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In re Worker's Compensation Claim of Boyce

Supreme Court of Wyoming

August 31, 2017


         Appeal from the District Court of Sweetwater County The Honorable Nena James, Judge

          Representing Appellant: Jack D. Edwards of Edwards Law Office, P.C., Etna, WY.

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

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

          Hill, Justice.

         [¶1] James Boyce suffered an inguinal hernia while working and received workers' compensation benefits to cover that injury. The Wyoming Workers' Compensation Division (Division) denied benefits, however, for subsequently discovered conditions in Mr. Boyce's lumbar spine. The Medical Commission upheld the Division's denial of benefits, and Mr. Boyce appealed. The district court affirmed the Medical Commission's decision, and we likewise affirm.


         [¶2] Mr. Boyce states his single issue on appeal as follows:

ISSUE ONE: Whether the Medical Commission provided a sufficient explanation as to why it ruled the way it did.


         [¶3] In May 2013, Mr. Boyce was working for Halliburton Energy Services as a "frac hand, " which meant he was tasked with delivering equipment and materials to well sites, and setting up and taking down the well equipment. On May 11th, Mr. Boyce was assigned to transport equipment and material from Rock Springs, Wyoming to a well site in Nebraska. Because his delivery included hazardous materials, he was required to have a placard on the back of the eighteen-wheeler warning of the hazardous materials on board. The placard was in place when Mr. Boyce left the Halliburton yard in Rock Springs, but when he stopped at a truck stop a short distance from the yard, he discovered it had fallen off.

         [¶4] Mr. Boyce reported the situation to his supervisor, who then met Mr. Boyce at the truck stop and took him to search for the placard. When they located the placard, they pulled over, and the two of them lifted the placard to place it in the back of the supervisor's three-quarter-ton truck. The placard weighed about a hundred pounds and was mounted in an 8.5-foot metal frame. Mr. Boyce and the supervisor were standing on the passenger side of the truck bed, with Mr. Boyce closest to the cab. Each lifted a side of the placard, and because the truck had racks and a diesel tank on the bed closest to the cab, where Mr. Boyce was lifting, he had to stand on his toes to lift it high enough to place it in the truck. When Mr. Boyce did that, he felt a sharp shooting pain down the right side of his groin.

         [¶5] Mr. Boyce and his supervisor eventually got the placard into the back of the truck, and once the placard was securely fastened to the back of Mr. Boyce's rig, he continued his trip to Nebraska. After Mr. Boyce completed his Nebraska trip, he returned to his home in Idaho, and on Monday May 13, 2013, he saw his primary care physician, Dr. Bailey. Dr. Bailey suspected Mr. Boyce had a hernia and referred him to a surgeon for further evaluation.

         [¶6] On May 17, 2013, Halliburton submitted a report of injury to the Division, which stated, "Employee was lifting a placard rack back onto a truck and strained groin." On May 24, 2013, the Division issued a Final Determination of Compensability, which stated:

The Workers' Compensation Division has reviewed your injury report and related documents for the injury of May 11, 2013 and has determined it is compensable and has opened your claim. The body part(s) to be covered are: Right Groin

         [¶7] Mr. Boyce was ultimately diagnosed with a right inguinal hernia and referred to Dr. Gregg Marshall for surgery. Due to intervening medical issues, Mr. Boyce's hernia surgery was delayed until June 17, 2013. Nine days after surgery, on June 26, 2013, Mr. Boyce saw Dr. Marshall for a post surgery follow-up and reported substantial pain that he was able to control with medication. Mr. Boyce did not report low back pain during that visit. Dr. Marshall's June 26th post surgery plan was for Mr. Boyce to resume regular activity three weeks after his surgery and to return to work July 22, 2013.

         [¶8] On July 9, 2013, Mr. Boyce spoke with a Division claims analyst and informed her that he had been released to return to work on July 22nd, but he "has been having a lot of pain in [his] siatic nerve." On July 11, 2013, Mr. Boyce again saw Dr. Marshall. During that appointment, he complained of "pain in his right gluteus maximus. A pelvic sharp stabbing pain down the hip joint." Dr. Marshall assessed Mr. Boyce:

59-year-old male status post right inguinal hernia repair. From the hernia standpoint he is doing very well. He has some musculoskeletal pain in his right hip joint and into his gluteus maximus. I think that this is related to him walking with poor posture prior to his hernia repair.

         [¶9] Dr. Marshall referred Mr. Boyce to physical therapy and then saw him again on July18, 2013. By then Mr. Boyce had undergone two physical therapy treatments "with a small amount of improvement." Dr. Marshall's assessment of Mr. Boyce on that date was "musculoskeletal pain in his right hip joint and into his gluteus maximus, " and he recommended continued physical therapy. Mr. Boyce saw Dr. Marshall again on August 1, 2013, and Dr. Marshall noted that Mr. Boyce "continues to have persistent pain radiating from his back and down into his gluteus maximus, " and "occasional pain down into his thigh." He further noted:

[Mr. Boyce] is undergoing [a] modest course of physical therapy to see if his symptoms improve. They have not. I'm concerned about possible disc herniation or lung nerve entrapment. I will obtain an MRI and [have] referred him to a neurosurgeon for further evaluation.

         [¶10] On August 20, 2013, Mr. Boyce saw Dr. Gregory Harrison, a neurosurgeon. Dr. Harrison noted, in part:

** * Since hernia surgery, the patient reports the right-sided groin pain has improved though is not gone. The right-sided hip/buttock pain has persisted. The pain does not radiate into the thigh or calf nor does he have any paresthesias. * * *

         [¶11] Dr. Harrison reviewed an August 8, 2013 MRI of Mr. Boyce's spine, which showed:

1. Levoscoliosis with rotary component and leftward spondylolisthesis of L4.
2. Multilevel discogenic disease most pronounced at the L3-4 and L4-5 levels and to a lesser degree at L5-S1.
3. Mild canal stenosis at L3-4 and L4-5.
4. Diffuse posterior disc bulge with focal extrusion right paracentrally to posterolaterally of the L5-S1 disc extending into the lateral canal.
5. Multilevel neuroforaminal narrowing as described.
6. Bilateral synovial cysts posterolaterlly off the 4-5 facets which do no[t] encroach into the canal.

         [¶12] Dr. Harrison diagnosed Mr. Boyce with "a right S1 radiculopathy due to the small but significant disc herniation on the right at L5-S1. He certainly has degenerative changes at L3-4 and L4-5, as noted on the report." Dr. Harrison recommended steroid injections, noting "a fair chance that he may resolve this disc herniation on his own and without surgery."

         [¶13] On October 1, 2013, after two epidural steroid injections, Mr. Boyce again saw Dr. Harrison. Dr. Harrison noted the injections "modestly helped with [Mr. Boyce's] global pain." He concluded:

** * He is struggling with his right S1 radiculopathy and a bit of back pain. He has tried a number of conservative/nonsurgical measures and he is doing poorly overall regarding pain control. I think it is reasonable to say he has failed conservative measures and I would certainly offer him surgery at this time. I can offer him excellent outcomes, particularly regarding his radicular leg pain, in the situation. * * *

         [¶14] On October 16, 2013, Dr. Harrison submitted to the Division a request for preauthorization to perform an L3-L5 laminectomy and an L5-S1 discectomy. On October 24, 2013, the Division issued a final determination denying the preauthorization request on the ground that the surgery was not related to the original groin injury. Mr. Boyce objected to the final determination, and on November 14, 2013, the matter was referred to the Medical Commission for a hearing.[1]

         [¶15] After Mr. Boyce's claims were referred to the Medical Commission for hearing, Mr. Boyce underwent two independent medical evaluations (IMEs). On December 20, 2013, Mr. Boyce was examined by Dr. Brian Tallerico, a general orthopedic surgeon. Based on his record review and examination of Mr. Boyce, Dr. Tallerico opined that Mr. Boyce's spine conditions were not work related. More particularly, Dr. Tallerico felt that Mr. Boyce's spine was not in fact symptomatic and that the pain he was experiencing was muscular, which he described as "[r]ight gluteal pain and tenderness of unclear origin." Based on his assessment that Mr. Boyce's spine was not symptomatic, he disagreed with Dr. Harrison's surgery recommendation.

Additionally, I respectfully disagree that he is a candidate for an L3 to L5 laminectomy with L5-S1 diskectomy for several reasons. First, he had little, if any relief during the diagnostic and therapeutic phase of his multiple epidural steroid injections. If he had significant stenosis necessitating an L3-5 laminectomy, I would imagine that he would have some relief during the local anesthetic phase of his pain. Additionally, he describes purely gluteal pain with muscular tenderness. This is not radiculopathy. Although he did have some episodes last Friday of the pain going down his entire right leg, that would be seven months following his injury, and therefore, would be unrelated temporally. Furthermore, he has a completely normal neurologic examination in the right lower extremity. He has no orthopedic impairment rating relating to the industrial claim. His degenerative findings in his lumbar spine are pre-existing and in my opinion, actually incidental, and certainly not related to the industrial injury.

         [¶16] On February 27, 2014, Mr. Boyce underwent a second IME, this one performed by Dr. Gary Walker, a physiatrist who described his specialty as physical medicine rehabilitation. Based on his record review and examination of Mr. Boyce, Dr. Walker opined that the L3-L5 stenosis was not work related, but the L5-S1 disc protrusion was work related.

It is my opinion that any treatment for L3-L4 and L5 laminectomy would be unrelated to his work injury and rather related to preexisting, although previously asymptomatic, degenerative disc disease at the L3-L4 and L5 levels primarily. He does, however, have a right L5-S1 acute appearing focal disc protrusion with extruded fragment in the lateral recess impacting the descending S1 root. It is a very focal protrusion and matches his pain. It also matches with his sensory change in the right lateral foot. It is my opinion that it is more probable than not that the right L5-S1 disc extrusion is indeed work related. The initial pathology indeed may have come on associated with the lifting; however, may also have come on with the bending over and walking flexed associated with his right inguinal hernia. Either way, the causation would be industrial related. I disagree with Dr. Tallerico's independent medical examination. In fact in Dr. Tallerico's independent medical examination, he does not even comment that the patient has a right L5-S1 disc extrusion as seen on the MRI scan. He comments only about degenerative changes; therefore I do not think that Dr. Tallerico's opinion is complete as it does not even consider the L5-S1 disc extrusion.

         [¶17] The Medical Commission held an evidentiary hearing on March 27, 2015. The evidence presented to the Medical Commission included Mr. Boyce's medical records, Dr. Harrison's deposition testimony, Dr. Tallerico's IME report and deposition testimony (submitted by the Division), and Dr. Walker's IME report and deposition testimony (submitted by Mr. Boyce). On May 7, 2015, the Medical Commission issued its Findings of Fact, Conclusions of Law, and Order of Medical Commission Hearing Panel, which upheld the Division's denial of benefits for Mr. Boyce's spine conditions. In so ruling, the Medical Commission found, in part:

15. The Medical Hearing Panel herein finds that the opinion of Dr. Harrison is quite equivocal. He was unable to clearly document radiculopathy on August 20, 2013, several months after the reported work injury. In addition, we note that he had taken a very poor history from Mr. Boyce, and had an inadequate working knowledge of the mechanism of injury, and/or any preexisting problems that may have existed. When asked why he had indicated in his records that the proposed surgery was a Workers' Compensation injury, Dr. Harrison indicated it was because Mr. Boyce had told him it was.
We find that Dr. Harrison's opinion is equivocal and nonspecific, and is nonsupportive of Mr. Boyce going through the requested surgery as a ...

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