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In re Worker's Compensation Claim of Morris

Supreme Court of Wyoming

October 5, 2017


         Appeal 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.

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

          KAUTZ, Justice.

         [¶1] 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.


         [¶2] 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.

         The Division offers a similar, though more detailed, statement of the issues for our review.


         [¶3] 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.

         [¶4] 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 inflammation.

         [¶5] 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.

         [¶6] 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."

         [¶7] 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.

         X-rays of the lumbar spine at that point showed "good position and alignment of hardware with fusion occurring."

         [¶8] 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 physical therapy."

         [¶9] 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.

         [¶10] 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 disabled.

         [¶11] 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).

         [¶12] 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.

         Dr. 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 considered.

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).

         [¶13] 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.

         [¶14] 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.

         [¶15] 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.

         [¶16] 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.

         [¶17] 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.

         [¶18] 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).

         [¶19] 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 ...

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