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

Supreme Court of Wyoming

November 8, 2013

In the Matter of the Worker's Compensation Claim of Allen TRUMP, Appellant (Petitioner),

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[Copyrighted Material Omitted]

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Representing Appellant: Robert A. Nicholas, Nicholas Law Office, Cheyenne, Wyoming.

Representing Appellee: Gregory A. Phillips, Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Peter Howard, Student Intern.

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

BURKE, Justice.

[¶ 1] The Wyoming Workers' Safety and Compensation Division awarded benefits to Appellant, Allen Trump, after he experienced a workplace injury to his knees in 1993. In 2009, Mr. Trump sought payment for a left knee arthroscopy that he claimed was related to his workplace injury. The Division denied the claim. Mr. Trump requested a contested case hearing, and the hearing examiner upheld the Division's decision to deny benefits. Mr. Trump appealed to the district court,

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which affirmed the hearing examiner's order. He challenges the district court's decision in this appeal. We affirm.


[¶ 2] Mr. Trump presents the following issues:

1. Is the OAH's decision supported by substantial evidence?
2. Did the OAH abuse its discretion in excluding hearsay testimony from Mr. Trump regarding the medical opinion of his treating physician?


[¶ 3] Mr. Trump experienced a workplace injury on August 11, 1993 while working on a sewer excavation project for his employer, Mendez Excavation. According to his initial report of injury, Mr. Trump injured his " leg [and] knee" when he stood up from a squatting position he had held in order to set a cover for a sewer pipe. He was taken to the hospital after the incident for " right knee pain," where he reported that when he stood up, he " heard [his knee] pop, more on the right than the left." In the emergency room, Mr. Trump was seen bye Dr. Thomas J. Gasser, who placed him on crutches and advised him to keep his knee immobilized.

[¶ 4] Three weeks later, Dr. Gasser ordered an MRI of the right knee, which revealed a tear in Mr. Trump's medial meniscus. Dr. Gasser performed a right knee arthroscopy and partial medial meniscectomy on September 21, 1993. However, Mr. Trump continued to experience pain in his right knee after surgery. After attempting to treat the pain with oral anti-inflammatories and a steroid injection, Mr. Trump elected to have a second right knee arthroscopy on February 7, 1994.

[¶ 5] In January, 1994, approximately three months after his initial right knee surgery, Mr. Trump filed a second report of injury indicating that when he injured his right knee, he also experienced pain in his left knee. Three months later, in April, 1994, Dr. Gasser ordered an MRI of Mr. Trump's left knee, which revealed a medial meniscus tear. The MRI report also stated that " No meniscal displacement is evident and there is preservation of meniscal height." Dr. Gasser performed a left knee arthroscopy and partial medial meniscectomy on May 9, 1994.

[¶ 6] At a follow-up visit with Dr. Gasser on May 26, 1994, Mr. Trump reported that his left knee was doing well and was causing him only a small amount of pain, but that his right knee continued to bother him. Mr. Trump began a physical therapy program in July, and the strength and flexibility of his left knee showed immediate and continued improvement through the summer and fall of 1994. A physical therapy report from late July noted that Mr. Trump " reports left knee is feeling good," but that he " complains of right knee pain, popping and grinding." Similarly, in September, Mr. Trump's physical therapist reported that his " left knee is feeling a lot better," but that " [h]e continues to have a lot of right knee pain."

[¶ 7] Mr. Trump continued to see Dr. Gasser during the fall of 1994. The notes from those visits reveal that Mr. Trump had consistent right knee pain, but they make no mention of his left knee. Due to the continuing problems with Mr. Trump's right knee, Dr. Gasser performed a third arthroscopy and partial medial meniscectomy on the right knee in September, 1994. During a follow-up visit in December, Dr. Gasser noted that Mr. Trump's knees were " working quite well," but indicated that Mr. Trump would benefit from weight loss.

[¶ 8] Dr. Gasser continued to see Mr. Trump on a monthly, and sometimes bi-monthly, basis during the first six months of 1995. During this period, Mr. Trump reported pain in both knees, and sometimes reported that his right knee hurt worse than the left. Dr. Gasser treated Mr. Trump's pain using various combinations of prescription and over-the-counter anti-inflammatory medications, and provided Mr. Trump with braces to wear on both knees. In July, 1995, Dr. Gasser sent a letter to the Division stating that Mr. Trump was " at a stable situation and therefore has probably reached [maximum medical improvement]. I will rate him for this if you wish." In a treatment note from July, 1995, Dr. Gasser assigned a 10%

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impairment rating to Mr. Trump's left knee. Following an examination in December, 1995, Dr. Gasser reported that " Patient's knees are working well. Both patellas are tracking well. He is not wearing his braces anymore. He is really quite comfortable. The knees occasionally pop[ ] still but he doesn't have much pain when they do."

[¶ 9] Mr. Trump saw Dr. Gasser for routine examinations at approximately three month intervals during 1996 and 1997. Dr. Gasser consistently noted that Mr. Trump's knees were " moving" and " working" well. However, Dr. Gasser's notes during this period also reveal that Mr. Trump was " still having some knee pain on occasion," which he was able to control by limiting his activity. Dr. Gasser's notes reflect that Mr. Trump was also experiencing shoulder and chest pain. Throughout 1996 and 1997, Dr. Gasser instructed Mr. Trump to treat his pain as needed with Orudis, which at that time was an over-the-counter non-steroidal anti-inflammatory drug.

[¶ 10] After 1997, Dr. Gasser saw Mr. Trump on four occasions at irregular intervals. In April, 1998, Dr. Gasser noted that Mr. Trump stopped taking Orudis because it was causing stomach pain and that he began having shoulder and knee pain as a result. Dr. Gasser also noted, however, that " The knees track well. There is no effusion in either one. Cruciate and collateral ligaments are intact to stress." Dr. Gasser prescribed Arthrotec as a substitute for Orudis that would be gentler on Mr. Trump's stomach. In August, 1998, Dr. Gasser noted that the Arthrotec was " controlling [Mr. Trump's] knee pain very nicely," and he instructed Mr. Trump to continue taking it as needed. In the " Objective" section of his notes, Dr. Gasser stated that " Neither knee is swollen today. He is moving well. He is walking well without limp." Following Mr. Trump's next visit, in December, 1999, Dr. Gasser noted that " The knee is not swollen. It moves smoothly without significant crepitation. There is no effusion and no joint line tenderness." Similarly, after Dr. Gasser's last examination of Mr. Trump, in July, 2001, he noted that " His knee is working very well today.... It moves smoothly and without crepitation." Although Dr. Gasser's notes from the 1999 and 2001 examinations indicate that Mr. Trump continued to take Arthrotec, those notes refer only to Mr. Trump's " knee," without specifying which knee had been examined.

[¶ 11] In July, 2002, Mr. Trump sought treatment from Dr. Meade Davis for pain in his right knee, which had been hurting him for about ten days. Dr. Davis ordered an MRI of the right knee, which revealed a medial meniscus tear. Dr. Davis subsequently performed right knee arthroscopies on Mr. Trump in August, 2002 and February, 2003. Three weeks after his fifth right knee surgery, in February, 2003, Mr. Trump submitted to a comprehensive physical examination. Notes from that exam indicate that Mr. Trump was obese and that he smoked a pack of cigarettes per day. The examining physician stated that Mr. Trump " needs to lose weight and needs to stop smoking" and that " Smoking cessation and dietary restriction with weight loss should be the next thing on his agenda."

[¶ 12] In August, 2003, Dr. Davis wrote a letter to the Division stating that Mr. Trump had reached maximum medical improvement in his right knee and concluded that Mr. Trump had a 27% total impairment to his right knee. In April, 2004, after Mr. Trump complained of intense pain in his right knee, Dr. Davis ordered an MRI, which revealed a complete tear in Mr. Trump's anterior cruciate ligament (ACL). Mr. Trump, however, opted not to undergo another surgery at that time. There is no indication in the record that Mr. Trump sought any treatment for his left knee from Dr. Davis.

[¶ 13] In June, 2004, Mr. Trump began seeing Dr. Pete Kuhn to treat the tear in his right ACL. Although Dr. Kuhn's notes indicate that Mr. Trump initially presented with an " ACL minus left knee," Dr. Kuhn later clarified that he had intended to refer to Mr. Trump's right ACL. Similarly, after an examination in September, 2004, Dr. Kuhn wrote " Left knee follow-up but also right knee arthritis," but he later acknowledged that he had reversed the references to Mr. Trump's knees in his dictation. Dr. Kuhn surgically repaired Mr. Trump's right ACL in July,

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2006. During a follow-up visit in December, 2006, in addition to discussing the condition of Mr. Trump's right knee, Dr. Kuhn noted that Mr. Trump was experiencing " medial joint line pain on the left knee." However, no treatment plan with respect to the left knee was discussed. Approximately one month later, in January, 2007, Dr. Kuhn performed a second operation on Mr. Trump's right knee to remove a screw that had been used to reconstruct the ACL. The record indicates that Mr. Trump did not see Dr. Kuhn again until May, 2008. Dr. Kuhn's notes from that visit indicate that Mr. Trump was experiencing instability and grinding in his right knee. There is no mention of Mr. Trump's left knee.

[¶ 14] On July 28, 2009, over a year after his previous office visit, Mr. Trump sought treatment from Dr. Kuhn for pain in his left knee, the condition at issue in this case. Dr. Kuhn requested preauthorization from the Division to perform an arthroscopy on Mr. Trump's left knee. In response to Dr. Kuhn's request, the Division asked Dr. Mark Rangitsch for an independent medical evaluation to determine whether there was a causal connection between Mr. Trump's left knee pain and his 1993 workplace injury. After setting forth Mr. Trump's medical history and the results of his physical examination, Dr. Rangitsch provided the following evaluation:

At this point, I feel the patient does have an internal derangement to his left knee with likely a medial meniscus tear. In addition, he may have some chondromalacia in the knee, probably of the medial femoral condyle. As to any specific relation of the current left knee problems to an injury on August 11, 1993, this would be total conjecture. The fact that the patient has not had treatment for this for greater than 14 years, it is my opinion that it is highly unlikely that the current left knee problems are directly related to his injury back in 1993, therefore, I would not pre-authoriz[e] a left knee arthroscopy.

The Division issued a final determination on November 4, 2009, denying benefits relating to treatment of Mr. Trump's left knee.

[¶ 15] Mr. Trump objected to the Division's final determination and requested a contested case hearing before the Office of Administrative Hearings (OAH). Prior to the hearing, Mr. Trump sought a second opinion from Dr. Jay Carson. In his initial assessment, Dr. Carson noted that Mr. Trump had " Progressive left knee arthritis, likely traumatic in nature," and that " This could be associated with his Workers' Comp injury, but secondary to the long time differential, it is difficult to make that direct association." Mr. Trump requested that his care be transferred to Dr. Carson, despite Dr. Carson's recommendation that he continue to follow-up with Dr. Kuhn. In a subsequent assessment, Dr. Carson noted that Mr. Trump reported that he had undergone " at least" two surgeries on his left knee. Dr. Carson ordered an MRI of Mr. Trump's left knee, which revealed a " posterior horn tear of the medial meniscus." Despite Dr. Carson's opinion that there were " significant limitations" to relieving Mr. Trump's pain through surgical intervention, and that surgery would not " fix" his left knee issues, Mr. Trump asked Dr. Carson to perform a left-knee arthroscopy. Dr. Carson proceeded with the arthroscopy on September 3, 2010.[1]

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[¶ 16] Mr. Trump's contested case hearing was held on March 17, 2011. The hearing examiner received documentary evidence relating to Mr. Trump's medical history, as well as the deposition testimony of Drs. Kuhn and Rangitsch, and testimony from Mr. Trump. Following the hearing, the OAH issued an order concluding that Mr. Trump " did not prove, by a preponderance of the evidence, his left knee injury and symptoms treated by Dr. Kuhn and Dr. Carson, were caused by or related to his August 11, 1993, work related accident." Importantly, the hearing examiner found Dr. Rangitsch's testimony to be more persuasive than Dr. Kuhn's testimony. Mr. Trump filed a petition for judicial review in district court and the district court affirmed. Mr. Trump filed a timely appeal from the district court's decision. Additional facts will be presented as necessary in the discussion below.


[¶ 17] 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 ...

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