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In re Worker's Compensation Claim of Price

Supreme Court of Wyoming

February 16, 2017

IN THE MATTER OF THE WORKER'S COMPENSATION CLAIM OF: VALERIE PRICE, Appellant (Petitioner),
v.
STATE OF WYOMING, ex rel., DEPARTMENT OF WORKFORCE SERVICES, WORKERS' COMPENSATION DIVISION, Appellee (Respondent).

         Appeal from the District Court of Fremont County The Honorable Norman E. Young, Judge

         Representing Appellant:

          Sky D Phifer, Phifer Law Office, Lander, Wyoming.

         Representing Appellee:

          Peter K. Michael, Wyoming Attorney General; Daniel E. White, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; James M. Causey, Senior Assistant Attorney General.

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

          FOX, Justice.

         [¶1] Valerie Price suffered a work injury in 2004. As a result, she had shoulder surgery in 2005, which was covered by the Wyoming Workers' Compensation Division (Division). In 2013, Ms. Price sought benefits for surgery on the same shoulder to treat calcific tendinitis. Her surgeon found a hole in the fascia over the acromioclavicular joint during the 2013 surgery, which may have occurred during the 2005 surgery. She therefore contended that the 2013 surgery was a second compensable injury. The Division denied her claim. After a hearing, the Medical Commission (Commission) determined that Ms. Price had not proven the 2013 surgery was causally related to her 2004 injury and subsequent treatment. Ms. Price appealed, and the district court affirmed the Commission's ruling. Ms. Price timely appealed, and we affirm.

         ISSUES

         [¶2] We rephrase the issues as:

         1. Was the Medical Commission Hearing Panel's conclusion that there was no causal link between Ms. Price's work-related injury and the need for her 2013 surgery supported by substantial evidence?

         2. Did the Medical Commission Hearing Panel improperly apply apportionment when it concluded that Ms. Price's 2013 surgery was not compensable?

         FACTS

         [¶3] Valerie Price hurt her right shoulder at work in 2004 when she took the trash outside and slipped and fell on ice. As a result, in 2005 she had a right shoulder arthroscopy, which was covered by the Division. She reported continued right shoulder pain over the following years. In 2013, she saw Dr. Bienz for right shoulder pain, and he diagnosed calcification and recommended arthroscopic debridement. Dr. Bienz noted that he had reviewed "the x-rays from 2005, and at that time, there was not much calcification in the rotator cuff, but on today's images, there is a significant amount of soft tissue calcification . . . ." He observed:

The other question here, of course, is whether this is truly related to the initial injury. She is of the impression that her shoulder "would always be covered" because of the initial incident that led to the [2005 surgery], however, the fact that she had no calcific tissue in 2005 when she was last treated by me and has since developed substantial calcific tendinitis would suggest that this calcific tissue developed since her last incident, not necessarily because of her last incident.

         The Division denied coverage for the surgery. Dr. Bienz performed the right shoulder arthroscopy with debridement on May 17, 2013. During the course of that surgery, he noted "a large hole in the acromioclavicular joint where the previous procedure apparently caused the fascia to separate or perhaps it was never repaired." He determined that the hole was communicating fluid to the joint surface and repaired it.

         [¶4] Dr. Bienz testified that he did not believe the calcific tendinitis for which he treated Ms. Price in 2013 was caused by her 2004 workplace injury.

Q. Okay. Now, do you have any opinion as to whether Ms. Price's calcific tendinitis is related to her workplace injury?
A. Well, I mean, it is -- it's certainly related. I mean, it's in the same side. It's the same joint. You know, there is some relationship there. But for a variety of reasons outlined in that other note, I don't think it likely that the fall carrying the garbage caused her to later develop calcific tendinitis. And part of that is also even more information than what we had in April, is that she has subsequently developed rather significant calcific tendinitis in the opposite shoulder, as well, which was treated by my partner, Dr. Carlson. And you know, there was no injury to the opposite shoulder when she fell.

         [¶5] Dr. Bienz testified that he assumed the hole in the acromioclavicular joint, which he repaired, was most likely caused by the original 2004 surgery, "unless she developed a tear . . . after the fact . . . ." When asked why it was necessary to do that repair, he responded:

A. I don't know if "necessary" is the right word, but basically when you're doing a procedure, especially on a patient like this who has pain but you're never quite sure why they have pain, you do attempt to correct any abnormality that you find so that you can minimize the chance that they're going to continue to have pain.
And in this case, you know, what I noticed is that there was fluid coming down from up there, which shouldn't be happening, because normally that's a sealed area. And so we went up and looked, and we did in fact find a communication to the subacromial space through that fascial tear.
Q. And could -- could this be causing part of the pain that Ms. Price was suffering from that caused you to go in and ...

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