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Herrera v. State ex rel Wyoming Workers' Safety and Compensation Division

July 28, 2010

JAMES A. HERRERA, APPELLANT (RESPONDENT),
v.
STATE OF WYOMING, EX REL., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, APPELLEE (PETITIONER).



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

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

Before KITE, C.J., and GOLDEN, HILL, VOIGT*fn1, and BURKE, JJ.

[¶1] After sustaining a work related injury ultimately requiring amputation of his right index finger, James A. Herrera began taking an anti-depressant medication. The Wyoming Workers' Safety and Compensation Division (Division) paid for the medication for two years and then denied further payment. Mr. Herrera objected and, after a contested case hearing, the Office of Administrative Hearings (OAH) awarded him benefits. The Division sought review in district court and the district court reversed the award. We reverse the district court's ruling.

ISSUES

[¶2] Mr. Herrera presents two issues for this Court's consideration:

1. Whether the OAH's findings and conclusions were supported by substantial evidence.

2. Whether the OAH's findings and conclusions are in accordance with the law.

FACTS

[¶3] On October 1, 2002, Mr. Herrera was working for Groathouse Construction as a cement finisher. He and a co-worker were setting up cement forms and the co-worker was using a 10-pound sledge hammer to pound in a stake to hold the forms. He swung the sledge hammer, missed the stake and struck Mr. Herrera's right hand. The blow crushed Mr. Herrera's right hand and index finger. Mr. Herrera filed a report of injury and the Division awarded him benefits.

[¶4] Between the date of injury and 2006, Mr. Herrera underwent multiple surgeries on his right hand. In June of 2006, Mr. Herrera's physician prescribed the drug Lexapro to help relieve anxiety Mr. Herrera was experiencing as a result of his injury. After the surgeries proved unsuccessful in relieving Mr. Herrera's pain and other symptoms, his right index finger was amputated in March of 2008.

[¶5] The Division paid medical and other benefits for the treatment of Mr. Herrera's hand, including the Lexapro prescription. In June of 2008, however, the Division issued a final determination in which it denied further payment for the Lexapro.*fn2 As grounds for the denial, the Division asserted that Lexapro, commonly used as an anti-depressant, was used to treat a mental injury and, pursuant to Wyo. Stat. Ann. § 27-14-102(a)(xi)(J) (LexisNexis 2007), "medications used to treat mental health conditions cannot be paid six months after the claimant reaches maximum medical improvement."*fn3 Mr. Herrera objected to the determination and the OAH scheduled a contested case hearing.

[¶6] Following the hearing in October of 2008, the OAH awarded benefits. In its ruling, the OAH stated:

26. [T]his case involved a medication which appears to be prescribed for multiple reasons and not just for treatment of depression or anxiety. Herrera was a very credible witness and his unchallenged testimony was that the Lexapro was prescribed to treat his pain and elevated blood pressure, in addition to his anxiety. Herrera credibly explained that when the doctor attempted to discontinue the Lexapro prescription, Herrera's hand pain increased significantly and due to the severe hand pain his blood pressure became dangerously high. Once Herrera restarted the prescription, his hand pain decreased and his blood pressure returned to a safe level.

27. Based on the unchallenged testimony and proof of the results of the Lexapro prescription, this Office finds the Lexapro is being prescribed to treat not only Herrera's anxiety, but also his physical injury. As the Lexapro is being used as a pain control for Herrera's significant injury, this Office finds it is not subject to the limits of Wyo. Stat. Ann. ยง 27-14-102(a)(xi)(J), (LEXIS 2002). Therefore, Herrera has proven, by a preponderance of the evidence, all of the essential elements of his claim. Specifically, Herrera proved he suffered a significant right hand injury while in the course and scope of his duties for ...


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