Summary 2013 WY 135

Summary of Decision October 24, 2013

Justice Davis delivered the opinion of the Court. Affirmed.

Case Name: IN THE MATTER OF THE WORKER’S COMPENSATION CLAIM OF: MARTY D. MCINTOSH v. STATE OF WYOMING ex rel. WYOMING WORKERS’ SAFETY and COMPENSATION DIVISION

Docket Number: S-13-0035

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Campbell County the Honorable John R. Perry, Judge

Representing Appellant: Margaret M. White of Karpan & White, P.C., Cheyenne, Wyoming.
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Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Kelly Roseberry, Assistant Attorney General.

Date of Decision: October 24, 2013

Facts: Appellant Marty D. McIntosh worked as a roustabout for Kissack Oil Field Service in Gillette, Wyoming. He sustained a second to third-degree burn to his right foot while he was steam cleaning a pumping unit. His injury was determined to be compensable and he received a 5% impairment rating. He later experienced right foot pain and difficulty standing and wearing work boots, and he therefore applied for permanent total disability (PTD) benefits. His claim was referred to a panel of the Medical Commission (“the Panel” or “the Commission”) for a contested case hearing. The Commission concluded that McIntosh did not meet his burden of proving entitlement to PTD benefits under the odd lot doctrine.

Issues: 1. Did the Commission adequately explain the rationale for its decision? 2. Does substantial evidence support the Commission’s conclusion that McIntosh did not meet his burden of proving a prima facie case of odd lot treatment? 3. Did the Commission err in finding that McIntosh’s preexisting conditions caused a significant portion of his symptoms? 4. Did the Commission err when it relied on the statements of two expert evaluators who suggested vocational rehabilitation? 5. Did the Commission act arbitrarily and capriciously because the Panel members examined McIntosh’s right foot at the contested case hearing?

Holdings/Conclusion: The Medical Commission reasonably concluded that McIntosh did not demonstrate entitlement to permanent total disability benefits under the odd lot doctrine, and its conclusions were not contrary to applicable law, arbitrary or capricious. Affirmed.

Summary 2013 WY 28

Summary of Decision March 12, 2013


Justice Davis delivered the opinion for the Court. Reversed and Remanded.

Case Name: TYLER L. STALLMAN v. STATE OF WYOMING, ex rel., WYOMING WORKERS’ SAFETY AND COMPENSATION DIVISION

Docket Number: S-12-0172

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Niobrara County, Honorable Keith G. Kautz, Judge.

Representing Appellant: Brian J. Hunter of McKellar, Tiedeken & Scoggin, LLC, Cheyenne, Wyoming.

Representing Appellee: Gregory A. Phillips, Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Kelly Roseberry, Assistant Attorney General.

Date of Decision: March 12, 2013

Facts: Appellant Tyler L. Stallman worked for the Wyoming Department of Corrections at the Wyoming Women’s Center in Lusk, Wyoming. She sustained significant injuries during a vehicle rollover while driving to pick up a prisoner in Sheridan. After receiving a 22% permanent partial impairment award from the Wyoming Workers’ Safety and Compensation Division (the Division), she applied for permanent total disability (PTD) benefits. The Division denied her application, finding that she did not meet the statutory definition of permanent total disability. Ms. Stallman requested a contested case hearing, and the case was referred to a panel of the Medical Commission (the Commission or panel). Based upon the evidence presented, the Commission concluded that Ms. Stallman did not meet her burden of proving that she was entitled to PTD benefits under the odd lot doctrine. The district court affirmed, and Ms. Stallman appealed to this Court, claiming that the Commission’s final order was unsupported by substantial evidence and contrary to applicable law due to improper application of the odd lot doctrine

Issues: Was the Commission’s determination that Ms. Stallman was not entitled to permanent total disability benefits under the odd lot doctrine supported by substantial evidence and consistent with applicable law?

Holdings: The application of the odd lot doctrine is undoubtedly more difficult when a claimant lives in an isolated rural community where jobs are scarce. Nonetheless, our cases make it clear that once a claimant shows that she is de facto unemployable in her community due to her degree of physical impairment and other factors, the burden shifts to the Division to show that gainful employment was in fact available. The overwhelming weight of the evidence indicates that Ms. Stallman was a prima facie candidate for odd lot treatment, and that the Division failed to establish that light work she could perform was available within a reasonable distance from Lusk. There was an error of law in the application of the odd lot doctrine, and substantial evidence does not support the Commission’s conclusions. The Court accordingly reversed and remanded, directing the district court to remand to the Commission for further proceedings consistent with this opinion.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 164

Summary of Decision December 21, 2012

Chief Justice Kite delivered the opinion for the Court. Reversed and Remanded. Justice Hill filed a specially concurring opinion.

Case Name: IN THE MATTER OF THE WORKER’S COMPENSATION CLAIM OF: RANDY W. HOFFMAN, v. STATE OF WYOMING, ex rel., WYOMING WORKERS’ SAFETY AND COMPENSATION DIVISION

Docket Numbers: S-12-0092

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Natrona County, Honorable David B. Park, Judge.

Representing Appellant: Peter J. Timbers of Schwartz, Bon, Walker, Studer, LLC, Casper, Wyoming.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Kelly Roseberry, Assistant Attorney General.

Date of Decision: December 21, 2012

Facts: Randy W. Hoffman injured his back while working in 1994. As a result, he had three back surgeries between 1995 and 2004. The Wyoming Worker’s Compensation Division (the Division) paid him benefits for the injury and associated treatment. In 2009, he fell on the ice at his home and underwent a fourth back surgery. Claiming that the surgery was connected to his original work injury, Mr. Hoffman sought benefits. The Division denied his claim. After a hearing, the Medical Commission (the Commission) upheld the denial, concluding that Mr. Hoffman had failed to prove the 2009 surgery was causally connected to his 1994 work injury. Mr. Hoffman filed a petition for review in district court, which affirmed the denial. In his appeal to this Court, Mr. Hoffman asserted the Commission’s decision was arbitrary, capricious and not in accordance with the law because the evidence overwhelmingly showed the fourth surgery was causally connected to his work injury.

Issues: Mr. Hoffman presents the following issue for this Court’s determination:

1. Whether the order denying benefits for Mr. Hoffman’s Second Fusion was arbitrary, capricious, and not in accordance with the law.

The Division asserts substantial evidence supported the Commission’s decision.

Holdings: The Court concluded that when the proper legal standard was applied, the Commission’s determination was contrary to the overwhelming weight of the evidence. The Court, therefore, reversed and remanded for proceedings in accordance with this decision.

Justice Hill specially concurred. To read the full opinion and concurrence, see the URL link above.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 144

Summary of Decision November 14, 2012

Justice Burke delivered the opinion for the Court. Affirmed.

Case Name: IN THE MATTER OF THE WORKER’S COMPENSATION CLAIM OF: MICHAEL WILLEY v. STATE OF WYOMING, ex rel., WYOMING WORKERS’ SAFETY AND COMPENSATION DIVISION

Docket Number: S-12-0081

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Campbell County, Honorable John R. Perry, Judge.

Representing Appellant: Donna D. Domonkos, Domonkos Law Office, Cheyenne, Wyoming.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Claudia Lair, Legal Intern.

Date of Decision: November 14, 2012

Facts: The Wyoming Workers’ Safety and Compensation Division issued a final determination awarding Appellant, Michael Willey, a 2% permanent partial impairment benefit after Mr. Willey was injured in a work-related accident. Mr. Willey challenged the district court’s order affirming the Medical Commission’s decision to uphold the Division’s final determination.

Issues: Appellant presents the following issue for the Court’s consideration:

Whether the Medical Commission’s decision is supported by substantial evidence.
Holdings: The evidence in the record supports the Commission’s finding that Mr. Willey tended to exaggerate the extent of his symptoms. Ultimately, however, the Commission’s findings with respect to Mr. Willey’s credibility had little, if any, bearing on its decision to uphold the Division’s award of a 2% impairment benefit. As set forth above, that decision was based on Mr. Willey’s medical records, the assessments of Mr. Willey’s impairment by Dr. Shih and Dr. Uejo, and the criteria set forth in the AMA Guides. Accordingly, even if the Court found that the Medical Commission’s credibility findings were not supported by the record, substantial evidence would remain to support the Commission’s decision. Affirmed.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2010 WY 76

Summary of Decision issued June 9, 2010

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

Case Name: Taylor v. State, ex. Rel., Wyo. Workers’ Safety & Comp. Div.

Citation: 2010 WY 76

Docket Number: S-09-0170

Appeal from the District Court of Sweetwater County, the Honorable Jere A. Ryckman, Judge.

Representing Taylor: 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: Taylor appealed the district court’s order affirming the Medical Commission’s (Commission) determination that he failed to meet his burden of proving his 2007 chiropractic treatment was related to a 1991 work related injury.

Taylor was injured in 1991 when he was emptying water buckets while working as a housekeeper for Hillhaven Nursing Home in Rock Springs. The Division concluded the injury was compensable and allowed payment of his medical claims including chiropractic care. The Division continued to pay for Taylor’s chiropractic treatments until 1998 when it denied some claims on the ground that the treatment was not related to his 1991 injury. The OAH held a contested case hearing and concluded that it was related and until further medical evidence would warrant a change, he was entitled to receive medical benefits for continuing chiropractic care. Taylor was involved in a number of accidents in 1999 and 2002. Taylor continued to receive treatment paid by the Division until 2007 when it denied further payments. The Commission ruled that Dr. Davidson was not a credible witness because he had a poor working knowledge of the mechanism of the 1991 injury and the prior care and treatment Taylor had received in the interim years. The Commission also considered the report of an independent medical evaluation which concluded the 2007 chiropractic treatment was not related to the 1991 injury.
Taylor asserted the Commission committed an error of law when it considered any evidence that was or could have been presented at the 1998 contested case hearing. He claimed that collateral estoppel barred consideration of such evidence. The issue determined in 1998 was whether Taylor’s chiropractic treatment was related to the 1991 work injury. Since the Commission did not re-analyze the propriety of the 1998 contested case ruling, the issues were not identical and collateral estoppel did not bar the Commission from considering any of the evidence presented at the hearing. The records showed that the intervening accidents affected the same areas of the body as were being treated by Dr. Davidson.

Conclusion: Dr. Davidson was the only medical provider who provided evidence relating Taylor’s 2007 chiropractic treatment to his original injury. The Commission rejected the doctor’s opinion because he had an insufficient understanding of the original injury and the intervening events. Moreover, in direct contradiction of Davidson’s testimony that he only treated the areas of the original injury, Taylor testified that Davidson actually treated his whole spine, both shoulders and hips. Taylor does not contest any of the Commission’s findings of fact about the intervening injuries and Davidson’s credibility. Those aspects of the Commission’s decision, without reference to Taylor’s preexisting condition, are sufficient to uphold its decision.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/294ycog .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance using the Universal Citation format, please contact the Wyoming State Law Library.]

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.

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary 2008 WY 100

Summary of Decision issued August 27, 2008

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

Case Name: Decker v. State, ex rel., Wyoming Medical Commission

Citation: 2008 WY 100

Docket Number: S-07-0051

Appeal from the District Court of Campbell County, the Honorable Michael N. Deegan, Judge.

Representing Appellant: Bill G. Hibbler of Bill G. Hibbler, PC, Cheyenne, Wyoming.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; Kristi M. Radosevich, Assistant Attorney General.

Facts/Discussion: This is the second appeal in Decker’s effort to be awarded worker’s compensation benefits. Decker made a claim for worker’s compensation benefits for an allegedly work related aggravation of symptoms associated with thoracic outlet syndrome (TOS). The Division denied the claim. The case was referred to the Medical Commission for hearing. After a hearing before a medical hearing panel, the Medical Commission upheld the denial.
Violation of due process: Decker questioned the procedure followed by the Medical Commission hearing panel on remand. Decker asserted that the hearing panel’s order was void because it did not comply with Wyoming’s Public Meetings Act (PMA). He argued that the Commission violated his rights when the hearing panel did not deliberate its decision in a public meeting. The legislature created the Commission and empowered it to assemble medical hearing panels solely as necessary to hear medically contested worker’s compensation cases. The Commission attempts to individualize panels by appointing commission members with expertise relevant to the circumstances of the case being heard. As a consequence, multiple medical hearing panels may exist at any given time or none may exist because there are no outstanding medically contested cases to be heard. A medical hearing panel is a transitory body, existing and operating exclusively under the auspices of the Medical Commission and does not fall within the definition of “agency” as used in the PMA.
Decker suggested that the Commission violated his due process rights on remand by not allowing him to present additional evidence. The Court’s mandate did not require the case be reopened to allow additional evidence. It only required the Commission to enter a new order more thoroughly explaining the reason for its denial of benefits based on the evidence adduced at the hearing so the Court could review its decision.
Substantial evidence: Decker argued that the decision of the Commission was not supported by substantial evidence. The Commission’s decision was essentially that the initial diagnosis of wrist tendonitis was correct and the condition completely resolved within a few months. The Court reviewed the record and stated that the evidence when viewed in the context of the record as a whole was not substantial. The Court stated that the evidence supporting a finding that Decker’s original complaints were symptoms of TOS was overwhelming. The symptoms fell well within the rubric of TOS.
The remaining question was whether Decker adequately proved his TOS symptoms were caused by his work effort. The Commission concluded that Decker’s work effort was not a materially aggravating factor for two primary reasons: the symptoms did not begin until after he had been working for over seven years and the symptoms did not improve after he quit working. The Court noted that the most obvious change was Decker’s change in employment which required him to work longer hours without an assistant. The second issue brought into question the possible existence of other aggravating factors. There was testimony that the progression of symptoms of TOS is unpredictable. The Court found that the heavy reliance of the Commission on what they deem to be an increase in symptoms for the purpose of determining causation to be lacking in evidentiary support. Several doctors opined that the repetitive overhead exertion was an aggravating factor in his complaints. The Commission decided to discount the opinions on causation because they did not have all the relevant, accurate patient history. The court disagreed as regarding Dr. Schabauer who had received and reviewed the complete medical history before continuing to opine that Decker suffered from TOS which was aggravated by his overhead work activities.

Holding: The Medical Commission followed the proper procedures on remand from Decker I. The Public Meetings Act did not require the Medical Commission to allow Decker to attend new deliberations as argued by Decker. There was also no requirement for the Medical Commission to reopen the hearing for the taking of additional evidence. The Medical Commission was well within its discretion to simply enter a new, more thorough order explaining its position and reasoning.
The decision of the Medical Commission denying benefits to Decker for a work-related aggravation of symptoms related to TOS is not supported by substantial evidence when viewed on the record as a whole. The order denying benefits is hereby reversed.

Reversed and remanded.

J. Golden delivered the decision.

J. Kite dissenting, with J. Voigt joining: The Justices would have held that the Commission panels fit the statutory definition of “agency” under § 16-4-402(a)(ii). Deliberations of a panel constitute a “meeting” under § 16-4-402(a)(iii) where “action” is taken. Therefore, the deliberations of the Commission’s hearing panels must be held in conformity with the requirements of the PMA.

Link: http://tinyurl.com/64mh5o .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2008 WY 99

Summary of Decision issued August 19, 2008

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

Case Name: Nagle v. State, ex rel. Wyoming Workers' Safety and Compensation Division

Citation: 2008 WY 99

Docket Number: S-07-0222

Appeal from the District Court of Campbell County, the Honorable Michael N. Deegan, Judge.

Representing Appellant: Sean W. Scoggin of Tiedeken & Scoggin, PC, Cheyenne, Wyoming.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; Kristi M. Radosevich, Senior Assistant Attorney General.

Facts/Discussion: In 1987, Nagle suffered an open fracture, dislocation and crush injury to the first, second and fourth metatarsals of his left foot. Since then, he has continued to experience worsening medical complications, which he claims can be traced to that injury.
Permanent Total Disability under the Odd Lot Doctrine: The Court stated it would apply their recently revised standard of review. The Court also noted its opinion in Cardin v. Morrison-Knudsen where they adopted a definition of the “odd-lot doctrine” as providing permanent total disability to those workers who, while not altogether incapacitated for work, are so handicapped that they will not be employed regularly in any well known branch of the labor market. Nagle’s two claims, one for permanent disability and a second for benefits associated with his second compensable injury were referred to the Medical Commission. The Commission did not look at the case under the strictures of the odd lot doctrine but rather took a narrow view of what constitutes “permanent total disability” and disregarded Nagle’s evidence and the burden of proof that largely fell to the Division and the employer. The record irrefutably established that the degree of Nagle’s obvious impairment, coupled with his mental capacity, education, training, and age, clearly placed him prima facie in the odd lot category. The burden shifted to the Division to present evidence that some special work of a light or sedentary nature was actually available to him. The Court concluded that when all the evidence was considered in context, the only sustainable conclusion was that Nagle was permanently disabled from doing work at any gainful occupation for which he was reasonably suited by experience and training.
Nagle’s Fall Injuries and the Second Compensable Injury Rule: The Court stated that the standard of review to be applied here was well summarized in Alvarez v. State. With respect to the injuries Nagle suffered in his stumble and fall, Nagle’s report was plausible in every respect. There was no basis for disbelieving his testimony. There was likewise no factual circumstance contained in the record that would disallow application of the second compensable injury rule.

Holding: The order of the district court affirming the Medical Commission was reversed and remanded to the district court with directions that it further remand the case to the Medical Commission with directions that it award permanent total disability benefits to Nagle. In addition, it shall direct the Medical Commission to order that Nagle be paid benefits for the injuries he suffered to his wrist and hip when he fell because of his gait/walking instability associated with his original injuries.

Reversed and remanded.

J. Hill delivered the decision.

Link: http://tinyurl.com/6hvzxe .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2007 WY 126

Summary of Decision issued August 6, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Alvarez v. State ex rel. Wyoming Workers’ Safety and Compensation Division

Citation: 2007 WY 126

Docket Number: 06-139

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

Representing Appellant (Respondent): David M. Gosar, Jackson, Wyoming.

Representing Appellee (Petitioner): Patrick J. Crank, Attorney General; John W. Renneisen, Deputy Attorney General; and Steven R. Czoschke, Senior Assistant Attorney General; Kristi M. Radosevich, Assistant Attorney General.

Issues: Whether the Court should overrule Bruhn v. State and extend benefits to workers who sustain additional injuries while traveling to or from receiving medical care for work-related injuries. Or whether, in the alternative, the Court should clarify or modify Bruhn to extend coverage to workers who re-injure their original workplace injuries while traveling to or from obtaining medical care for these injuries.

Facts/Discussion: After injuring her left rotator cuff at work, Alvarez filed for and received worker’s compensation benefits. Two months later, she fell and re-injured her rotator cuff. The Division denied her claim for benefits on the ground it was caused by the fall and was not work-related. Alvarez requested a hearing and the Division referred the matter to the Medical Commission (Commission.) After the hearing, the Commission awarded Alvarez benefits. The Division filed a petition for review in the district court which reversed the Commission’s decision.
The Court reviews an appeal from a district court as if it came directly from the agency.
The Division and the Commission both emphasized Bruhn, so Alvarez framed the issue as being dependent on the meaning of the Court’s holding in that case. The Court concluded that Bruhn did not govern the outcome of the case, rather the second compensable rule applied. The Court also stated the Commission properly decided the case because it was a medically contested case in which the primary issue required the application of medical judgment to complex medical facts.
The second compensable injury rule applies when an initial compensable injury ripens into a condition requiring additional medical attention. The Court reviewed cases where they have applied the rule including: Casper Oil Co. v. Evenson; Pino ex rel. Wyo. Workers’ Safety & Comp. Div.; Carabajal v. State ex rel. Wyo. Workers’ Safety and Comp. Div.; Yenne-Tully v. State ex rel. Wyo. Workers’ Safety & Comp. Div.; and Walsh v. Holly Sugar Corp. The Court reviewed the record and agreed with the Commission’s conclusion that Alvarez had met her burden of proving the re-tear and resulting surgery were compensable. There was no dispute that the initial rotator cuff tear was work-related and required surgical intervention. While she was recovering from that surgery she fell. Her doctor testified that in his opinion the tear was related to the initial work related tear. The Court stated there is nothing in the second compensable injury rule that attributes any significance to where the worker was at the time the injury manifested itself, nor is any triggering event required. What matters is whether the initial compensable injury ripened into a condition requiring additional medical intervention and whether the subsequent injury was causally related to the initial compensable injury.

Holding: The Court held that Alvarez met her burden of proving the re-tear was a compensable consequence of her initial work injury and the Commission’s decision was supported by the second compensable injury rule. The Court was cognizant that Alvarez did not expressly argue the second compensable injury rule in support of her claim but relied on the Bruhn premises rule. The Commission was alerted to the theory as evidenced by its discussion of the rule in its conclusions of law.

Reversed and remanded.

J. Kite delivered the decision.

J. Golden, dissenting, joined by C.J. Voigt: The Justices would have held that the Commission lacked subject matter jurisdiction to decide Alvarez’s case because it was not a medically contested case as required by Wyo. Stat. Ann. § 27-14-616(b)(iv). Review of the record confirmed that the case required no medical expertise for its resolution. The primary issue involved the legal issue of coverage. The Commission should have dismissed the case and returned it to the Division.

Link: http://tinyurl.com/37bcv6 .

Summary 2007 WY 108

Summary of Decision issued July 12, 2007

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

Case Name: McIntosh v. State, ex rel, Wyoming Medical Commission and Wyoming Workers’ Safety and Compensation Division

Citation: 2007 WY 108

Docket Number: 06-113

Appeal from the District Court of Laramie County, the Honorable Nicholas G. Kalokathis, Judge

Representing Appellant (Petitioner): Bill G. Hibbler of Bill G. Hibbler, PC, Cheyenne, Wyoming.

Representing Appellee (Respondents): Patrick J. Crank, Attorney General; John W. Renneisen, Deputy Attorney General; Steve Czoschke, Senior Assistant Attorney General; Keith J. Dodson, Legal Intern. Argument by Mr. Dodson.

Issues: Whether the Medical Commission order is supported by substantial evidence. Whether the Medical Commission order is contrary to law because Worker’s Compensation Division failed to comply with Wyo. Stat. § 27-17-605(a). Whether the Medical Commission order is contrary to law because it determined a non-medically contested issue concerning the application of Wyo. Stat. § 27-14-605(a). Whether the Medical Commission panel abused its discretion in failing to consider the testimony of the claims analyst.

Facts/Discussion: Appellant filed a claim for benefits with the Division alleging he had suffered a back injury at work. The Division determined his injury to be an aggravation of a pre-existing condition and awarded him benefits. Several months later, the Division determined that Appellant’s condition was pre-existing and declined further benefit payments. Appellant requested a hearing and the Division referred the case to the OAH. The OAH transferred the case to the Medical Commission. After a hearing the Commission issued an order upholding the denial of benefits. Appellant appealed to the district court which also upheld the appeal.
Standard of Review: In an appeal from a district court decision on a petition for review of administrative action, the Court reviews the case as if it came directly from the agency.
Sufficiency of the Evidence: The Court reviewed the evidence in the record and concluded the Commission’s findings of fact and conclusions of law were supported by substantial evidence presented at the hearing. The Court reached a similar conclusion with respect to Appellant’s claim that the Commission improperly disregarded Dr. Beer’s testimony. The Court weighed Dr. Beer’s testimony against Appellant’s inconsistent reports concerning his back problems. They also considered a written report from John Bender, O.D. who reviewed the file. It was apparent the Commission fully considered Dr. Beer’s testimony and reasonably concluded his opinions were based on incomplete and incorrect information.
Medical Commission Authority to Decide this Case (a) the Commission’s authority to decide this case after the Division initially awarded benefits and then denied benefits: The Division’s uncontested award of benefits to Appellant in November did not preclude the Division from challenging the payment of future benefits in April. The Division did not contest the compensability of Appellant’s original claim or seek to retract payments already made. The Division challenged his right to payment of future benefits. Therefore, § 27-14-605 was not applicable and Appellant was required to prove that he was entitled to receive benefits for his unpaid claims despite the previous award. The Commission had authority to decide the contested case and properly allocated the burden of proof.
b) the Commission’s authority to decide this medically contested case: Looking at the plain and ordinary meaning of the language, it was clear the Division was required to refer medically contested cases to the Commission for hearing and the Division’s decision in that regard was not subject to challenge at the administrative level. Once the Division has referred a case, the Commission has jurisdiction to decide all issues related to those identified in the hearing request. In the instant case, the Division referred the case to the OAH which then transferred the case to the Commission. The record does not reflect whether the OAH obtained the parties’ agreement before transferring the case to the Commission. Appellant’s case was transferred as a “medically contested case.” The Court reviewed the language of the administrative rules and concluded that the definition allowed for referral to the Commission cases that primarily involved medically contested issues including but not limited to those identified in subsections (A) through (D) of the rule. Conflicting medical testimony requiring the application of medical judgment to complex medical facts was presented at the hearing on the primary medical issue of whether Appellant’s back problems resulted from normal degeneration or became symptomatic as a result of work injury. The fact that the Commission may also be asked to consider non-medical issues does not deprive it of authority to decide the case. So long as the primary issue for determination was the medically contested issue of whether Appellant’s back problems were caused by a work-related injury, the Commission had authority to decide the case.
Failure to Consider Testimony: The Court found no error in the Commission’s decision not to consider testimony. The Commission concluded that when a case is referred from a contested hearing, it becomes its responsibility to independently determine the issues presented. The primary issue was whether his injury was causally related to his work. The Commission allowed the testimony and then determined the testimony was not relevant to its determination of the issue.

Holding: The Commission’s order was supported by substantial evidence and was not arbitrary and capricious. The Commission had authority to decide this medically contested case. Section 27-14-605 did not apply to these proceedings. The Commission did not err in declining to consider the Division’s reasons for discontinuing benefits and making its own independent decision concerning causation based upon Appellant’s testimony and the medical evidence presented at the hearing.

Affirmed.

J. Kite delivered the decision.

J. Golden, dissenting which C.J. Voigt joined: The Justices dissented because they did not believe the Commission had jurisdiction to decide the case. The case contained no medically contested issues and was not properly referred to the Commission.
Prior to the hearing, Appellant questioned the burden of proof which is a question of law. The Commission does not possess the expertise to answer questions of law. The Justices suggested the legal question was primary and therefore placed jurisdiction with the OAH and not the Commission.
The Justices were also concerned about the process by which the case was referred to the Commission. Once referred, the Commission must evaluate on a continuing basis to ensure the issue involved is primarily a medically contested issue. If it appears it is not, the Commission must return the case to the Division. Although administrative review is not available to the parties to challenge the Division’s referral, that does not remove the statutory restraints on the Commission’s subject matter jurisdiction.
The record contained no indication that prior to the referral the parties were contacted or consented to the same. The Justices believed this rendered the referral void. They disagreed that silence on the record equaled consent. The referral order should state that the OAH has received consent or it exceeds its statutory authority in referring the case. A case should only go before the Commission when it is a medically contested case. Here, the nature of the injury was not determinative of whether or not the injury was work-related. The medical expertise of the panel was not required and should never have been invoked.

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