IN THE MATTER OF THE WORKER'S COMPENSATION CLAIM OF: SARAH MORRIS, Appellant (Petitioner),
STATE OF WYOMING, ex rel., DEPARTMENT OF WORKFORCE SERVICES, WORKERS' COMPENSATION DIVISION, Appellee (Respondent).
from the District Court of Natrona County The Honorable W.
Thomas Sullins, Judge
Representing Appellant: Stephenson D. Emery of Williams,
Porter, Day & Neville, P.C.
Representing Appellee: Peter K. Michael, Wyoming Attorney
General; Daniel E. White, Deputy Attorney General; Michael J.
Finn, Senior Assistant Attorney General.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
The Medical Commission (Commission) sustained the Wyoming
Workers' Compensation Division's (Division)
termination of Sarah Morris's temporary total disability
(TTD) benefits after determining she had reached maximum
medical improvement (MMI). The Commission also upheld the
Division's denial of benefits for treatment of her right
knee on the basis that it was unrelated to her work injury.
After the district court affirmed the Commission's
decision in all respects, Ms. Morris appealed to this Court.
We conclude the Commission's determinations are supported
by substantial evidence in the record and are not contrary to
the law; consequently, we affirm.
Ms. Morris presents the following issues for our review:
A. Whether the Medical Commission appropriately determined
[Ms.] Morris had reached MMI and terminated her TTD benefits.
B. Whether substantial evidence exists to support the Medical
Commission's decision that [Ms.] Morris's injury to
her right knee was not work-related.
Division offers a similar, though more detailed, statement of
the issues for our review.
Ms. Morris is trained as a licensed practical nurse (LPN).
She worked as a residential manager for I Reach 2 Lifestyles,
an organization that provided services to disabled persons in
Casper, Wyoming. On February 3, 2011, Ms. Morris's
supervisor instructed her to move a heavy love seat out of a
house and into a garage. She attempted to move the love seat
without assistance and injured her neck and lower back.
Although Ms. Morris continued to work, she was in pain and,
on February 15, 2011, she sought treatment at an urgent care
facility. A nurse practitioner ordered X-rays of her cervical
and lumbar spine, which revealed no acute abnormalities. She
began physical therapy and took medication for pain and
In April 2011, Ms. Morris was referred to neurosurgeon Thomas
Kopitnik, M.D., and a Physician Assistant (PA) ordered an MRI
of her spine and a bilateral nerve conduction study of her
upper extremities. On April 22, 2011, Dr. Kopitnik reviewed
the MRI results, which showed an annular tear in her lumbar
spine at L4-L5 and disc ruptures in her cervical spine at
C4-C5 and C5-C6. The nerve conduction study was, however,
normal. Dr. Kopitnik recommended surgery on Ms. Morris's
cervical spine and conservative treatment for her lumbar
spine with an epidural steroid injection. Ms. Morris worked
until July 13, 2011, and the next day, July 14, 2011, she
underwent an anterior cervical discectomy and fusion of C4-C5
and C5-C6. Dr. Kopitnik certified her as unable to work, and
the Division approved payment of TTD benefits.
Ms. Morris saw Dr. Kopitnik on September 19, 2011,
complaining of continuing neck pain and "severe low back
pain." After reviewing the results of a lumbar
discogram, Dr. Kopitnik determined that conservative
treatment of her lumbar spine had failed and recommended she
undergo lower back fusion surgery. On January 3, 2012, Dr.
Kopitnik performed a transforaminal lumbar interbody fusion
at L4-L5 and L5-S1 with placement of hardware. Dr. Kopitnik
continued to certify Ms. Morris for TTD benefits. On January
19, 2012, Ms. Morris complained of continuing low back pain
and also of left leg pain. X-rays "demonstrated
excellent position of the construct" without "any
hardware complications, " and a myelogram showed "a
nice decompression and no obvious compression of her nerve
roots in her lower lumbar spine."
After that, Ms. Morris's condition improved for a time.
The note from her April 2, 2012, appointment stated:
She has been doing relatively well since her last
appointment. She has been doing well regarding her back. She
has beg[u]n to experience some neck spasms in the posterior
aspect of the cervical spine. She does note that she has been
increasing her activity and going to the gym more.
of the lumbar spine at that point showed "good position
and alignment of hardware with fusion occurring."
At her May 14, 2012, appointment, Ms. Morris reported that
she continued to have some low back pain, but did not mention
leg pain. Her examination was "normal, " and Dr.
Kopitnik planned to start weaning her from the back brace and
pain medication. Dr. Kopitnik's note from Ms.
Morris's July 2, 2012, appointment stated that he had
"given her temporary disability for an additional six
weeks. Otherwise, [he] liberalized her activity. She has felt
better since discontinuing her brace. She is continuing with
On September 10, 2012, Ms. Morris apparently reported a
change to Dr. Kopitnik's PA. The "Subjective"
portion of the appointment notes stated that she was
struggling with low back pain which had initially subsided
but now had worsened. The "Objective" section
stated that her strength remained 5/5 throughout, cervical
range of motion was good, her lumbar range of motion was good
"with some mild pain with lumbar extension." The
notes also stated that she was able to stand on her toes and
heels without difficulty, her gait was normal, and the
"sensory exam" was "within normal limits to
light touch throughout." The PA concluded that she was
clinically stable, although she had some continuing low back
pain. He ordered an S1 joint injection on the left side to
"see if she gets some decent relief." The PA
thought "some more time and allowing this fusion to
mature" would hopefully provide some better relief.
Less than a month later, Ms. Morris returned to the clinic.
This time she complained of neck, lumbar and thoracic spine
pain, but her examination was normal. Dr. Kopitnik ordered a
total spine myelogram which showed solid fusions in her
cervical and lumbar spine, with "no obvious disc
ruptures and no obvious nerve root compression in her
cervical, thoracic or lumbar spine." Dr. Kopitnik
diagnosed her as suffering from "post laminectomy and
post fusion syndrome with continued low back pain" and
referred her to Dr. Todd Hammond, a pain management
specialist, for a spinal cord stimulator trial to see if it
would help with her pain. According to Dr. Hammond, a spinal
cord stimulator is a mechanical device with an electrical
lead that is placed along the spinal cord. The electrical
impulse inhibits the amount of pain signal that reaches the
brain. In other words, it tricks the nervous system into not
recognizing the pain. Throughout this time, Dr. Kopitnik
continued to certify Ms. Morris as temporarily totally
The Division referred Ms. Morris to Dr. Paul Ruttle for an
orthopedic medical evaluation and permanent partial
impairment (PPI) rating. Dr. Ruttle reviewed Ms. Morris's
medical records and examined her on October 25, 2012. He
stated in his report Ms. Morris informed him that, although
her cervical and low back pain had decreased since the
injury, she continued to suffer with pain and her physicians
were considering placement of a spinal cord stimulator. She
also reported to Dr. Ruttle that she had weakness and
paresthesias in her upper extremities. Paresthesia means
"[a] skin sensation, such as burning, prickling,
itching, or tingling, with no apparent physical cause."
American Heritage Stedman's Medical Dictionary (2002).
With regard to her lumbar spine, Dr. Ruttle reported that Ms.
Morris complained of bilateral low back muscle pain radiating
into the right buttock. She also complained of thigh pain
radiating to her knees, which was worse on the left than the
right. Dr. Ruttle stated in his report:
The patient's physical examination today reveals
limitation of neck and lumbar spine range of motion, all
planes tested. The remainder of the patient's examination
is completely normal. Arm and forearm circumferences are
equal in upper extremities. Thigh and calf circumferences are
equal in lower extremities. Neurological examination is
completely normal in upper and lower extremities.
There is no objective evidence to support neurological
complaints of on-going symptoms in right and left upper and
lower extremities in this patient.
Ruttle concluded that Ms. Morris's fusions appeared to
have healed and she was "capable of returning to prior
job activities" with certain lifting limitations. He
said her "subjective complaints appear completely out of
proportion to objective findings, " and there was no
evidence of "ongoing radiculopathy." Radiculopathy
is defined as:
significant alteration in the function of a single or
multiple nerve roots and is usually caused by mechanical or
chemical irritation of one or several nerves. The diagnosis
requires clinical findings including specific dermatomal
distribution of pain, numbness, and/or parasthesias.
Subjective reports of sensory changes are more difficult to
assess; therefore, these complaints should be consistent and
supported by other findings of radiculopathy. There may be
associated motor weakness and loss of reflex. A root tension
sign is usually positive. The identification of a condition
that may be associated with radiculopathy (such as a
herniated disk) on an imaging study is not sufficient to make
a diagnosis of radiculopathy; clinical findings must
correlate with radiographic findings in order to be
Hurt v. State of Wyo., ex rel. Dep't of Workforce
Servs., Workers' Safety & Comp. Div., 2015 WY
106, ¶ 19, 355 P.3d 375, 381 (Wyo. 2015), quoting the
AMA Guides to Evaluation of Permanent Impairment,
Sixth Edition (hereinafter AMA Guides).
Dr. Ruttle stated there was no indication for a spinal cord
stimulator, but that if a spinal cord stimulator was
considered, he "strongly recommended that [Ms. Morris]
undergo a thorough psychologic evaluation to assess for
psychological barriers to recovery." Dr. Ruttle applied
the AMA Guides and concluded that Ms. Morris had
permanent impairment of five percent (5%) of the whole person
for her cervical spine and six percent (6%) of the whole
person for her lumbar spine, resulting in a total whole
person impairment rating of eleven percent (11%). Based on
Dr. Ruttle's evaluation, the Division issued a final
determination on November 13, 2012, terminating Ms.
Morris's TTD benefits as of November 7, 2012.
On November 21, 2012, Ms. Morris apparently saw Melissa
Jenkins, Ph.D. for a psychological evaluation. Although that
evaluation was not included in the record provided to the
Commission, Dr. Ruttle reviewed Ms. Jenkins' evaluation
in a subsequent report. The evaluation stated that Ms. Morris
had "'marked risks' for rating high pain
sensitivity and catastrophizing pain symptoms." However,
Ms. Jenkins concluded Ms. Morris's "prognosis for
postsurgical outcome" was good and "provided a
favorable recommendation for placement of a spinal cord
stimulator." On November 30, 2012, Dr. Hammond submitted
a request to the Division for preauthorization of a spinal
cord stimulator trial for Ms. Morris.
On December 17, 2012, Dr. Kopitnik's PA examined Ms.
Morris and reviewed the results of a myelogram which showed
fusion at both surgical areas and no adjacent disc disease in
either area. However, the PA stated that Ms. Morris was
"pretty miserable, " so they were "trying to
get Workers' Comp. to [ap]prove a spinal cord stimulator
trial in an effort to relieve her pain and hopefully get her
back to work at some capacity." He recommended a nerve
root block injection and referred her to Dr. David Martorano,
a psychiatrist with board certification in addiction, for his
"input and treatment options." Barry Beutler, M.D.
performed a left S1 nerve root block for diagnostic and
therapeutic purposes that same day.
On January 24, 2013, the Division denied Dr. Hammond's
request for preauthorization of a spinal cord stimulator
trial for Ms. Morris. On January 28, 2013, Dr. Kopitnik's
PA saw Ms. Morris again. His notes indicate that the S1
injection by Dr. Beutler relieved her "leg pain
completely and her low back pain for about 3 weeks."
However, the PA stated that Ms. Morris continued to require
daily narcotic pain medications, muscle relaxants and
anti-inflammatories. He stated that there was not a lot more
to be done from a neurosurgical standpoint. The PA said he
would double check with Dr. Martorano because Ms. Morris had
not yet been contacted by his office and would wait on a
"clear" decision from the Division regarding the
spinal cord stimulator.
Ms. Morris requested a second opinion on her PPI rating and
was seen by Dr. Ricardo Nieves on February 21, 2013. After
examining Ms. Morris and reviewing her medical records, Dr.
Nieves listed her diagnoses as: 1) status post cervical and
lumbar spine fusions; 2) non-verifiable radicular complaints;
and 3) subjective complaints out of proportion to the
objective findings, suggesting "inappropriate illness
behavior." He concluded Ms. Morris had reached MMI, no
additional surgical procedures were needed, and a spinal cord
stimulator was not indicated because there was no finding of
radiculopathy and her psychiatric state was unstable. Dr.
Nieves rated Ms. Morris's PPI as 11% of the whole person.
Given both PPI ratings were 11% of the whole body, the
Division issued a final determination with that rating.
Over the next several months, Ms. Morris received more
injections in her lumbar and cervical spine from Dr. Beutler.
Dr. Nino Dobrovic took over her pain management care in the
summer of 2013. On July 25, 2013, Dr. Dobrovic treated Ms.
Morris with cervical and lumbar spine injections. At a
follow-up appointment on August 5, 2013, Dr. Dobrovic was
puzzled because Ms. Morris "derived no benefit and
paradoxically reported increased pain about the neck and back
despite the fact that anesthetics had been used" in the
injections. He also noted that, despite her reports of
continuing pain, the lumbar fusion was in "excellent
alignment" and she is "neurologically intact."
Dr. Dobrovic also treated Ms. Morris's lumbar spine with
rhizotomy (cauterization of the nerves).
Although Ms. Morris had been referred to a psychiatrist, Dr.
Martorano, in December 2012, she saw him for the first time
on August 9, 2013. His notes from that visit stated that she
had "a history of worsening depression since an
injury." Dr. Martorano stated in his deposition that he
had trouble treating Ms. Morris because she did not provide
medical records to him early on and she was a "difficult
historian" and hard to ...