Summary 2010 WY 66

Summary of Decision issued May 25, 2010

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Moss v. State, ex rel., Wyo. Workers’ Safety & Comp. Div.

Citation: 2010 WY 66

Docket Number: S-09-0124

Appeal from the District Court of Sweetwater County, the Honorable Nena R. James, Judge.

Representing Moss: Donna D. Domonkos, Cheyenne, Wyoming.

Representing State: Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General.

Facts/Discussion: After doctors certified him as having reached maximum medical improvement from a work related back injury, Moss applied for permanent total disability (PTD) benefits. The Division denied his claim and the Medical Commission (Commission) held a contested case hearing. The Commission concluded Moss did not meet his burden of proving that he was entitled to PTD benefits.

Moss suffered a lumbar injury in 2003 when the auger he was operating struck a rock and he was thrown to the ground. Moss contends the Commission incorrectly ruled that he failed to prove his entitlement to PTD benefits because it did not apply the standards for determining his right to benefits under the “odd lot” doctrine. Permanent total disability is the loss of use of the body which permanently incapacitates the employee from performing work at any gainful occupation for which he is reasonably suited. The Court noted in Nagle that the odd lot doctrine permits a finding of PTD in the case of workers who are so handicapped that they will not be employed regularly in any well known branch of the labor market. To be entitled to an award of benefits under the odd lot doctrine, an employee must prove he is no longer capable of performing the job he had at the time of his injury and the degree of his physical impairment coupled with factors such as mental capacity, education, training and age make him ineligible for PTD benefits even though he is not totally incapacitated. The employee must show he made reasonable efforts to find work in his community and that he was so completely disabled that any effort to find employment would have been futile.
The Court reviewed the records including the video recording of Moss, the medical records and reports and Moss’ testimony. The Court was unable to discern a rational basis for the Medical Commission’s disagreement with the Social Security determination and rejection of Moss’s testimony and the opinions of Dr. Neal and Zondag. The record indicated that the Commission disregarded relevant evidence, made incorrect assumptions and viewed the evidence in a light most likely to result in a denial of benefits.
The Court then considered whether the Division came forward with sufficient evidence to refute Moss’s evidence and to prove work within his limitations was available. In addition to the opinion of three doctors that Moss was capable of gainful employment with restrictions, the Division presented evidence that light duty work was available to Moss. Relying on a vocational evaluation performed at the request of Moss’s attorney, the Division pointed out that the evaluator concluded Moss could find work in his geographic area in jobs such as cashier, rental clerk, telemarketer, desk clerk and customer representative.

Conclusion: The Court concluded substantial evidence supported the Commission’s ruling that Moss was not entitled to benefits under the odd lot doctrine. Although the Court was unable to discern a rational basis for the Commission’s decision to reject much of Moss’s evidence, the impairment ratings the Division presented called into question the opinions of Dr. Neal and Dr. Zondag. The Division also presented evidence that light work was available in Moss’s geographic area. That the Court might have reached a different result was not grounds for reversal. The Court could not conclude that the Commission’s ruling was against the overwhelming weight of the evidence.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/28r8zct .

J. Hill, dissenting: The Justice dissented noting principles and circumstances he argued must be viewed as determinative in the instant case. J. Hill would have rejected the Commission’s determination that there was work available within Moss’s physical limitations including his broken back, constant pain, anxiety and depression, ancillary to the pain and his inability to work and earn a living. The Court noted in Nagle and Tarraferro that medical science has very few reliable tools which can accurately assess the presence or severity of pain. The Justice also noted that the Court has held that the testimony of an injured worker alone is sufficient to prove injury. He also stated that treating physicians should be credited with having the most comprehensive knowledge of the injured worker’s condition and that the Commission should have acknowledged that SSA disability determinations are made after an onerous testing process and cannot be cast aside as irrelevant. The Justice noted several other examples where he felt the Commission played fast and loose with the facts. J. Hill would have applied the last of the standards of review articulated in Dale. The decision of the Commission was arbitrary and capricious and should not have been affirmed.

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