IN THE MATTER OF THE WORKER'S COMPENSATION CLAIM OF: DENNIS HOWE, Appellant (Petitioner),
STATE OF WYOMING, ex rel., DEPARTMENT OF WORKFORCE SERVICES, WORKERS' COMPENSATION DIVISION, Appellee (Respondent).
from the District Court of Fremont County The Honorable
Marvin L. Tyler, Judge
Representing Appellant: Sky D Phifer, Phifer Law Office,
Representing Appellee: Peter K. Michael, Wyoming Attorney
General; Daniel E. White, Deputy Attorney General.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
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
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
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.
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.
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.
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.
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.
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.
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,  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
1. The lungs are clear with no acute cardiopulmonary
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.
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
. . . .
Conclusion: Severe obstructive defect with positive response
to bronchodilator. However, the spirometry data was not
reproducible which could be due to suboptimal efforts ...