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In re Worker's Compensation Claim of Lysne

Supreme Court of Wyoming

September 11, 2018


          Appeal from the District Court of Laramie County The Honorable Catherine R. Rogers, Judge

          Representing Appellant: Peter K. Michael, Wyoming Attorney General; Daniel E. White, Deputy Attorney General; J.C. DeMers, Senior Assistant Attorney General

          Representing Appellee: Brian J. Hanify, Hanify Law Office, P.C., Cheyenne, Wyoming

          Before DAVIS, C.J., and BURKE [*] , FOX, KAUTZ, and BOOMGAARDEN, JJ.


         [¶1] John Lysne sought worker's compensation coverage for knee replacement surgery, which the Medical Commission (the Commission) approved. The Workers' Compensation Division (the Division) appeals, contending that Mr. Lysne did not provide adequate proof that his need for the surgery is causally related to his work injury. We affirm.


         [¶2] The Division asserts one issue, which we rephrase as:

Was the Commission's finding that Mr. Lysne's work injury caused his need for knee replacement surgery supported by substantial evidence and not contrary to law?


         [¶3] On July 22, 2013, Mr. Lysne, a roofer employed by Inman Roofing, injured his left knee while carrying shingles up a ladder and onto a roof. As he stepped onto the roof with his left foot, his leg "gave out," causing him pain. When his knee did not heal after a month, he visited his doctor, who prescribed pain medication and told him to treat the knee with rest, ice and elevation. Mr. Lysne's knee did not improve, and when he sought the renewal of his pain medication prescription, his doctor indicated that he would need an MRI. Mr. Lysne then filed a worker's compensation claim and received an MRI.

         [¶4] After reviewing the MRI, Mr. Lysne's doctor referred him to Dr. Bruce Smith, an orthopedic surgeon in Cheyenne. Dr. Smith examined Mr. Lysne on January 21, 2014, noted that he continued to experience pain, and diagnosed him with chondromalacia of the left knee, medial meniscus tear, patellar malalignment syndrome, and plica syndrome of the knee. Based upon his findings, on February 6, 2014, Dr. Smith operated on Mr. Lysne's knee, performing an arthroscopic excision of the medial meniscus tear, arthroscopic chondral shaving of the patella, femoral groove, the medial femoral condyle and the lateral tibial plateau, and an arthroscopic excision of the medial plica in the knee.

         [¶5] Post-surgery, Mr. Lysne began physical therapy. Initially, his knee did well, but as his therapy progressed, Mr. Lysne was unable to "work past the pain." Consequently, in May of 2014, Dr. Smith recommended continued physical therapy and encouraged him to seek a second opinion. In June of 2014, Mr. Lysne saw Dr. Mark McKenna, another orthopedic surgeon, who ordered a second MRI. That MRI revealed "meniscal fraying and irritation" and "swelling within the soft tissue and some cartilage damage." On July 31, 2014, Dr. McKenna performed a second arthroscopic procedure and found "a tear of the posteromedial meniscus in the posterior horn[, ] . . . loose fragments within the joint[, ] . . . and synovitis and scar tissue formation over the anterior aspect of the joint." In October of 2014, Mr. Lysne again saw Dr. McKenna and reported continued and worsening pain in the knee. Dr. McKenna gave him an intraarticular injection of pain medications in his knee to relieve his pain and suggested that Mr. Lysne undergo an MRI of his back to determine whether it was contributing to his knee problems. Based upon his review of the results of the second MRI, Dr. McKenna recommended that Mr. Lysne see a neurologist or neurosurgeon and did not think that a knee replacement would help him at that point. Accordingly, Mr. Lysne met with a neurosurgeon who ruled out his back as a cause of his knee pain.

         [¶6] On January 19, 2015, Mr. Lysne saw Dr. Jean Basta, a third orthopedic surgeon. Dr. Basta concluded that Mr. Lysne had a left medial meniscus tear, a left chondromalacia patella, and internal derangement in the left knee. Dr. Basta suspected that "he is retearing the medial meniscus because it is in a weakened state." Dr. Basta gave Mr. Lysne another injection in his knee and ordered him to use crutches and remain non-weight-bearing for six weeks, and, if the pain persisted, she would perform a third arthroscopic surgery at that time.

         [¶7] Four days after seeing Dr. Basta and at the direction of the Division, Mr. Lysne saw Dr. Ricardo Nieves for an independent medical evaluation and impairment rating evaluation (IME). Despite the fact that Mr. Lysne was non-weight-bearing and had just received an injection for continued pain in his left knee, Dr. Nieves concluded that he was at maximum medical improvement (MMI) and that he had sustained a 1% whole body physical impairment. On March 4, 2015, the Division determined that Mr. Lysne's workplace injury resulted in a 1% impairment of his left knee and awarded him benefits in the amount of $1, 509.68. Mr. Lysne objected to this determination, arguing that the conclusion that he had reached MMI was premature.

         [¶8] On March 10, 2015, at the suggestion of Dr. Edgrin, who saw Mr. Lysne for reasons unrelated to his knee, Mr. Lysne saw Dr. Charlie Yang, an orthopedic surgeon in Denver, Colorado. Dr. Yang discussed treatment options with Mr. Lysne, including a left total knee arthroplasty (replacement). Mr. Lysne indicated that he would like to pursue the surgical intervention upon obtaining worker's compensation approval. In April, Dr. Ricardo Nieves supplemented his IME evaluation, concluding that "[i]n my professional opinion within a reasonable degree of medical probability a left total knee replacement surgery is not causally related to Mr. Lysne's work injury of 7/22/2013 in which the resulting work injury was of a medial meniscus injury." On April 16, 2015, the Division denied Mr. Lysne's request for the preauthorization of his total knee replacement surgery. Mr. Lysne again objected to that determination.

         [¶9] The Division then referred Mr. Lysne to Dr. Mark Rangitsch, a fifth orthopedic surgeon, for another IME. In his May 4, 2015 report, Dr. Rangitsch explained that "further treatment options [] could help" and suggested "unicompartmental [partial] knee replacement." Subsequently, the Division referred Mr. Lysne to Dr. Greg Reichardt, a physical and rehabilitation medicine specialist, for a third IME on June 23, 2015. Dr. Reichardt concluded that a total knee replacement was not reasonable and necessary medical care for his workplace injury. Two months later, on August 17, 2015, Mr. Lysne saw a sixth orthopedic surgeon, Dr. Rocci Trumper. Dr. Trumper examined Mr. Lysne and recommended a total knee replacement.

         [¶10] After a contested case hearing on Mr. Lysne's objections to the Division's determinations, the Commission reversed the Division's March 4, 2015 and April 16, 2015 determinations. The Commission found that the physical impairment rating of 1% whole body offered by the Division was premature, that Mr. Lysne was not at a level of maximum medical improvement when he was rated by Dr. Nieves, and that he should be placed back on Temporary Total Disability payments for an additional period of time, terminating in June 2015 when he resumed gainful employment. With respect to pre-authorization for total knee replacement surgery, the Commission concluded:

The hearing panel further finds that the preauthorization request for total knee replacement surgery is reasonable and necessary under the circumstances and causally related to [Mr. Lysne's] work injury and is fully compensable.

         The Division appealed, and the district court affirmed the Commission's findings. The Division timely appeals.


         [¶11] We review an appeal from a district court's review of an administrative agency's decision as if the case came directly from the agency and give no deference to the district court. Morris v. State ex rel. Dep't of Workforce Servs., Workers' Comp. Div., 2017 WY 119, ¶ 23, 403 P.3d 980, 986 (Wyo. 2017) (citing Guerrero v. State ex rel. Dep't of Workforce Servs., Workers' Comp. Div., 2015 WY 88, ¶ 11, 352 P.3d 262, 265 (Wyo. 2015)). Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2017) establishes the scope of our review:

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
. . . .

(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:

(A) Arbitrary, capricious, an abuse of discretion or otherwise not in ...

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