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Pino v. State2/17/2000
of time or a single episode. Dr. V. testified that only ten to fifteen percent of people about Pino=s age have asymptomatic disc bulges and that Pino had only Avery mild@ degenerative changes in his spine in July of 1995. Like Dr. S., he could not say with certainty what had caused the bulge, but his opinion was the same that the fact that Pino was asymptomatic prior to the 1995 accident and became symptomatic thereafter resulted in a conclusion in terms of reasonable medical probability that the 1995 injury had precipitated the bulge. He also pointed out that symptoms in the opposite leg of the location of the bulge were not very significant because damage had been done and the degenerative process had started.
Dr. V., during cross-examination by the Division, summarized his position in this way:
I expect that he sustained an injury with his initial accident in 1995 that started degeneration in the disc, and accounted for the disc bulge seen on the MRI scan. I expect that his disc continued to weaken as the degeneration=s usually a gradual process such that it was sufficiently weakened with a rather minor occurrence of a cough, it was enough to cause a disc herniation.
While Dr. V. also conceded that a disc bulge could come from bending, twisting, or lifting and that Pino could have been asymptomatic and had a disc bulge prior to the injury , he still pointed to the reliance in his diagnosis upon the fact that Pino had been asymptomatic until after his work-related injury.
In addressing these matters in the Order Denying Benefits, the hearing examiner included in his Conclusions of Law:
6. Pino has failed to meet his burden. The evidence does establish that in 1995 Pino suffered a work-related injury which may have resulted in a disc bulge. From 1995 through May 1997, Pino worked but had periodic flare-ups of his low back pain radiating into his legs. He sought medical treatment and these treatments were paid for by the Division. In May 1997, while at home, Pino coughed, felt a pop, and experienced immediate pain in his low back. An MRI in 1997 revealed a herniated disc. It is the opinion of the doctors that the work injury in 1995 weakened Pino=s disc and predisposed him to a disc herniation. There is no question that the cough in 1997 caused the disc herniation and caused Pino=s current back condition.
7. The medical evidence establishes that the injury in 1995 predisposed Pino to the possibility of a disc herniation. However, doing mundane things at home such as lifting, bending, twisting or coughing can cause a herniated disc. In this case, Pino was at home when he coughed. Pino has failed to establish that his herniated disc was caused by an injury received at work.
Ultimately, the hearing examiner concluded that Pino had failed to establish that the herniated disc was causally related to the work-related injury in 1995.
Pino pursued judicial review of the Order Denying Benefits in the district court. The district court then certified the case to this Court in accordance with W.R.A.P. 12.09(b).
In Pederson v. State ex rel. Wyoming Workers= Compensation Div., 939 P.2d 740, 742 (Wyo. 1997), we summarized the appropriate approach to judicial review in an instance in which an agency declares that the party charged with the burden of proof has failed to meet that burden:
A claimant for worker=s compensation benefits has the burden of proving all the essential elements of the claim by a preponderance of the evidence in the contested case hearing. Martinez v. State ex rel. Wyoming Workers= Compensation Div., 917 P.2d 619, 621 (Wyo.1996). When an agency decides that the party charged wi
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