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Michelle Kenyon v. State of Wyoming

February 2, 2011


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

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

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

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made before final publication in the permanent volume.

[¶1] Michelle Kenyon sought worker's compensation benefits for arthroscopic right knee surgery necessitated by a work-related injury and for a subsequent total knee replacement. After a contested case hearing, the Office of Administrative Hearings (OAH) awarded benefits for the arthroscopic surgery and related treatment but denied benefits for the total knee replacement, ruling that she did not satisfy her burden of proving that her work related injury necessitated that procedure. Ms. Kenyon petitioned for judicial review and the district court affirmed the OAH decision. Ms. Kenyon appealed to this Court claiming the OAH failed to apply the second compensable injury rule and its associated burden of proof, improperly found the Wyoming Worker's Compensation Division's (Division) expert was more persuasive than her treating physician and improperly determined that she was not credible. We affirm.


[¶2] Ms. Kenyon presents the following issue for this Court's consideration:

Whether the Office of Administrative Hearing's Findings of Fact and Conclusions of Law are in accordance with the law.


[¶3] Ms. Kenyon has a long history of right knee problems. After she injured her right knee in a non-work related accident, Dr. Peter Rork, M.D., performed surgery in 1999, which included anterior cruciate ligament (ACL) reconstruction, partial lateral meniscectomy and debridement of loose cartilage. Because she continued to experience pain, Dr. Rork performed a second surgery in 2000. X-rays taken in the summer of 2000 showed osteoarthritic changes in the right knee, and Dr. Rork instructed her to use a brace.

[¶4] On March 19, 2006, Ms. Kenyon injured her right knee while working for Franks Westates near Pinedale, Wyoming. She was working in the oilfield on a casing crew when she caught her foot under a vent. In the process of trying to free her foot, she twisted her right knee. She again sought medical treatment from Dr. Rork, and he operated on her knee on March 29, 2006. This time, he performed a partial lateral meniscectomy, debridement of loose cartilage, and three compartment synovectomy. Tests conducted at that time also showed osteoarthritic degenerative changes.

[¶5] Ms. Kenyon saw Dr. Rork for follow up treatment through May 2, 2006. His notes from that appointment indicated that she had good days and bad days but continued to improve. He instructed her to continue physical therapy and remain off work. Although he expected to see her for more follow up appointments, she did not return for approximately eighteen months.

[¶6] Ms. Kenyon filed a report of injury on April 20, 2006. She indicated in her report that she had previously injured and undergone surgery on her right knee. On May 16, 2006, the Division issued a final determination, denying benefits because her report of injury had not been filed in a timely fashion and the Division had not received copies of the medical records from her pre-existing injury. Ms. Kenyon objected to the final determination and requested a hearing.*fn1

[¶7] When Ms. Kenyon finally saw Dr. Rork again in November 2007, she reported that she was experiencing increasing discomfort in her right knee. The radiological evaluations showed "significant osteoarthritic changes" in Ms. Kenyon's knee. Dr. Rork stated in his notes that he believed Ms. Kenyon would eventually need a total knee arthroplasty (total knee replacement). With regard to the cause of the potential total knee replacement, Dr. Rork stated:

She had knee arthroscopy and debridement on March 29 and never really bounced back from that. I believe that I am not able to say with confidence that she would have ended up at this point without the work-related injury, but I am able to say with confidence that she is here because of the work-related injury. She will need a total knee arthroplasty. She has a hearing with worker's compensation and we will contact her attorney at her request concerning the same.

Dr. Rork performed a total knee replacement on July 9, 2008. Ms. Kenyon requested workers' compensation benefits for that procedure as well as for the March 2006 surgery, and the Division maintained she was not entitled to benefits for either procedure.

[¶8] At the contested case hearing held on December 3, 2008, Ms. Kenyon testified and presented the deposition testimony of Dr. Rork. The Division submitted a report prepared by Paul Ruttle, M.D., who had performed an orthopedic medical evaluation of Ms. Kenyon and reviewed her medical records. The OAH left the evidence open at the conclusion of the hearing because Dr. Ruttle was scheduled to be deposed later. The hearing was reconvened on February 11, 2009, at which time Dr. Ruttle's deposition

[¶9] The OAH issued a decision in which it awarded benefits for the "acute" injury and associated surgery in March 2006, but denied benefits for the total knee replacement in July 2008, concluding that procedure was not related to the work injury. Ms. Kenyon petitioned the district court for review, and it affirmed the OAH decision. She then appealed to this Court.


[¶10] On appeal from a district court's review of an administrative agency's decision, we review the case as if it had come directly from the agency and do not give any deference to the district court's decision. Dutcher v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2010 WY 10, ¶ 9, 223 P.3d 559, 561 (Wyo. 2010); Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 8, 188 P.3d 554, 557 (Wyo. 2008). Our review is governed by Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2009):

(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.

[¶11] In accordance with § 16-3-114(c), we review the agency's findings of fact by applying the substantial evidence standard. 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. Wyo. Workers' Comp. Div., 2005 WY 120,

¶ 5, 120 P.3d 176, 179 (Wyo. 2005) (citations 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.

[¶12] With regard to an agency determination that the claimant did not satisfy her burden of proof, we have said:

If the hearing examiner determines that the burdened party failed to meet his burden of proof, we will 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. 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. Importantly, our review of any ...

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