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In re Worker's Compensation Claim of Howe

Supreme Court of Wyoming

September 18, 2017


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

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

          FOX, Justice.

         [¶1] Worker's compensation claimant Dennis Howe appeals from a determination by the Medical Commission (Commission) denying his claim for permanent partial impairment (PPI) benefits. We affirm.


         [¶2] We rephrase the issues as:

1. Was there sufficient evidence to support the Commission's finding that Mr. Howe did not suffer any permanent impairment as a result of the chlorine exposure?
2. Was the Commission's decision arbitrary and capricious?


         [¶3] Mr. Howe seeks PPI benefits for a work-related injury he suffered in June 2011. He was employed as a maintenance man at the Best Western - Lander Inn in Lander, Wyoming. As part of routine pool and hot tub maintenance, Mr. Howe resupplied chlorinator tubes with chlorine pellets. On June 24, 2011, one of the tubes exploded and Mr. Howe was exposed to chlorine powder and gas for a minute or less. He left the area of exposure and a coworker assisted him in washing chlorine residue from his face and other exposed body parts. He refused any further medical attention and went home early from work that day. Mr. Howe testified that in the early morning hours of June 25, 2011, he awoke with breathing difficulties and a few hours later drove himself to the emergency room at Lander Regional Hospital.

         [¶4] At the emergency room, Mr. Howe was treated by Dr. Brian Gee, M.D. Dr. Gee ordered a chest x-ray, put Mr. Howe on oxygen, and gave him a nebulizer treatment. In Dr. Gee's discharge note he stated:

Patient improved with O2 here. He had chlorine exposure yesterday and had gotten increasingly short of breath. His labs interestingly were generally normal. BMP was up slightly. His x-ray did show maybe interstitial changes. He was hypoxic here. After discussing with him and Poison Control, patient did not want to stay in the hospital for evaluation, told could be worsening over the course of 72-96 hours with pulmonary edema or respiratory failure, and also did discuss his mildly elevated troponin level. States he does not want to stay in the hospital. I did discuss the risk of underlying cardiac issues and lung issues and potential worsening. He is going to go home. However, we did set him up with home oxygen and home nebs. We did try a neb here, which did improve him. He is going to recheck here in the morning unless he is doing quite well and then he is going to follow up with his regular doc and home O2. I told him that we probably have a 48 to 96-hour window and that if there is worsening he needs to be reevaluated in the ER. He is comfortable with this plan.

         Mr. Howe followed up with Amy Hitshew, P.A., at Lander Medical Clinic on July 6, 2011. Mr. Howe continued to take oxygen by nasal cannula, was coughing up phlegm, and reported being short of breath when active. On examination, Ms. Hitshew reported no dyspnea, no wheezing, rales, crackles, or rhonchi, and that breath sounds were normal and he had good air movement. Ms. Hitshew directed Mr. Howe to continue to wear oxygen as needed, monitor his blood pressure, and follow up with her in two weeks.

         [¶5] When Mr. Howe followed up with Ms. Hitshew on July 20, 2011, he reported that he was still coughing up phlegm and felt winded without his oxygen. During a physical exam, Ms. Hitshew asked him to walk around without his oxygen and she noted his O2 saturation dropped to 87% and he became winded. Mr. Howe continued to see Ms. Hitshew in August and September 2011. On August 9, 2011, Ms. Hitshew noted that Mr. Howe was deconditioned and referred him to physical therapy for work hardening to get him back into shape and decrease his shortness of breath. At two subsequent appointments, Mr. Howe indicated that the physical therapy was going very well, he was feeling better, and he was much less short of breath. Ms. Hitshew examined his lungs and reported no dyspnea, no wheezing, rales, crackles, or rhonchi, with normal breath sounds and good air movement. Ms. Hitshew released Mr. Howe to return to work without restrictions on September 15, 2011.

         [¶6] Mr. Howe testified that after returning to work, he would get too physically tired to work all day. He stated that if he worked in the morning and was needed in the afternoon, he would have to go home to take a nap, something he did not have to do prior to his work injury. Mr. Howe testified that prior to June 24, 2011, he did not have any breathing problems. Three of Mr. Howe's coworkers testified that Mr. Howe was generally able to perform his work before the June 2011 incident, but that he often appeared more winded upon physical exertion after that incident.

         [¶7] Mr. Howe returned to see Ms. Hitshew on January 5, 2012. He complained of shortness of breath, admitted that he had several job duties cut due to the shortness of breath, and that he became severely short of breath with any type of physical exertion. Upon examination of his lungs, Ms. Hitshew reported that there were no rales, crackles or rhonchi, normal breath sounds, good air movement, and expiratory wheezing, and noted that he seemed winded with any activity. Ms. Hitshew ordered pulmonary function testing and referred Mr. Howe to Dr. Muhammad Hussieno, a pulmonologist in Casper.

         [¶8] Dr. Hussieno examined Mr. Howe on January 18, 2012, and found that his lungs had normal respiratory effects, they were clear to auscultation, had diminished air movements, and were normal to percussion. Dr. Hussieno noted that the spirometry test performed two weeks prior showed moderate restriction and then performed a second spirometry test. He found further decline in his test compared to the test two weeks prior, and diagnosed Mr. Howe with restrictive lung disease, obesity, and reactive airway dysfunction syndrome (RADS). Dr. Hussieno prescribed the medication Dulera, [1] and ordered a high-resolution CT of the chest for further evaluation. The CT was performed that day at Casper Medical Imaging. Dr. Michael Flaherty, M.D., reported his findings and impressions of the CT as follows:

The lungs are clear with no evidence of infiltrate, pneumonia, or lung contusion. There is no atelectasis appreciated. No pulmonary nodules or masses are identified. There is no evidence of pneumothorax or pleural fluid collection. Thin slice, high resolution images demonstrate no significant interstitial lung disease.
Soft tissue windows are limited by the lack of IV contrast, however, there is no evidence of axillary, mediastinal, or hilar lymphadenopathy. Heart size is normal. Minimal atherosclerotic calcifications are noted in the aortic arch. Note is made of a fracture in the posterolateral aspect of the right 4th rib. The fracture is slightly displaced. No other fracture is appreciated. There are degenerative changes noted at multiple levels in the thoracic spine that are most prominent in the mid to lower thoracic spine.
The visualized portion of the upper abdomen is grossly normal in appearance.
1. The lungs are clear with no acute cardiopulmonary abnormality identified.
2. No significant interstitial lung disease is appreciated.
3. Fracture in the posterolateral aspect of the right 4th rib appears acute to subacute. There is slight displacement of the fracture fragment.
4. Additional findings as above.

         [¶9] Mr. Howe followed up with Dr. Hussieno on February 14, 2012, and again on May 14, 2012. Dr. Hussieno added dyspnea and hypoxemia under his assessment in February, continued him on Dulera, and "strongly encouraged weight loss, exercises and physical activities." Dr. Hussieno performed another spirometry test in May and reported the results as follows:

Showed severe obstructive lung defect with FEV1 43% of predicted. The obstruction is confirmed by reduction in FEF 25-75%. However, the patient did three attempts with significant variations. Overall the results are not reproducible.
. . . .
Conclusion: Severe obstructive defect with positive response to bronchodilator. However, the spirometry data was not reproducible which could be due to suboptimal efforts ...

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