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In re Worker's Compensation Claim of Hardy

Supreme Court of Wyoming

April 27, 2017


         Appeal from the District Court of Campbell County The Honorable John R. Perry, Judge

          Representing Appellant: Matthew R. Sorenson of Daly & Sorenson, LLC, Gillette, Wyoming.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; Daniel E. White, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Benjamin Eliazar Fischer, Assistant Attorney General.

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

          KAUTZ, Justice.

         [¶1] Karen Hardy appeals the district court's order affirming the Office of Administrative Hearing's (OAH) decision denying workers' compensation benefits to Ms. Hardy for an injury to her lower back. Ms. Hardy argues that she is entitled to benefits under the second compensable injury rule. We affirm.


         [¶2] Ms. Hardy raises one issue in this appeal:

Whether the district court erred in affirming the administrative agency's finding that [Ms. Hardy's] injury was not compensable[.]


         [¶3] On April 3, 2013, Ms. Hardy was working at the Home Depot in Gillette, Wyoming. She was moving bricks and large bags of potting soil when she felt pain in her left shoulder and back. On April 11, 2013, she sought medical treatment for that pain at the Campbell County Memorial Hospital Walk-In Clinic. The physician's assistant who treated her prescribed medication for the pain and suggested she come back in a week. Ms. Hardy returned to the clinic on April 18, 2013, and informed the physician's assistant that her pain was improving. The physician's assistant instructed Ms. Hardy to continue icing her shoulder and taking ibuprofen for pain.

         [¶4] On June 18, 2013, Ms. Hardy returned to the walk-in clinic, this time seeking treatment for a different work injury. Ms. Hardy explained that on May 11, 2013, she tripped and fell at Home Depot and subsequently had been suffering from right knee pain for five weeks. She also stated she had been terminated from her employment with Home Depot. Significantly, the progress note indicates that Ms. Hardy denied suffering from any back pain on that day. Thereafter, Ms. Hardy was treated by Dr. John Dunn at Powder River Orthopedics and Spine, who ultimately performed a right knee arthroscopy, partial medial menisectomy. The record contains notes from Ms. Hardy's four different office visits with Dr. Dunn between July 22, 2013, and September 19, 2013, and in none of those notes does Dr. Dunn indicate that Ms. Hardy had any complaints of back pain. On September 27, 2013, Ms. Hardy again returned to the walk-in clinic seeking treatment for pain and swelling in her knee post surgery. The progress note states she denied any back pain at that visit.

         [¶5] On May 14, 2015, Ms. Hardy sought treatment at the walk-in clinic for low back pain she had been suffering for six days. According to the progress note, Ms. Hardy said she injured her back by bending, twisting, and lifting at work on May 9, 2015. At this point in time, she was working in the produce department and as a cashier at Don's Supermarket in Gillette. Deborah Johnston, the physician's assistant who treated Ms. Hardy, instructed her to refrain from heavy lifting for one week, to alternate heat and ice multiple times a day, and to return to the clinic if the symptoms did not improve. She returned to the walk-in clinic on May 22, 2015, and the progress note from that visit states she received a work injury on May 15, 2015. Ms. Johnston also noted that when she entered the treatment room, Ms. Hardy was crying, in pain, and stated she did not know what to do. She stated she did not have health insurance, could not quit her job, and that she called the Wyoming Workers' Compensation Division (the Division) and was told she could not reopen her claim from 2013. In addition to prescribing medication and advising on how to care for herself, Ms. Johnston suggested that Ms. Hardy contact the Division again to try to get her old claim re-opened. She also suggested that Ms. Hardy seek treatment from an orthopedist.

         [¶6] On May 28, 2015, Ms. Hardy saw Dr. Nathan Simpson at Powder River Orthopedics and Spine. She informed Dr. Simpson that her back hurt from an injury she sustained on April 11, 2013, while working at Home Depot. She stated that since the injury she had experienced continually worsening pain. She did not mention that she had been injured at Don's Supermarket in May 2015 or that she had sought treatment at the walk-in clinic earlier in the month. Dr. Simpson recommended that Ms. Hardy receive an MRI of her lumbar spine. From the MRI, Dr. Simpson determined that Ms. Hardy was suffering from a small annular tear and facet degenerative joint disease.

         [¶7] The bills from Ms. Hardy's 2015 doctor visits were submitted to the Division. The Division denied payment for all of the bills on the basis that Ms. Hardy's May 9, 2015 back injury was not related to the injuries she sustained on April 3 or May 11, 2013. Ms. Hardy objected to the Division's final determination and requested a hearing with the OAH.

         [¶8] At the hearing, the OAH hearing examiner considered all of the medical records, Ms. Hardy's testimony, and the depositions of Ms. Johnston and Dr. Simpson. The hearing examiner determined that Ms. Hardy had failed to prove by a preponderance of the evidence a causal connection between her April 3, 2013 work-related injury and her 2015 back injury. Ms. Hardy appealed the decision to the district court, and it affirmed the hearing examiner's determination. Ms. Hardy timely appealed to this Court.

         STANDARD ...

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