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Pino v. State2/17/2000
1984) (citing Jim=s Water Service v. Eayrs, 590 P.2d 1346 (Wyo. 1979)). Testimony by the medical expert to the effect that the injury Amost likely,@ Acontributed to,@ or Aprobably@ is the product of the workplace suffices under our established standard. Kaan, 689 P.2d at 1389. We have quoted above the mixed findings of fact and conclusions of law pursuant to which the hearing examiner acknowledged that it was the opinion of the doctors that the work injury in 1995 weakened the disc in Pino=s back and predisposed him to herniation. Further, the hearing examiner acknowledged that the evidence established that the injury in 1995 predisposed Pino to the possibility of disc herniation. The hearing examiner then ruled, however, that the cause of the herniated disc was the cough at home. The hearing examiner made no reference to the law surrounding a second compensable injury.
This record discloses that under either the Areasonable medical probability@ or Amore probable than not@ standard, Pino succeeded in demonstrating the causal connection by a preponderance of the evidence. Dr. V., the neurosurgeon who treated Pino, stated the causal connection in this way at the hearing:
Q. Doctor , do you have an opinion, to a reasonable degree of medical probability, not certainty, but probability, as to whether [Pino=s] present back condition arises out of his original June, 1995 injury with [his place of employment].
[The Division]: We object, and our position is in Workers= Compensation cases the standard is reasonable degree of medical certainty.
THE HEARING EXAMINER: Objection noted. Doctor, can you answer the question?
A. With standard medical certainty I expect that he started a spectrum of disease in his accident in 1995 that led to the disc herniation when he coughed in 1997.
Q. [By Pino=s Attorney] And, Doctor, do you have an opinion, to a reasonable degree of medical probability, as to whether [Pino=s] present condition is a continuation of that original June, 1995 injury ?
[The Division]: Same objection.
THE HEARING EXAMINER: Note the objection. Can you answer, Doctor?
A. As I just said, I expect that his -- the current situation, the disc herniation, is a direct continuation of the accident in 1995.
(Emphasis added.) This evidence seems to establish the causal connection between the 1995 and 1997 injuries even under the reasonable medical certainty standard which the Division asserted was applicable.
Pino=s family practitioner, Dr. S., also established the connection in his testimony in which he reported:
Q. Dr. [S.], do you have an opinion as you sit here today, to a reasonable degree of medical probability, as to whether [Pino=s] present back condition arises out of his June, 1995 injury * * *?
A. I sure think it does. Now, I think we should mention that I=ve sent [Pino] for physiotherapy, that we sent [Pino] to Dr. [V.], who=s a neurosurgeon, to Dr. [G.], who=s a neurosurgeon, and letters from them indicate that they felt that was, the disc was part of the original injury .
Q. And, Dr. [S.], can you tell us what it is in Dr. [V=s] * * * letter that causes you to state what you testified to earlier concerning the relationship?
A. Well, on the second page [Dr. V.] says, I expect his initial accident of June, 1995 weakened the disc and created a disc bulge. * * *
Q. And, Doctor [S.], do you agree with the Division=s assertion in this xmatter that it is speculative as to whether Mr. Pino suffered any injury to his L-5 S-1 disc in that June, >95 accident?
A. I think June B Yes, I thi
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