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Yenne-Tully v. State ex rel Wyoming Workers' Safety and Compensation Division6/18/2002
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 in order that corrections may be made before final publication in the permanent volume.
[ ] This is an appeal from an Order Denying Benefits Nunc Pro Tunc issued by a hearing examiner from the Office of Administrative Hearings (OAH) on April 27, 2001. Brett Yenne-Tully (the appellant) contended that the herniated disc he suffered in 1997 was a second compensable injury resulting from a work-related accident in 1989. The Wyoming Workers' Safety and Compensation Division (the Division) disagreed. The hearing examiner concluded that the medical evidence indicated that the appellant's original injury was not the predominant cause of his subsequent disc herniation and he failed to prove that he was entitled to benefits under the second compensable injury rule. We affirm.
ISSUES
[ ] The appellant phrases the issue as:
Whether, when the expert opinion apportions the causation for injury as 70 percent as non-occupational causes and thirty percent to the subject injury, Appellant has failed as a matter of law to meet his burden of proof.
The Division states the issue as:
Whether the Hearing Examiner correctly determined that Appellant's herniated disc in 1997 was not a second compensable injury resulting from his 1989 work-related accident.
FACTS
[ ] On September 29, 2000, this Court reversed and remanded this case to the OAH for reconsideration under the second compensable injury rule. Yenne-Tully v. Workers' Safety and Compensation Div., Dept. of Employment, 12 P.3d 170 (Wyo. 2000). In that opinion, we cited the facts as:
Yenne-Tully suffered his first back injury when a snow fence fell on him in 1982. He received treatment and missed two or three days of work. He had no further back problems until August 1989, when he fell down a flight of stairs while working as a guard at the Wyoming State Penitentiary. CT scans the following summer revealed a disc bulge at the L3-L4 level, as well as "some significant irregularity, primarily at the L5-S1, more minor at the L4-L5 level." An MRI in December 1991 showed "early degenerative changes of the intervertebral dis at the L5-S1 level, without herniation." The Division paid for Yenne-Tully's conservative treatment for his back through December 1991. Yenne-Tully continued to lead an active life, but experienced constant back pain and had to leave work early or miss work on many occasions. In December 1997, he awoke one morning and could not move due to extreme pain. An MRI the following month revealed a herniated disc at the L4-L5 level. The disc was surgically repaired in January 1998.
Yenne-Tully sought workers' compensation benefits for his surgery, believing the herniated disc to be causally related to his 1989 fall. The Division denied benefits, stating that, " he current condition is due to a herniation at the L4-L5 level, which was not effected in the original injury ." A hearing was held at Yenne-Tully's request on September 23, 1998. Four of his co-workers testified that since the 1989 accident, Yenne-Tully complained of, and exhibited symptoms of, back pain. Exhibits included the report and deposition of a physician appointed by the Division to examine Yenne-Tully and review his medical records. Id. at 171.
[ ] In the second proceeding, the hearing examiner relied on the following stipulated facts, which we quote from the record:
1. Claimant is 38 years old
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