IN THE MATTER OF THE WORKER'S COMPENSATION CLAIM OF: WILLIAM KEBSCHULL, 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: 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.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
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
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
3. Did the Medical Commission misapply the second compensable
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?
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.
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."
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.
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
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: 
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.
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.
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
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
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