Appeal from the District Court of Niobrara County The Honorable Keith G. Kautz, Judge
The opinion of the court was delivered by: Davis, Justice.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, 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] Appellant Tyler L. Stallman worked for the Wyoming Department of Corrections at the Wyoming Women's Center in Lusk, Wyoming. She sustained significant injuries during a vehicle rollover while driving to pick up a prisoner in Sheridan. After receiving a 22% permanent partial impairment award from the Wyoming Workers' Safety and Compensation Division (the Division), she applied for permanent total disability (PTD) benefits. The Division denied her application, finding that she did not meet the statutory definition of permanent total disability. Ms. Stallman requested a contested case hearing, and the case was referred to a panel of the Medical Commission (the Commission or panel).
[¶2] Based upon the evidence presented, the Commission concluded that Ms. Stallman did not meet her burden of proving that she was entitled to PTD benefits under the odd lot doctrine. The district court affirmed, and Ms. Stallman appealed to this Court, claiming that the Commission's final order was unsupported by substantial evidence and contrary to applicable law due to improper application of the odd lot doctrine. We hold that Ms. Stallman presented a prima facie case showing that she was unemployable in her community due to her injuries, and that the Division failed to rebut this showing by demonstrating that there was in fact gainful employment available to her within a reasonable geographic area. We reverse the district court's order affirming the Commission's final order, and we remand this matter to the district court with directions that it remand the case to the Commission for further proceedings consistent with this opinion.
[¶3] Was the Commission's determination that Ms. Stallman was not entitled to permanent total disability benefits under the odd lot doctrine supported by substantial evidence and consistent with applicable law?
[¶4] On November 10, 2006, Tyler Stallman was working as a correctional officer for the Wyoming Women's Center in Lusk, Wyoming. She was driving to Sheridan in a state car to pick up an inmate when she encountered icy conditions on a bridge over Interstate 25 north of Douglas. She lost control of the vehicle, which spun out of control and rolled down an embankment. After she was extricated from the vehicle by emergency personnel, Ms. Stallman was transported first to Memorial Hospital of Converse County, and then transferred to Wyoming Medical Center (WMC) in Casper. There is no dispute that the accident occurred in the scope and course of her employment.
[¶5] Ms. Stallman suffered from multiple pelvic fractures, pulmonary and bodily contusions, a chipped tooth, and an impacted humeral head fracture of the right shoulder. A doctor's notes indicated that "[t]he accident appears to have been quite significant." Ms. Stallman was hospitalized for a week, during which her pelvic fractures were stabilized. She later underwent several surgeries, including a rhinoplasty*fn1 and a resurfacing arthroplasty of the right shoulder. After she was released from WMC, Ms. Stallman attended physical therapy and counseling for post-traumatic stress disorder (PTSD), and she participated in several years of post-operative care and rehabilitation directed by doctors at Casper Orthopedic Associates.
[¶6] Ms. Stallman did not return to her job as a corrections officer, but instead tendered her resignation and applied for worker's compensation benefits. The medical expenses related to the accident were paid in full by the Division. She applied for and received temporary total disability benefits until she was assigned a 22% permanent impairment rating and began receiving permanent partial impairment (PPI) benefits. She also applied simultaneously for permanent partial disability (PPD) benefits and permanent total disability (PTD) benefits.*fn2
[¶7] The Division denied her application for PPD benefits, and the Office of Administrative Hearings (OAH) upheld its determination on summary judgment as a matter of law. Both found that she had not actively sought work as required by Wyoming Statute § 27-14-405(h)(iii). The district court upheld the OAH's determination, but we reversed on appeal. Worker's Comp. Claim of Stallman v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2012 WY 147, 288 P.3d 707 (Wyo. 2012). We found that the Division had arbitrarily imposed a deadline for submission of documentation of efforts to locate a job not provided for by its rules, and that the six week period during which an applicant for PPD must seek employment under the Division's rules could span the date of application, rather than falling entirely on one side or the other of that date. Id., ¶¶ 18-- 26, 288 P.3d at 714--15. We also noted that the legislature "expressly directed in § 27-14-101 (LexisNexis 2011) that the Wyoming Worker's Compensation Act be construed to assure 'the quick and efficient' delivery of benefits to injured and disabled workers and that 'claims be decided on their merits.'" Id., ¶ 20, 288 P.3d at 715. We remanded the case for an evidentiary hearing on the merits, noting that "[t]he manner in which Ms. Stallman's claim has been treated satisfies neither of these objectives." Id., ¶¶ 26--27, 288 P.3d at 716.
[¶8] The Division also denied Ms. Stallman's application for Permanent Total Disability (PTD) benefits, finding she did not meet the statutory definition of permanent total disability pursuant to Wyo. Stat. Ann. § 27-14-102(a)(xvi) (LexisNexis 2005).*fn3 The proceedings related to that claim are the subject of this separate appeal.
[¶9] Evidence of impairment ratings was submitted in support of Ms. Stallman's application for PTD benefits. Dr. Anne MacGuire, a Casper rheumatologist, provided the first impairment rating on Ms. Stallman after an evaluation which took place on June 24, 2008. Dr. MacGuire noted that Ms. Stallman had reached maximum medical improvement on April 23, 2008, that she was able to sit, stand and squat to 50% without difficulty, and that her balance was "reasonable." Ms. Stallman's self-evaluation of her own condition indicated that: (1) she was able to drive from Casper to Lusk; (2) she could stand for one hour before needing to rest; (3) she could sit for half an hour before becoming uncomfortable; and (4) she was in consistent pain. Using the sixth edition of the AMA Guides to Evaluation of Permanent Impairment, Dr. MacGuire rated Ms. Stallman at a 20% whole person impairment: 15% right shoulder, 3% pelvis, and 2% left shoulder. Dr. MacGuire believed that Ms. Stallman was medically stable, and recommended that she return to work with some limitations.
[¶10] Ms. Stallman obtained a "Second Opinion Impairment Rating" from Dr. Michael Kaplan, a physical medicine and rehabilitation specialist, on October 9, 2008. Dr. Kaplan found that her pelvic fractures had healed satisfactorily, but that the pain from her shoulder fracture increased with activity. He rated Ms. Stallman at a 22% whole person impairment: 20% based upon the upper extremities and 2% on the pelvis. He noted that Ms. Stallman would not return to her previous job as a correctional officer "because of her multisystem problems, especially relevant to the shoulders and pelvis." He believed that she could return to the work force in the future in a more limited capacity, and he recommended that she avoid squatting, kneeling, and lifting items heavier than twenty to twenty-five pounds. The Division awarded Ms. Stallman a PPI rating of 22% based on Dr. Kaplan's evaluation, and she accepted it without objection.
[¶11] Ms. Stallman was treated by orthopedic surgeons Dr. Craig Smith and Dr. Steven Orcutt. Their clinical notes record the following: 02/22/2007: "I have discussed that she has had several missed appointments in therapy and the patient became quite tearful and states that she, since her accident, is afraid to leave her house. She often times stays at home and does not attend family functions such as Sunday dinners. She is concerned or fearful that she is going to be hit by another vehicle when she is driving on the street, particularly on a snowy day or during bad weather. I feel she certainly has some posttraumatic psychological issues . . . . The patient is very willing to proceed with some type of therapy so she can feel better." (Dr. Orcutt)
03/08/2007: "At some point, she clearly will require rehabilitation training and we will notify Worker's Compensation of this." (Dr. Orcutt)
10/22/2007: "Patient worked at the penitentiary. I do not see her at this point in time getting back to that type of work status given her multiple problems. I think occasional rehabilitation would be very appropriate to pursue at this juncture." (Dr. Smith)
1/30/2008: "Due to her impairment, I feel she is not capable of going back to work as a corrections officer due to the physical demands required in that job. It would be best to go to a vocational rehabilitation program and be trained for a more sedentary-type work environment." (Dr. Smith)
[¶12] Annie Haack, a Physician's Assistant (PA) employed by Dr. Smith, noted that there was "no improvement" as of March 2009, and that Ms. Stallman would not able to return to active duty as a correctional officer. After a December 2009 visit, Ms. Haack reiterated that there were no jobs available for Ms. Stallman at her former workplace due to her restrictions.
[¶13] Ms. Stallman also sought counseling for post-traumatic stress disorder from Jack Herter, Ph.D, a clinical psychologist, and Jane Stearns, M.S., a professional counselor. Following counseling sessions in January of 2008, Dr. Herter noted:
Since the accident, she reported having nightmares, intrusive thoughts, flashbacks, and panic attacks in response to trauma related and/or trauma like stimuli. For example, snowy, windy conditions; hearing the sound of the wind; and driving. However, as a mother with a 5-year-old son, she forces herself to drive locally, but she does so in [a] state of intense stress, while worrying and gripping the steering wheel tightly. As she recounted the details of the accident, the patient exhibited visible signs of anxiety an [sic] autonomic arousal. She tensed. She trembled. She fidgeted. Her face flushed.
Her pupils dilated. All of this confirmed a diagnosis of
PTSD, directly related to her work-related injury.
Ms. Stearns' notes indicated that "Tyler reports symptoms including panic sensations and anxiety associated with driving," and that "[s]he is very open in expressing her desire to get her life back to normal and feeling a strong sense of loss regarding her physical injuries."
Functional Capacity Evaluation
[¶14] Dr. Smith referred Ms. Stallman to Lanae Pickard, an occupational and physical therapist, for a functional capacity evaluation (FCE). The evaluation was performed in October of 2009. The FCE concluded that Ms. Stallman was incapable of performing her pre-injury jobs of corrections officer, guard, resident care aide, waitress, dining room attendant, or stock clerk. It described a "mismatch" between her demonstrated physical ability and the physical demands of these jobs because she could not lift, push, pull or carry objects weighing more than twenty-three pounds. Ms. Stallman was also unable to lift more than three pounds over her head.
[¶15] Ms. Pickard found the FCE results to be valid: "Overall test findings, in combination with clinical observations, suggest[ed] the presence of full physical effort on Ms. Stallman's behalf." She did not complain of pain during placebo tests, nor did her movement patterns improve with distraction. Her stated levels of pain were also proportional to her movement patterns. Ms. Pickard concluded that Ms. Stallman was best suited to jobs with light to sedentary physical demands, and that she "would ...