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In the Matter of the Worker's Compensation Claim of v. State of Wyoming

November 14, 2012

IN THE MATTER OF THE WORKER'S COMPENSATION CLAIM OF: MICHAEL WILLEY, APPELLANT (PETITIONER),
v.
STATE OF WYOMING, EX REL., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, APPELLEE (RESPONDENT).



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

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

Before KITE, C.J., and GOLDEN,*fn1 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 any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] 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 challenges the district court's order affirming the Medical Commission's decision to uphold the Division's final determination. We affirm.

ISSUE

[¶2] Appellant presents the following issue for our consideration:

Whether the Medical Commission's decision is supported by substantial evidence.

FACTS

[¶3] In May, 2009, Mr. Willey was injured in the course of his employment with Precision Well Service, Inc. He was injured while working under a vehicle that was suspended a few feet off the ground by a backhoe. The vehicle slipped from its support and landed on Mr. Willey, pinning him beneath the vehicle. He was taken to the emergency room, where x-rays suggested a "[n]ondisplaced fracture" in one of his ribs. Mr. Willey was treated and released.

[¶4] Two days after the accident, Mr. Willey saw Dr. Joseph Allegretto, an orthopedist, who treated Mr. Willey for pain symptoms. Dr. Allegretto ordered an MRI, which revealed "[m]ild disc protrusion" in Mr. Willey's cervical spine, and "[m]inimal broad based protrusion" in Mr. Willey's cervical and thoracic spine, which was "not impinging on the [spinal] cord." During the next few months, Mr. Willey was treated with spinal steroid injections and pain medication. In September, 2009, a "large inferior scapular hematoma" that had developed as a result of Mr. Willey's accident was surgically removed from his shoulder. Mr. Willey was subsequently referred to Dr. Tuenis Zondag, a pain management physician, for additional spinal steroid injections. After examining Mr. Willey in January, 2010, Dr. Zondag reported that Mr. Willey had normal range of motion in his shoulder and that the steroid injections had alleviated his neck and shoulder pain.

[¶5] Mr. Willey, however, continued to experience back pain and was referred to Dr. Thomas Kopitnik, a neurosurgeon, for further treatment. Dr. Kopitnik diagnosed Mr. Willey with "mild diffuse disc bulging" in the cervical and thoracic spinal regions. In February, 2010, Dr. Kopitnik noted that "[Mr. Willey's] last injection did help to relieve all of his pain complaints. He no longer complains of any pain to the cervical spine or into the upper extremities. He does have some pain upon occasion between the shoulder blades. . . . He states he would like to return to work full-duty. He denies any difficulty with weakness or paraesthesias." Dr. Kopitnik also noted that Mr. Willey's "[m]otor strength is 5/5 throughout bilateral upper extremities." On February 28, 2010, it was determined that Mr. Willey had reached maximum medical improvement.

[¶6] The following month, at the request of the Division, Dr. Allegretto examined Mr. Willey for the purpose of providing an independent medical evaluation (IME) and impairment rating. Dr. Allegretto concluded that Mr. Willey was entitled to a whole body impairment rating of 25%. His rating was based in large part on his classification of Mr. Willey's impairment as an "alteration of motion segment integrity," or AOMSI. The Division requested a second opinion from Dr. Craig Uejo, who determined that Mr. Willey should receive a 2% whole body impairment rating. In light of the discrepancy between the two ratings, the Division requested a third opinion from Dr. Franklin Shih. Dr. Shih also provided a 2% whole body impairment rating. Neither Dr. Uejo nor Dr. Shih classified Mr. Willey's injury as an AOMSI. Based on the findings of Drs. Shih and Uejo, the Division issued a final determination awarding Mr. Willey a 2% permanent partial impairment benefit.

[¶7] Mr. Willey challenged the Division's final determination, and the matter was referred to the Medical Commission Hearing Panel. A hearing was held on June 23, 2011. During the hearing, the Medical Commission heard testimony from Mr. Willey and was presented with relevant medical records, as well as Dr. Uejo's evaluation report and the deposition testimony of Dr. Shih and Dr. Allegretto. The Commission concluded that Mr. Willey's injuries should not be classified as an AOMSI, and determined that the "medical records are strongly corroborative of the 2% whole body physical impairment award." The Commission ultimately determined that "Mr. Willey has failed to meet his burden of proof that he is entitled to a physical impairment rating beyond the 2% whole body rating provided by the Division as a result of his work injury of May 21, 2009." The district court affirmed the Medical Commission's decision. Mr. Willey timely appealed the district court's order.

STANDARD OF REVIEW

[¶8] Review of an administrative agency's action is governed by the Wyoming Administrative Procedure Act, which provides that: (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:

(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 ...


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