W.R.A.P. 12.09(b) Certification from the District Court of Laramie County The Honorable Edward L. Grant, Judge.
The opinion of the court was delivered by: Golden, Justice.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, BURKE, JJ.
GOLDEN, J., delivers the opinion of the Court; VOIGT, C.J., files a dissenting opinion.
[¶1] Appellant, Sharon Williams, sought worker‟s compensation death benefits as the surviving spouse of Howard W. Williams, who died from injuries suffered in a work-related car accident. Appellee, the Wyoming Workers‟ Safety and Compensation Division (Division), denied Mrs. Williams‟ claim for death benefits on the basis that Mr. Williams refused reasonable and necessary medical treatment. On appeal, the Office of Administrative Hearings hearing examiner also denied benefits. The hearing examiner determined that, pursuant to Wyo. Stat. Ann. § 27-14-407, Mr. Williams had forfeited all right to benefits under the Wyoming Worker‟s Compensation Act when he refused to allow the use of blood products to treat his injuries. Mrs. Williams petitioned for review by the district court, and the matter was certified to this Court. On the specific facts and evidence in this case, we reverse and remand with directions that the applicable death benefits be awarded to Mrs. Williams.
[¶2] Mrs. Williams raises the following issues:
I. Whether the State may constitutionally refuse Worker‟s Compensation benefits where an injured worker, on the basis of sincere religious grounds, declines to accept human blood products from another person, without thereby violating his constitutionally-protected religious liberties?
II. Whether the forfeiture-of-benefits statute even applies to a situation that does not involve knowing and persistent misconduct which affirmatively harms the medical situation, but rather where the worker merely makes an election among various available methods of medical care?
III. Whether the Division, which without dispute has the burden of proof in urging forfeiture, may prevail where it produces no evidence to satisfy any of the several distinct conditions of the forfeiture statute?
IV. Whether the forfeiture statute can be extended to include the new scope the Division seeks to adopt?
In response, the Division presents these issues:
I. Is the hearing examiner‟s finding regarding Employee‟s forfeiture of benefits under Wyo. Stat. Ann. § 27-14-407 supported by substantial evidence?
II. Are the constitutional issues raised in the Brief of Appellant properly before this Court?
[¶3] On February 9, 2006, Mr. Williams, a maintenance technician for Capital City Maintenance, Inc. (CCM), was riding in an automobile on the interstate to a job site in Laramie, Wyoming. The driver of the vehicle, Mrs. Williams, lost control, the vehicle rolled several times, and Mr. Williams was severely injured.*fn1 He was subsequently transported by ambulance to United Medical Center (UMC) in Cheyenne. Mrs. Williams was also injured in the accident and transported by ambulance to UMC. The record indicates that her injuries were less severe than Mr. Williams and she was alert and able to converse with medical personnel.
[¶4] According to Dr. M. Whitney Parnell, the treating physician, Mr. Williams was "pretty banged up." Mr. Williams showed signs of external trauma to his left side, he had tenderness over that area and his lower ribs, and he was hypotensive, meaning his blood pressure was "fairly low." Dr. Parnell suspected that Mr. Williams had a splenic injury and was bleeding internally. In her Consultation Report, Dr. Parnell described her initial impression:
This is a 67-year-old gentleman who was involved in a severe motor vehicle accident in which he was the passenger who was thrown from the front seat of the vehicle to the back. The patient has obviously suffered a significant splenic injury with splenic rupture and free intraabdominal bleeding.
[¶5] Mr. and Mrs. Williams indicated to Dr. Parnell that they were Jehovah‟s Witnesses and, as such, they did not want any blood products used in the treatment of Mr. Williams. Dr. Parnell inquired if other substances with similar properties, such as albumin, were allowed. Mrs. Williams was unsure, and asked Dr. Parnell not to administer any albumin until her son arrived at the hospital. Dr. Parnell also inquired about the use of Cell Saver, which is an individual‟s own blood cleansed.*fn2 Mr. Williams was uncertain if the use of Cell Saver was appropriate and asked Dr. Parnell to wait until his son arrived.
[¶6] While awaiting the son‟s arrival, Dr. Parnell gave Mr. Williams non-blood fluid resuscitation products and obtained a chest x-ray and computed tomography (CT) scans. Dr. Parnell‟s Consultation Report explained her treatment during this period of time and what the chest x-ray and CT scans revealed:
Initially a STAT portable chest x-ray had been obtained and I thought it was without evidence of pneumothorax. It did have a slight haze on the left side of the chest. The film did appear slightly under-penetrated. There was no obvious mediastinal widening and the diaphragm appeared to be in normal position.
At this point I continued saline resuscitation and elected to give him 500 cc of Hespan resuscitation also. The patient continued to be hypotensive, blood pressures anywhere from 79-100. At this point when the blood pressure got up to 100, I asked that we get infusion of dopamine and bring this to the CT scan room for resuscitative measures if needed. Computed tomography scan examinations revealed the following: . . .
1. Computed tomography scan of the head was without evidence of acute trauma.
2. Computed tomography scan of the cervical spine was without evidence of acute trauma.
3. Computed tomography scan of the chest was without evidence of acute trauma.
4. Computed tomography scan of the abdomen and pelvis showed evidence of a diffuse hemoperitoneum with obvious splenic rupture and free fluid throughout the abdomen. There was a questionable haziness around the bladder suggestive of possible rupture. The only other injury found was a slight fracture of the vertebral body to T4.
[¶7] Mr. Williams‟ son subsequently arrived at the hospital and consented to the Cell Saver procedure. Based on the information garnered from the CT scans, Dr. Parnell decided to perform an emergency splenectomy. Dr. Parnell informed Mr. Williams‟ son that "the decision not to allow any blood products, including whole blood, packed red blood cells, plasma, and/or platelets, cryoprecipitate, etc, may indeed make it very difficult to resuscitate and manage [Mr. Williams]." The son indicated he understood the situation, and the surgery was performed without the use of any foreign blood products.
[¶8] According to Dr. Parnell‟s Operative Report, Mr. Williams had "massive intraabdominal" bleeding, his spleen was in two pieces, and he had lost five liters of blood. Dr. Parnell removed Mr. Williams‟ spleen and retransfused two liters of Mr. Williams‟ blood into him using the Cell Saver. The Operative Report indicates that Dr. Parnell also evaluated the rest of Mr. Williams‟ abdominal cavity and pelvic area during the surgery and found no signs of trauma.
[¶9] After the surgery, Mr. Williams was taken to the intensive care unit, where his condition deteriorated. Despite aggressive fluid resuscitation efforts, Mr. Williams remained hypotensive and his blood pressure continued to drop. According to the Consultation Report of Dr. Laura Brausch, who provided a consultation at the request of Dr. Parnell, Mr. Williams‟ blood pressure was "65/34" and was dropping "into the 30s and 40s." Dr. Brausch described her impression as follows:
This is a 67-year-old male status post motor vehicle accident who sustained a severe splenic injury and very significant blood loss. This severe hemorrhage, we are not able to replace with blood products and replacing at this point with saline, albumin and even hetastarch is not helping this patient. We have him on high doses of both Norepinephrine and Dopamine in addition to rapid infusion of IV fluids without benefit. He has received calcium times two and bicarbonate times three. We are all afraid that the patient is dying and we have used the resources we are allowed to use to their fullest extent.
Mr. Williams died at 6:36 p.m., after his heart stopped from lack of blood pressure. According to Dr. Parnell, Mr. Williams essentially bled to death.
[¶10] Mrs. Williams filed a claim for death benefits and funeral expenses. On March 24, 2006, the Division denied her claim for the reason that the "medical documentation submitted to the Division indicates the cause of death was due to the refusal of reasonable and necessary medical care." Mrs. Williams objected to the denial and requested a hearing. The Division thereafter filed a petition for forfeiture of benefits pursuant to Wyo. Stat. Ann. § 27-14-407 (LexisNexis 2007), which provides:
If an injured employee knowingly engages or persists in an unsanitary or injurious practice which tends to imperil or retard his recovery, or if he refuses to submit to medical or surgical treatment reasonably essential to promote his recovery, he forfeits all right to compensation under this act. Forfeiture shall be determined by the hearing examiner upon application by the division or employer.
[¶11] At the contested case hearing held on November 20, 2006, the hearing examiner was presented with numerous medical records, the affidavit and testimony of Howard Williams, CCM‟s president, and the deposition testimony of Dr. Parnell. Of relevant importance to the hearing examiner‟s decision is the following testimony provided by Dr. Parnell:
Q: Can you give us your best sense, knowing everything that you know, at the point that you first evaluated [Mr. Williams] and with the benefit of hindsight, how good or not good were his chances of survival?
A: In general, I think he had potentially survivable injuries, but not guaranteed.
Q: Okay. And one of the striking features of this patient‟s case is the refusal of human blood products. Can you give us your sense, Doctor, of the difference, if any, that his decision not to accept human blood products -- did that change his outcome?
A: I don‟t -- I can‟t say that it changed his outcome. I can say it changed my management.
Q: What do you mean by that?
A: I would have taken him to the operating room sooner because I wouldn‟t have had to wait for the son. And actually, Mr. Williams was requesting that I wait for the son before going; and also, I felt his best chance of survival was to use the Cell Saver. Had he declined use of the Cell Saver, I think he would have died in the operating room.
And that was my sense prior to starting it is that if we had no ability to give him back even his own blood, then he probably would have expired in the operating room.
The management was just -- it was like a fork in the road; and I went down a different road because of his religious beliefs, which is absolutely within his power to do so. Whether or not he would have survived with or without blood products, I don‟t know that I can say.
I can say that it changed my management but that he had significant injuries. He had a -- he had an obvious significant injury to his spleen, his back. I presume if he had time, we probably could have found ribs and pulmonary issues. And these are enough in a 67-year-old gentleman to have them -- they could be fatal. This constellation of problems can be fatal, despite our best efforts.
Q: And is there -- is there any way that you or another good surgeon can say with any level of certainty that had this patient accepted human blood that he would ...