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Phillips v. Tic--The Industrial Co. of Wyoming4/8/2005
VOIGT, Justice, delivered the opinion of the Court; KITE, Justice, filed a dissenting opinion.
[ ] On June 14, 2001, Calvin D. Phillips (the appellant) injured his back in the course of his employment with The Industrial Company of Wyoming, Inc. (the appellee). The Wyoming Workers' Safety and Compensation Division (the Division) awarded the appellant temporary total disability benefits in October 2001. The appellee objected to this award and a contested case hearing ensued. The hearing examiner decided that the appellant's temporary total disability benefits should cease as of April 1, 2002, because the appellant had reached maximum medical improvement (which term may be used interchangeably with the term "ascertainable loss"). The appellant appeals from that determination. We affirm.
ISSUE
[ ] We find the dispositive issue in this appeal to be whether the record contains substantial evidence to support the hearing examiner's finding that the appellant had an ascertainable loss by April 1, 2002.
FACTS
[ ] In May 2001, the appellant, age sixty, began working for the appellee near Lysite as a "millwright helper" and maintenance worker . On June 14, 2001, the appellant injured his lower back at work while emptying twenty-five gallons of fluid from a fifty-five gallon drum. The appellant continued to work after the injury, with some restrictions, until he was "laid off" on August 24, 2001.
[ ] The appellant ultimately sought medical attention for back pain and left leg pain (extending downward to the knee). He was prescribed a conservative treatment regimen including anti-inflammatory medication, pain medication, two steroid injections, and physical therapy. According to Dr. Clayton Turner, the appellant's treating orthopedic surgeon, the appellant did not progress satisfactorily in this treatment regimen. A July 11, 2001, MRI revealed that the appellant had a "small left paracentral disc herniation arising from the L4/L5 disc, impinging upon the origin of the left L5 nerve root." On October 29, 2001, Dr. Turner performed a "surgical decompression . . . partial discectomy at L4-5" to remove a portion of the disc and relieve the pressure on the nerve.
[ ] According to the literature Dr. Turner provides his patients regarding surgery of this nature:
A lumbar discectomy is an operation to remove pressure on a nerve in your spine. . . . Removing the fragment of herniated disc material pressing on the nerve root subsequently eliminates the pressure on the nerve.
The general purpose of considering this approach is to relieve the leg pain due to an irritated nerve, usually due to a herniated disc . . .. It is critical that patients understand that any patient with the above-mentioned herniated disc . . . actually has two underlying spinal problems. The first problem is a tear in the disc . . . causing back pain. The second problem is the pressure on a nerve in your spine, which causes leg pain.
The discectomy . . . allows removal of the pressure on the nerve, which nicely relieves leg pain. However, the other problem is not treated and any back pain present before the operation is likely to continue after the operation.
Most patients complain of both back and leg pain. Discectomy is a reasonable approach if the patient's primary complaint is leg pain and the patient feels that the back pain present before surgery is tolerable. If back pain itself is substantial and not tolerable then a fusion may need to be considered. The primary reason to consider a discectomy alone (to relieve leg pain only and tolerate back pain) and avoid a fusion is that the recovery from a spinal fusion
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