Deana v. Landwehr, a/k/a Deana Streubing v. State of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division , 2014 Wyo. LEXIS 26 ( 2014 )

IN THE SUPREME COURT, STATE OF WYOMING
2014 WY 25
OCTOBER TERM, A.D. 2013
February 21, 2014
DEANA V. LANDWEHR, a/k/a DEANA
STREUBING,
Appellant
(Petitioner),
v.
No. S-13-0139
STATE OF WYOMING, ex rel., WYOMING
WORKERS’ SAFETY AND COMPENSATION
DIVISION,
Appellee
(Respondent).
Appeal from the District Court of Laramie County
The Honorable Thomas T.C. Campbell, Judge
Representing Appellant:
Dana J. Lent, Attorney at Law, Torrington, Wyoming.
Representing Appellee:
Peter K. Michael, Attorney General; John D. Rossetti, Deputy Attorney General;
Michael J. Finn, Senior Assistant Attorney General; Brenda S. Yamaji, Assistant
Attorney General.
Before KITE, C.J., and HILL, VOIGT*, BURKE, and DAVIS, JJ.
*Justice Voigt retired effective January 3, 2014.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers
are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming
82002, of any typographical or other formal errors so that correction may be made before final publication in
the permanent volume.
BURKE, Justice.
[¶1] The Wyoming Workers’ Safety and Compensation Division awarded benefits to
Appellant, Deana Landwehr, after she experienced a workplace injury to her back in
1999. In 2008, Ms. Landwehr experienced a second workplace injury while employed in
Nebraska. In 2010, Ms. Landwehr sought payment for prescription medication that she
claimed was necessary treatment relating to her 1999 workplace injury. The Division
denied the claim. Ms. Landwehr requested a contested case hearing, and the hearing
examiner upheld the Division’s denial of benefits. Ms. Landwehr appealed to the district
court, which affirmed the hearing examiner’s order. She challenges the district court’s
decision in this appeal. We affirm.
ISSUE
[¶2] Ms. Landwehr presents the following issue:
Was the hearing examiner’s determination that Appellant
failed to satisfy her burden of proof unsupported by
substantial evidence in the record as a whole?
FACTS
[¶3] In August, 1999, Ms. Landwehr sustained a work-related injury while working as
a nursing assistant for Cheyenne Health Care Center. Ms. Landwehr hurt her back when
she attempted to lift a patient from her wheelchair. Six days later, she sought medical
treatment at a primary care clinic, where she reported mid-back pain and “an associated
extremity numbness and tingling . . . intermittent with this pain.” Dr. John J. Viola saw
Ms. Landwehr approximately three weeks later for a neurosurgical consultation. After
performing a physical examination, Dr. Viola concluded that Ms. Landwehr “has
predominantly elements of a thoracic strain” and that physical therapy would likely be
the most appropriate treatment.
[¶4] In September, 1999, Dr. Viola ordered an MRI of Ms. Landwehr’s back, which
revealed the following findings:
The alignment of the thoracic spine is normal. There is
normal bone marrow signal in each vertebral body with no
evidence of hemorrhage or bone marrow replacement. There
is mild disc space narrowing in the mid thoracic spine at T6-
7, T7-8, and T8-9 but no evidence of disc herniation or thecal
sac impingement. No impingement of the thoracic spinal
cord. The cord is normal in size and signal at all points and
no posterior abnormalities or paravertebral abnormalities.
1
In the “Impression” section of the report, it was noted that there were “No focal findings
to explain mid back pain.” At a follow-up visit on September 10, Dr. Viola noted that
Ms. Landwehr’s symptoms had “neither improved nor worsened.”
[¶5] Ms. Landwehr began participating in a physical therapy program, and, after an
evaluation on October 1, Dr. Viola noted that she was “making progress in physical
therapy.” In a progress note dated November 3, Ms. Landwehr’s physical therapist noted
that her “primary complaints continue to be focused in the thoracic spine.” However,
after Dr. Viola evaluated Ms. Landwehr in December, he noted for the first time that she
was having neck pain and headaches in addition to numbness in her right hand. Dr. Viola
referred Ms. Landwehr to Dr. Harlan R. Ribnik, a pain management physician, who
ordered another MRI of Ms. Landwehr’s back. That MRI also revealed that “Disc height
and disc signal intensity is normal at every level.” The “Impression” section of the MRI
report stated that there was “No [magnetic resonance] evidence of focal cervical disc
herniation to explain the neck pain” and “no evidence of a C5-C6 disc herniation.”
Dr. Ribnik gave Ms. Landwehr a cervical epidural steroid injection on January 6, 2000,
but she received “minimal, if any relief from her pain.” As a result of her injury,
Ms. Landwehr received temporary total disability benefits from the Division. After those
benefits expired, she went back to work as a unit secretary.
[¶6] In June, 2000, Dr. Viola referred Ms. Landwehr to Dr. Reed Shafer, who
conducted an electrodiagnostic study of Ms. Landwehr’s upper extremities. The nerve
study revealed that Ms. Landwehr “does not have evidence of primary muscle disease or
nerve root problems” but that she “certainly does have evidence of median neuropathy at
the level of the wrist, compatible with her clinical carpal tunnel syndrome.” At a follow-
up visit, Dr. Viola diagnosed Ms. Landwehr with “carpal tunnel syndrome right greater
than left.” Dr. Viola stated that “it is reasonable for [Ms. Landwehr] to consider surgical
release of her carpal tunnel syndrome” and noted that Ms. Landwehr indicated her
willingness to proceed with the necessary surgery. There is no indication in the record,
however, that Ms. Landwehr ever opted to undergo surgery to treat her carpal tunnel
syndrome. Dr. Viola prescribed Celebrex to relieve Ms. Landwehr’s carpal tunnel
symptoms. In September, 2000, Ms. Landwehr received a 12% whole body impairment
rating as a result of her workplace injury, and the Division awarded permanent partial
impairment benefits to Ms. Landwehr.
[¶7] Over the next several years, Ms. Landwehr continued to report “neck, shoulder,
[and] right upper extremity pain,” as well as headaches, to multiple treating physicians.
In 2003, her primary care physician, Dr. Jeanette Larson, diagnosed her with
fibromyalgia, which she treated with various prescription medications, including Flexeril,
Neurontin, and Tramadol. In 2004, Ms. Landwehr moved to Ogallala, Nebraska, but she
continued to see Dr. Ribnik on a semi-annual basis until April, 2005 when, according to
Ms. Landwehr, he refused to see her or refer her to another doctor.
2
[¶8] In September, 2006, Ms. Landwehr saw Dr. Kurt Hopfensperger in Cheyenne for a
neurologic consultation. In his report of the evaluation, Dr. Hopfensperger noted that a
review of Ms. Landwehr’s systems revealed, among other ailments, “fatigue, chronic
sinus drainage, frequent headaches, lightheadedness, numbness and tingling, joint pain,
joint stiffness, muscle weakness, muscle pain, back pain, cold extremities, difficulty
walking, peptic ulcer, nervousness, insomnia, [and] depression[.]” Although
Dr. Hopfensperger was unable to diagnose any specific disease or disorder based on
Ms. Landwehr’s symptoms, he prescribed duloxetine (Cymbalta) to treat Ms. Landwehr’s
headaches and the symptoms in her extremities. Dr. Hopfensperger ordered an MRI of
Ms. Landwehr’s thoracic spine, which revealed that “Thoracic marrow signal intensity is
normal. There is no significant canal stenosis. No significant disc herniations are
identified.” After a follow-up visit in April, 2007, Dr. Hopfensperger noted that
Ms. Landwehr had stated that the duloxetine was “working good,” but that she “continues
however to have neck and back pain, as well as tingling in her upper extremities distally.”
He noted that “Regarding her neck and back pain, I do not [have] anything to offer this
patient.” After determining that Ms. Landwehr’s MRI was “negative,” Dr. Hopfensperger
ordered a nerve conduction study. That study revealed, similar to the previous nerve
conduction study ordered by Dr. Viola, that Ms. Landwehr had “[a]dvanced right carpal
tunnel syndrome” and “[m]oderate left carpal tunnel syndrome.”
[¶9] In January, 2008, Ms. Landwehr experienced a second work-related injury while
employed in the bakery at a grocery store in Nebraska. According to Ms. Landwehr, she
was injured when a ten-pound muffin pan fell from a drying rack and struck her on the
head, shoulder, and shin. She experienced severe headaches, nausea, vomiting, dizziness,
and confusion as a result of her injury. After this incident, Ms. Landwehr sought
treatment at the Sandhills District Health Clinic, where she was seen by Nurse Frankie
Cordova. Nurse Cordova noted that “Patient is being seen here today for headaches. She
was hit in the head with a tin pan and she thinks maybe that is what is causing them.”
Ms. Landwehr controlled her pain with prescription medication until her headaches
returned in March, 2008. At that point, Nurse Cordova ordered an MRI, but the results
were “unremarkable.” Ms. Landwehr was subsequently referred to a neurologist in
Nebraska, but no notes from that visit are contained in the record. In April,
Ms. Landwehr saw Dr. Hopfensperger for her annual follow-up visit.
Dr. Hopfensperger’s notes from that visit provide, in relevant part, as follows:
Ms. Landwehr returns for annual follow-up today. She found
that Cymbalta was “doing great” for her pain until several
months ago when she was struck by a 10 pound muffin [pan]
at work, and was hit in [the] head. She was diagnosed by her
physician as having whiplash, and was prescribed Neurontin
and Midrin for headaches. She also tried Lyrica which was of
no benefit. She tells me that her physician is sending her to
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another neurologist in North Platte, Nebraska to workup a
possible new neck injury related to a work injury.
...
This patient was sent to me for various issues related to
workers comp injury and I have treated her with Cymbalta
with some success. She is now being apparently referred by
her primary physician to another neurologist in Nebraska. I
refilled her Cymbalta as it has worked for her, and my guess
is this other neurologist will therefore workup any further
issues. I will see her back in a year if she is still taking the
Cymbalta prescribed by this office, but otherwise she does
not need to return to this office. This was discussed with
patient and she is in agreement.
Ms. Landwehr filed a worker’s compensation claim in Nebraska relating to her 2008
injury and subsequently settled that claim.
[¶10] Ms. Landwehr returned to Dr. Hopfensperger in April, 2009, to renew her
duloxetine prescription. However, in April, 2010, when Ms. Landwehr went to see
Dr. Hopfensperger for her annual prescription renewal, she was informed that the
appointment was cancelled because it was no longer being covered by the Division. On
April 1, 2010, the Division issued a Final Determination denying payment for her
medical treatment based on the definition of “injury” set forth in Wyo. Stat. Ann. § 27-
14-102(a)(xi) (LexisNexis 2009).1 The Final Determination stated that “Information has
been received and reviewed indicating an intervening incident occurred” and that the
“current treatment and medications are unrelated to the original Workers’ Compensation
injury of August 6, 1999.” Ms. Landwehr objected to the denial of benefits, and the
matter was referred to the Office of Administrative Hearings for a contested case hearing.
1
Wyo. Stat. Ann. § 27-14-102(a)(xi) provides, in pertinent part, as follows:
(xi) “Injury” means any harmful change in the human organism other
than normal aging and includes damage to or loss of any artificial
replacement and death, arising out of and in the course of employment
while at work in or about the premises occupied, used or controlled by
the employer and incurred while at work in places where the employer’s
business requires an employee’s presence and which subjects the
employee to extrahazardous duties incident to the business.
4
[¶11] Ms. Landwehr’s contested case hearing was held on March 24, 2011. The hearing
examiner was presented with Ms. Landwehr’s medical records, as well as the deposition
testimony of Dr. Hopfensperger, and heard live testimony from Ms. Landwehr. On April
25, 2011, the hearing examiner issued an order upholding the Division’s denial of
benefits. The hearing examiner concluded that Ms. Landwehr “did not prove the
requisite causal connection between her present complaints of headaches and her 1999
work related mid-thoracic strain.” Ms. Landwehr filed a petition for judicial review in
district court, and the district court affirmed. Ms. Landwehr filed a timely appeal from
the district court’s decision. Additional facts will be presented as necessary in the
discussion below.
STANDARD OF REVIEW
[¶12] Review of an administrative agency’s action is governed by the Wyoming
Administrative Procedure Act, which provides that:
(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 accordance with law;
(B) Contrary to constitutional right, power, privilege or
immunity;
(C) In excess of statutory jurisdiction, authority or
limitations or lacking statutory right;
(D) Without observance of procedure required by law;
or
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(E) Unsupported by substantial evidence in a case
reviewed on the record of an agency hearing provided
by statute.
Wyo. Stat. Ann. § 16-3-114(c). We review an administrative agency’s findings of fact
pursuant to the substantial evidence test. Dale v. S & S Builders, LLC, 2008 WY 84, ¶
22, 188 P.3d 554, 561 (Wyo. 2008). Substantial evidence is relevant evidence which a
reasonable mind might accept in support of the agency’s conclusions. Id., ¶ 11, 188 P.3d
at 558. Findings of fact are supported by substantial evidence if, from the evidence in the
record, this Court can discern a rational premise for the agency’s findings. Middlemass v.
State ex rel. Wyo. Workers’ Safety & Comp. Div., 2011 WY 118, ¶ 11, 259 P.3d 1161,
1164 (Wyo. 2011).
[¶13] When the hearing examiner determines that the burdened party failed to meet his
burden of proof, we must decide whether that determination was contrary to the
overwhelming weight of the evidence. Leavitt v. State ex rel. Wyo. Workers’ Safety &
Comp. Div., 2013 WY 95, ¶ 18, 307 P.3d 835, 840 (Wyo. 2013). We defer to the hearing
examiner’s determination of witness credibility unless it is clearly contrary to the
overwhelming weight of the evidence. Id. “If, in the course of its decision making
process, the agency disregards certain evidence and explains its reasons for doing so
based upon determinations of credibility or other factors contained in the record, its
decision will be sustainable under the substantial evidence test.” Dale, ¶ 22, 188 P.3d at
561.
DISCUSSION
[¶14] A claimant in a worker’s compensation case has the burden of proving all of the
elements of the claim by a preponderance of the evidence. Mitcheson v. State ex rel.
Wyo. Workers’ Safety & Comp. Div., 2012 WY 74, ¶ 11, 277 P.3d 725, 730 (Wyo. 2012).
As part of that burden, the claimant must prove a causal connection exists between a
work-related injury and the injury for which workers’ compensation benefits are sought.
Id. A preponderance of the evidence is “proof which leads the trier of fact to find that the
existence of the contested fact is more probable than its non-existence.” Id. (quoting
Kenyon v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2011 WY 14, ¶ 22, 247 P.3d
845, 851 (Wyo. 2011). A claimant must satisfy this burden for all outstanding claims
despite previous awards for the same injury. Hall v. State ex rel. Wyo. Workers’ Comp.
Div., 2001 WY 136, ¶ 14, 37 P.3d 373, 377 (Wyo. 2001). The worker’s compensation
statutes do “not guarantee a claimant future benefits on the basis of a prior award nor
does public policy favor the payment of an unjustified worker’s compensation claim.”
Id. It is undisputed that Ms. Landwehr experienced a compensable injury in August,
1999. However, Ms. Landwehr also had the burden to prove, by a preponderance of the
evidence, that her 2010 symptoms were causally related to her workplace injury.
Ms. Landwehr contends the hearing examiner’s conclusion that there was no causal
6
connection between her 1999 workplace injury and her 2010 symptoms was not
supported by substantial evidence.
[¶15] Initially, we note that Ms. Landwehr appears to claim in this appeal that her neck,
shoulder, and upper extremity symptoms, in addition to her headaches, were caused by
her original workplace injury, in 1999. However, the issue addressed by the hearing
examiner in this case was whether “[Ms.] Landwehr’s headaches are related to the lifting
injury she suffered on August 6, 1999.” As indicated in the discussion below,
Dr. Hopfensperger offered no opinion as to the cause of any of the symptoms claimed by
Ms. Landwehr other than her headaches. Additionally, we note that Dr. Hopfensperger
stated, as early as 2007, that he did not have “anything to offer” Ms. Landwehr with
respect to her neck and back pain. Further, Dr. Hopfensperger made no mention of any
symptoms in Ms. Landwehr’s neck, shoulder, or upper extremities following her last visit
with him in April, 2009. Consequently, we confine our review to the issue of whether
substantial evidence supports the hearing examiner’s determination that Ms. Landwehr’s
headaches were not causally related to her 1999 workplace injury. We find that the
hearing examiner’s conclusion is supported by substantial evidence.
[¶16] The hearing examiner recognized that Ms. Landwehr claimed to have experienced
different symptoms as a result of her 1999 and 2008 workplace injuries. The hearing
examiner noted as follows:
Landwehr described the headaches she experienced from
being struck on the head in Nebraska as intense for six
months. Landwehr attempted to differentiate the headaches
she experienced in 1999 from those she experienced in 2008.
Landwehr testified that in 1999 the headaches were “real
severe” but the nausea was not as severe as she experienced
in 2008. Landwehr also testified she was not belligerent in
1999.
The hearing examiner, however, determined that Ms. Landwehr was not a credible
witness, in part because she had not candidly informed her treatment providers of her
medical history:
In reviewing the extensive documentation submitted in this
matter, a number of things concerned this Office. To begin,
in reviewing the documents generated by Nurse Cordova in
Nebraska beginning January 10, 2008, this Office noted that
Landwehr made no mention to her Nebraska health care
providers of her claimed work related injury in Wyoming.
This was particularly noticeable as Landwehr’s complaints in
Nebraska related to headaches, neck and shoulder pain along
7
with associated nausea and an aversion to physical therapy.
These were the same complaints she voiced for seven years in
Wyoming to various health care providers. In addition, this
Office noted Landwehr made no mention to her Nebraska
health care providers that she was taking Cymbalta
throughout her entire course of treatment in Nebraska.
Indeed, as noted above, Nurse Cordova’s notes consistently
related Landwehr’s injury in Nebraska to [] headaches related
to an on-the-job injury of blunt trauma. Thus, her Nebraska
health care providers were kept in the dark concerning
Landwehr’s claimed injury in Wyoming, despite the
noticeably similar symptoms reported by Landwehr to her
Wyoming health care providers. . . . Landwehr was trained as
a CNA so the failure to inform Nebraska health care
providers of her Wyoming claim was glaring. This Office
also noted that Landwehr filed her Nebraska worker’s
compensation claim under the [sur]name of Carter. . . . Thus,
this discovery was only made after Landwehr had received
months of medical care in Nebraska and had received a
monetary settlement of her claim in Nebraska. These
concerns are noted as they caused this Office concern about
Landwehr’s veracity.
Additionally, the hearing examiner noted that Ms. Landwehr stated that she was not
experiencing headaches as of her visit to the Sandhills Clinic in May, 2006.
Ms. Landwehr gave the following testimony at the contested case hearing:
Q: What did they prescribe for your headaches at Sand Hills?
A: Um, I didn’t have the headaches. I never complained of
headaches. My headaches had almost – didn’t bother me
hardly at all. . . .
Q: So basically your headaches had gotten better before you
were hit with the muffin pan?
A: Yes, they had. Yeah.
However, Ms. Landwehr’s medical records reveal that she reported having “frequent
headaches” during her initial neurologic consultation with Dr. Hopfensperger in
September, 2006, and that Dr. Hopfensperger prescribed duloxetine, in part, to treat her
headaches.
8
[¶17] As we have previously stated, we give substantial deference to a hearing
examiner’s credibility findings: “Credibility determinations are the unique province of
the hearing examiner, and we eschew re-weighing those conclusions. We defer to the
agency’s determination of witness credibility unless it is clearly contrary to the
overwhelming weight of the evidence.” Willey v. State ex rel. Wyo. Workers’ Safety &
Comp. Div., 2012 WY 144, ¶ 20, 288 P.3d 418, 427 (Wyo. 2012) (quoting Beall v. Sky
Blue Enters., 2012 WY 38, ¶ 28, 271 P.3d 1022, 1034 (Wyo. 2012)). The evidence
contained in the record supports the hearing examiner’s finding that Ms. Landwehr failed
to provide complete medical histories to various treatment providers and that she did not
report consistent symptoms to her treatment providers in Nebraska and Wyoming.
Accordingly, we are unable to find that the hearing examiner’s determination with
respect to Ms. Landwehr’s credibility was clearly contrary to the overwhelming weight of
the evidence.
[¶18] Additionally, we note that expert medical testimony was necessary to establish
causation in this case due to the amount of time that had elapsed since Ms. Landwehr’s
1999 workplace injury, the intervening injury in Nebraska in 2008, and the complex
nature of Ms. Landwehr’s symptoms and medical history. 2 Where expert testimony is
necessary to establish causation, we have stated that
“[T]he causal connection between an accident or condition at
the workplace is satisfied if the medical expert testifies that it
is more probable than not that the work contributed in a
material fashion to the precipitation, aggravation or
acceleration of the injury. We do not invoke a standard of
reasonable medical certainty with respect to such causal
connection. Testimony by the medical expert to the effect that
the injury ‘most likely,’ ‘contributed to,’ or ‘probably’ is the
product of the workplace suffices under our established
standard . . . .
[U]nder either the ‘reasonable medical probability’ or ‘more
probable than not’ standard, [a claimant succeeds] in
demonstrating the causal connection by a preponderance of
the evidence.”
2
We have stated that “[i]t is only where injuries are so immediately and directly or naturally and probably
the result of an accident, [that] medical evidence is not essential to find a causal connection.” Hampton v.
State ex rel. Wyo. Workers’ Safety & Comp. Div., 2013 WY 17, ¶ 14, 296 P.3d 934, 938 (Wyo. 2013)
(quoting Thornberg v. State ex rel. Wyo. Workers’ Comp. Div., 913 P.2d 863, 867 (Wyo. 1996)).
Ms. Landwehr does not dispute the fact that medical expert testimony was necessary to establish
causation.
9
Anastos v. Gen. Chem. Soda Ash, 2005 WY 122, ¶ 20, 120 P.3d 658, 666 (Wyo. 2005)
(quoting Hall, ¶ 16, 37 P.3d at 378). However, “opinions expressed by medical experts
in terms of ‘can,’ ‘could,’ or ‘possibly’ are not sufficient to meet an employee’s burden
of proof.” Middlemass, ¶ 28, 259 P.3d at 1168 (quoting Boyce v. State ex rel. Wyo.
Workers’ Safety & Comp. Div., 2005 WY 9, ¶ 21, 105 P.3d 451, 458 (Wyo. 2005)).
Further, we have held that a claimant fails “to prove causation when [her] physician
testifies causation was ‘certainly a possibility,’ but could not make an ‘authoritative
statement.’” KG Constr., Inc. v. Sherman, 2005 WY 116, ¶ 15, 120 P.3d 145, 149 (Wyo.
2005) (quoting Thornberg, 913 P.2d at 869).
[¶19] The only medical expert who testified in this case was Dr. Hopfensperger. During
his deposition, when he was asked “[h]ow much of [Ms. Landwehr’s] current symptoms
are due to [the 1999 workplace injury] as opposed to other factors,” Dr. Hopfensperger
stated that “I think that would be pretty speculative.” Dr. Hopfensperger subsequently
confirmed his opinion, in the following exchange, that a causal relationship between
Ms. Landwehr’s 1999 injury and her 2010 headaches would be “speculative.”
Q: And as we sit here today, the cause of the headaches is
idiopathic, is that accurate . . . ?
A: I correlated her headaches with her reporting that they
came on after injury in 1999. The actual cause of the
headaches, I think, is idiopathic at this time.
...
Q: Doctor, when you say their cause is idiopathic, tell me
what you’re inferring.
A: Maybe a better word, if you don’t mind my going back
and retracting slightly. Maybe a better word is that it’s an
occult cause, so we don’t know. . . . In her case she had told
me that she did not have the headaches before this 1999
injury, and had the headaches after the 1999 injury. I felt
there was a correlation there.
...
Q: As you stated earlier, the causal relationship is
speculative?
A: Correct.
10
...
Q: It’s speculative in what regards?
A: Well, cause versus correlation.
Q: Just [flesh] it out for us. You can see where we’re going
here.
A: I understand. A patient, she comes in and she says she
didn’t have headaches before this injury in 1999, and she has
headaches afterwards. There was some sort of injury
involving the spinal column, which, of course, can often
present with symptoms that involve the neck or the head, as
the musculature is fairly contiguous, and, therefore, I felt
there was correlation. Now, the actual causation I really
couldn’t say.
Dr. Hopfensperger’s testimony that Ms. Landwehr’s 2010 symptoms were “idiopathic”
and “occult” is not sufficient to establish that Ms. Landwehr’s symptoms were more
likely than not caused by her 1999 workplace injury. Contrary to Ms. Landwehr’s
suggestion, there is no evidence in the record indicating that Dr. Hopfensperger opined
that her 2010 symptoms were a “direct and continuing consequence” of her 1999
workplace injury.
[¶20] Further, the hearing examiner appropriately discounted the weight of
Dr. Hopfensperger’s testimony because it was based largely on information provided by
Ms. Landwehr, who, as noted above, was found to lack credibility. The hearing examiner
further noted that Dr. Hopfensperger did not have medical records relating to (1)
Ms. Landwehr’s physical therapy following her 1999 injury; (2) the results of Dr. Viola’s
diagnostic studies; (3) Ms. Landwehr’s extensive treatment with Dr. Ribnik; or (4)
psychological evaluations indicating that Ms. Landwehr suffered from depression. The
hearing examiner concluded that “Because he lacked so much of Landwehr’s medical
history, Dr. Hopfensperger’s opinion based upon the correlation reported to him by
Landwehr is given very little weight.”
[¶21] We have previously noted that the hearing examiner has the responsibility, as the
trier of fact, to determine relevancy, assign probative value, and ascribe the relative
weight to be given to the evidence presented. Anastos, ¶ 20, 120 P.3d at 666. In
weighing medical opinion testimony, the fact finder considers: (1) the opinion; (2) the
reasons, if any, given for it; (3) the strength of it; and (4) the qualifications and credibility
of the witness or witnesses expressing it. Id. We have stated that “The hearing examiner
11
[is] also in the best position to judge the weight to be given to the medical evidence” and
“may disregard an expert opinion if he finds the opinion unreasonable or not adequately
supported by the facts upon which the opinion is based.” Id. Considering that
Dr. Hopfensperger stated that he “couldn’t say” whether Ms. Landwehr’s 2010 headaches
were caused by her 1999 workplace injury, and that this opinion was offered without the
benefit of Ms. Landwehr’s complete medical history, the hearing examiner’s decision to
give “very little weight” to Dr. Hopfensperger’s testimony is also supported by
substantial evidence.
[¶22] In sum, the evidence in this case does not support Ms. Landwehr’s claim that the
headaches she experienced in 2010 were related to the initial workplace injury to her
mid-back. During the 11 years that elapsed since her initial workplace injury,
Ms. Landwehr received at least four MRI’s, all of which were “unremarkable” and
returned no objective evidence of a causal connection between her mid-thoracic strain
and her claimed symptoms. Also during this time, Ms. Landwehr was diagnosed with
carpal tunnel syndrome and fibromyalgia, both of which provide possible explanations
for her upper-extremity symptoms, and there is no evidence in the record to suggest that
either of these diseases was related to the initial workplace injury. Most importantly,
Dr. Hopfensperger’s testimony that the cause of Ms. Landwehr’s headaches was
“idiopathic” and “occult” provides absolutely no basis to conclude that her headaches
were, more probably than not, the result of her initial back injury in 1999, as opposed to
the 2008 workplace injury to her head, for which she received a worker’s compensation
settlement in Nebraska. We find substantial evidence to support the hearing examiner’s
conclusion that there was no causal connection between Ms. Landwehr’s headaches and
her 1999 workplace injury.
[¶23] Affirmed.
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