. Jensen notified the Division that he was
having difficulty walking because his pigeon-toed foot was
causing him to fall and that he was going to see Dr.
Tallerico about it. On June 5, he followed up with Dr.
Tallerico. During that visit, according to Dr.
Tallerico's notes, Mr. Jensen "state[d] that he has
a hard time walking as right foot [wants] to roll 
underneath him and [is] pigeon toe[d] to where he trips over
and [falls]." Regarding Mr. Jensen's physical
examination, Dr. Tallerico's notes state:
The patient['s] examination is quite interesting. As he
sits in the examination chair [it] appears that he does have
inversion and internal rotation of his right foot. However
with distraction this is not the case[.] [W]hen I inspected
his shoes there is no evidence of a [un]even wear pattern on
the right shoe sole. He ambulates with a slight limp as he
always [is] favoring the right lower extremity[.] [H]is
supine exam shows basically even limb length and with
distraction and log-rolling of his legs there is essentially
no evidence of any malrotation of his right lower extremity
due to malposition of his total hip implant. In fact in the
supine position. [sic] This is confirmed whereas [h]is foot
progression angle is actually symmetric. His hip range of
motion is actually quite impressive and symmetric with no
abnormal findings on the right side [and] no evidence of
Tallerico's notes go on to state:
[Mr. Jensen's] clinical symptoms are somewhat perplexing
to me. He seems to feel that he has significant internal
rotation and intoeing of the right lower extremity but I
cannot find any objective evidence to support that on exam .
. . . However I certainly have to take [Mr. Jensen's]
subjective complaints into consideration so therefore we are
going to have him see the Ortho [tech] in Pocatello on the
same day to give him a lateral heel wedge for his right shoe
orthotics to see if that will help neutralize his foot[.]
On June 10, Mr. Jensen saw Dr. Altenburg and his assistant,
Matthew McKinlay, PA-C. Mr. McKinlay's notes state that
Mr. Jensen "complains of soreness in his lateral hip
that has caused him to walk with pinching toe gait and he is
also starting to go over the lateral aspect of his
foot." The physical examination revealed the following:
Certainly, he does walk with his foot internally rotated and
seems to thrust his weight laterally. He has marked
tenderness at the greater trochanter. When his leg is relaxed
in extension, he externally rotates to a neutral position and
the pain resolves.
note concluded that Mr. Jensen "has developed greater
trochanteric bursitis and intoeing." Going forward,
their plan was to "get [Mr. Jensen] set up for some gait
training and physical therapy focusing on externally rotating
the foot and leg to get into more of a neutral
The day after Mr. Jensen saw Dr. Altenburg, he was scheduled
for appointments with Idaho Prosthetics & Orthotics to be
fitted with orthotics, and with East Idaho Interventional
Pain Center. En route to those appointments, Mr. Jensen was
in an automobile accident which resulted in a shattered right
ankle, broken left arm, and a broken pelvis.
Immediately before the accident, Mr. Jensen was traveling
north on Highway 89. As he approached the bridge over the
Salt River, the vehicle in front of him began to turn right
onto Lincoln County Road 128, and Mr. Jensen slowed down to
allow room for the vehicle to turn. At the hearing, Mr.
Jensen testified regarding what happened next:
A. [Mr. Jensen:] Okay. There's a vehicle in front of me a
quarter mile ahead of me. I'm -- I'm going well under
the speed limit. I put my left foot up on the clutch, pushed
it in and shifted down. I needed to slow the pickup down. I
put my right foot up on the brake pedal.
Q. [Counsel for Mr. Jensen:] Why are you slowing your ...