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In re Worker's Compensation Claim of Kebschull

Supreme Court of Wyoming

August 15, 2017

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

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

          Representing Appellant: James R. Salisbury, The Salisbury Firm, P.C., Cheyenne, 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.

          DAVIS, Justice.

         [¶1] Appellant William Kebschull challenges the Medical Commission's denial of additional temporary total disability benefits. He claims that he should receive such benefits pursuant to Wyo. Stat. Ann. § 27-14-605(a) (LexisNexis 2017) and the second compensable injury rule. We affirm.

         ISSUES

         [¶2] Appellant presents several issues that interweave legal and factual theories. We have reorganized and refined them to better capture the core of the arguments under the applicable standards of review:

1. Was there substantial evidence to support the Medical Commission's conclusion that Appellant was not entitled to benefits under Wyo. Stat. Ann. § 27-14-605?
2. Is Wyo. Stat. Ann. § 27-14-605 impermissibly vague and ambiguous?
3. Did the Medical Commission misapply the second compensable injury rule?
4. Was there substantial evidence to support the Medical Commission's conclusion that Appellant did not suffer a second compensable injury?
5. Did a mistake occur in the determination and award of permanent partial impairment benefits?

         FACTS

         [¶3] This case concerns Appellant's persistent back problems and whether they were caused by a work-related injury. His history of back pain began before a reported workplace injury in 2008. Appellant was examined by a doctor in 1999 and complained "of rather severe back pain for the past year." Although the doctor set up physical therapy to treat the back pain, Appellant did not go.

         [¶4] A few years later, in 2002, Appellant again complained of "chronic low back pain" to his long-term physician, Dr. Bennie Rosetto, who is board certified in internal medicine. Dr. Rosetto practices at the Veterans Administration out-patient clinic in Kalispell, Montana. He treated Appellant over many years for a number of complaints, and he prescribed ibuprofin for chronic back pain in April 2003. Medical records from 2006 also state that Appellant suffered from "chronic low back pain" and "degenerative changes in the spine."

         [¶5] In early March of 2008, Appellant reported a work-related injury to his lower back. He was an assistant operator for an energy company in Pinedale at the time, and he hurt himself lifting a large valve. He also claimed to have slipped and fallen on the job a few days before that. Appellant was 62 years old at the time.

         [¶6] The Pinedale medical clinic that Appellant went to on the day of the lifting incident diagnosed him with a lumbar contusion and strain. The treating physician devised a plan to have Appellant "start on some pain medication, be off work for a couple of days and rest the area as much as possible."

         [¶7] An MRI taken later in March did not show any acute changes from the fall, but it did show preexisting degenerative changes. The detailed findings and impressions from that MRI provide in part as follows: [1]

FINDINGS:
***
L4-5: There is very severe facet degenerative change and hypertrophy. There is a grade 1 degenerative spondylolisthesis. This finding, combined with congenitally short pedicles and ligamentum flavum hypertrophy, results in central stenosis. There is moderate left-sided and mild right-sided neural foraminal narrowing.
***
IMPRESSION:
1. Degenerative change throughout with multifocal abnormalities. The most significant focal pathology relates to central spine canal stenosis at L4-5 which is both acquired and congenital in nature.

         [¶8] Another MRI was performed in June of 2008, and it likewise showed no acute changes due to the work injury. Instead, it demonstrated degenerative changes with "minor canal stenosis" and moderate change in the spine due to anterolisthesis. The doctor reviewing that MRI determined in part:

FINDINGS:
MRI of the lumbar spine is performed unenhanced. The lumbar vertebral body heights are maintained. There is diffuse disc desiccation present which partially spares L5-S1. The conus demonstrates normal signal and morphology. There are no paraspinous abnormalities detected.
***
L4-5: Mild Grade 1 degenerative anterolisthesis L4 on L5 present with moderately severe facet, and mild vertebral spondylosis. There is a small posterior central disc protrusion present accentuated by prominence of posterior longitudinal ligament. There is flavum hypertrophy and there is an element of congenital foreshortened pedicles. These factors contribute to moderate canal stenosis. There is also mild to moderate left and borderline biforaminal encroachment.
***
CONCLUSION:
Mild canal stenosis is preent at L2-3 and L3-4 with moderate change at L4-5 as detailed above. Findings are due to a combination of congenitally foreshortened pedicles, spondylosis and disc protrusions, as detailed. There is also contribution by flavum hypertrophy at L4-5.
There is mild left foraminal encroachment at L4-5 and L5-S1 with borderline foraminal narrowing on the right side at each ...

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