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Moss v. State ex rel Wyoming Workers‟ Safety and Compensation Division

May 25, 2010

IN THE MATTER OF THE WORKERS‟ COMPENSATION CLAIM OF: JAMES MOSS, APPELLANT (PETITIONER),
v.
STATE OF WYOMING, EX REL., WYOMING WORKERS‟ SAFETY AND COMPENSATION DIVISION, APPELLEE (RESPONDENT).



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

The opinion of the court was delivered by: Kite, Justice.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

KITE, J., delivers the opinion of the Court; HILL, J., files a dissenting opinion.

[¶1] After doctors certified him as having reached maximum medical improvement from a work related back injury, James Moss applied to the Wyoming Workers‟ Safety and Compensation Division (Division) for permanent total disability (PTD) benefits. The Division denied his claim and the Medical Commission held a contested case hearing. Based upon the evidence presented, the Medical Commission concluded Mr. Moss did not meet his burden of proving that he was entitled to PTD benefits and denied his claim. Mr. Moss appealed to the district court, which affirmed the denial of benefits. On appeal to this Court, Mr. Moss asserts the Medical Commission did not properly allocate the burden of proof as required under the odd lot doctrine. We affirm.

ISSUE

[¶2] Mr. Moss states the issue for this Court‟s determination as follows:

Whether the [Medical Commission] abused its discretion, [or] acted arbitrarily, capriciously or otherwise not in accordance with [the law] when it failed to follow the evidentiary procedure of the odd lot doctrine.

The Division asserts the Medical Commission‟s decision was supported by substantial evidence, was not arbitrary and capricious and was in accordance with Wyoming law.

FACTS

[¶3] In March of 2003, while working for Greene‟s Energy Service, Mr. Moss suffered a lumbar injury when an auger he was operating struck a rock and he was thrown to the ground.*fn1 Mary Neal, M.D., an orthopedic surgeon, concluded Mr. Moss had herniated a disc at L5-S1. Mr. Moss filed a claim with the Division for temporary total disability (TTD) benefits which, after an initial denial, the Division awarded.

[¶4] For nearly a year after the work injury, Mr. Moss received conservative treatment involving oral and injected medications and chiropractic care. Ultimately, Dr. Neal recommended surgery. In March of 2004, she performed a laminectomy at L5-S1 and an L4-S1 fusion with a hip graft and hardware installation.

[¶5] Mr. Moss became ill after the surgery. Thinking the hardware might be the cause, Dr. Neal performed another surgery in October 2004 to remove the hardware. Mr. Moss continued to have pain and Dr. Neal referred him to a pain management clinic where he was seen by Dr. Kyle Matsumura. From 2005 through the hearing date, Dr. Matsumura treated Mr. Moss on a regular basis for pain by injection, neurotomy*fn2 and prescription narcotics.

[¶6] In the course of treatment after the lumbar fusion, several doctors concluded that the fusion had failed. In 2007, Dr. Neal recommended that Mr. Moss undergo a revision fusion. Mr. Moss decided against the procedure because there was no guarantee it would result in a successful fusion, resolve his pain or increase his functional capacity.

[¶7] Meanwhile, in 2005, at the Division‟s request, Dr. Michael Kaplan reviewed Mr. Moss‟s medical records, physically examined him and gave him a 23% whole person impairment rating. Dr. Kaplan also concluded that Mr. Moss had reached maximum medical improvement. The Division issued a final determination terminating TTD benefits, giving Mr. Moss a 23% whole body impairment rating reduced by 10% for his 1995 impairment award and awarding him $7,123.97 in permanent partial impairment benefits.

[¶8] In 2006, Dr. Neal certified to the Division that Mr. Moss was permanently totally disabled as a result of the 2003 injury. Mr. Moss applied for PTD benefits. The Division denied the claim and referred the case to the Medical Commission. After a contested case hearing, the Medical Commission concluded Mr. Moss did not meet his burden of proving that he was entitled to PTD benefits and denied his claim. He appealed to the district court, which upheld the denial, and then he appealed to this Court.

STANDARD OF REVIEW

[¶9] In considering an appeal from a district court‟s review of an administrative agency‟s decision, we give no special deference to the district court‟s decision. Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 8, 188 P.3d 554, 557 (Wyo. 2008). Instead, we review the case as if it had come directly to us from the administrative agency. Id. Our review is governed by Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2009), which states:

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:

(i) Compel agency action unlawfully withheld or unreasonably delayed; and

(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:

(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;

(B) Contrary to constitutional right, power, privilege or immunity;

(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;

(D) Without observance of procedure required by law; or

(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

[¶10] When an administrative agency determines that the burdened party failed to meet his burden of proof, we decide whether there is substantial evidence to support the agency‟s decision to reject the evidence offered by the burdened party by considering whether that conclusion was contrary to the overwhelming weight of the evidence in the record as a whole. Dale, ¶ 22, 188 P.3d at 561. Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Bush v. State ex rel. Wyoming Workers' Compensation Div., 2005 WY 120, ¶ 5, 120 P.3d 176, 179 (Wyo. 2005) (citation omitted). Findings of fact are supported by substantial evidence if, from the evidence preserved in the record, we can discern a rational premise for those findings. Id.

[¶11] The question of whether the evidence establishes a prima facie case that an injured worker‟s physical impairment coupled with other factors such as his mental capacity, education, training and age places him within the odd lot category is a factual one for the agency to determine. Worker's Compensation Claim of Cannon v. FMC Corp., 718 P.2d 879, 885 (Wyo. 1986). If, in the course of its decision making process, the agency disregards certain evidence and explains its reasons for doing so based upon determinations of credibility or other factors contained in the record, its decision will be sustainable under the substantial evidence test. Dale, ¶ 22, 188 P.3d at 561. Importantly, our review of any particular decision turns not on whether we agree with the outcome, but on whether the agency could reasonably conclude as it did based on all the evidence before it. Id. We review an agency‟s conclusions of law de novo, and will affirm only if the agency‟s conclusions are in accordance with the law. Id.

DISCUSSION

[¶12] Mr. Moss contends the Medical Commission incorrectly ruled that he failed to prove his entitlement to PTD benefits. He asserts the Medical Commission reached that conclusion because it did not apply the standards for determining his right to benefits under the "odd lot" doctrine. Had the Medical Commission applied the proper standards, he contends, it would not have denied him benefits. The Division responds that substantial evidence supported the Medical Commission‟s ruling that Mr. Moss failed to prove he is permanently totally disabled.

[¶13] The applicable Wyoming Workers‟ Compensation Act provision defined the term "permanent total disability" as "the loss of use of the body as a whole or any permanent injury certified under W.S. 27-14-406, which permanently incapacitates the employee from performing work at any gainful occupation for which he is reasonably suited by experience or training." Wyo. Stat. Ann. § 27-14-102(a)(xvi) (LexisNexis 2007) (emphasis added.) We have said the statutory definition for permanent total disability is consistent with the odd lot doctrine, which permits a finding of PTD "in the case of 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 v. State ex el. Wyoming Workers' Safety & Comp. Div., 2008 WY 99, ¶ 11, 190 P.3d 159, 165 (Wyo. 2008), quoting Cardin v. Morrison-Knudsen, 603 P.2d 862, 863-64 (Wyo. 1979). Under the odd lot doctrine, a claimant who is not actually permanently totally disabled is able to receive permanent total disability benefits because the claimant‟s disability and other factors make the claimant de facto unemployable. State ex rel. Wyoming Workers' Safety & Comp. Div. v. Pickens, 2006 WY 54, ¶ 14, 134 P.3d 1231, 1236 (Wyo. 2006).

[¶14] To be entitled to an award of benefits under the odd lot doctrine, an employee must prove: 1) he is no longer capable of performing the job he had at the time of his injury and 2) the degree of his physical impairment coupled with other factors such as his mental capacity, education, training and age make him eligible for PTD benefits even though he is not totally incapacitated. Id. To satisfy this burden, an employee must also demonstrate he made reasonable efforts to find work in his community after reaching maximum medical improvement or, alternatively, that he was so completely disabled by his work-related injury that any effort to find employment would have been futile. Anaya v. Holly Sugar Corp., 928 P.2d 473, 475-76 (Wyo. 1996). If the employee meets his burden, the employer must then prove that "light work of a special nature which the employee could perform but which is not generally available in fact is available to the employee." Gilstrap v. State ex rel. Wyoming Worker's Comp. Div., 875 P.2d 1272, 1274 (Wyo. 1994).

[¶15] Mr. Moss asserts that he proved the degree of his physical impairment, coupled with other facts such as his mental capacity, education and training, placed him prima facie in the odd lot category, making him eligible for PTD benefits even though he is not totally incapacitated. Pickens, ¶¶ 13-14, 134 P.3d at 1236. He asserts that he also demonstrated that he made reasonable efforts to find work in his community after reaching maximum medical improvement. Anaya, 928 P.2d at 476. He contends the burden then shifted to the Division to prove, which it failed to do, that special work of a light or sedentary nature was actually available to him so as to disqualify him from PTD benefits under the odd lot doctrine. Gilstrap, 875 P.2d at 1274.

[¶16] The Division responds that the Medical Commission‟s decision is supported by substantial evidence. It contends Mr. Moss did not meet his burden of proving that he was so disabled that he could not be employed in some fashion and substantial evidence supported the Medical Commission‟s conclusions that his injury did not prevent him from performing work at a gainful occupation. Therefore, the ...


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