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In re Worker's Compensation Claim of Hartmann

Supreme Court of Wyoming

January 6, 2015


Page 378

Appeal from the District Court of Campbell County. The Honorable Michael N. Deegan, Judge.

Representing Appellant: Peter K. Michael, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Samantha Caselli, Assistant Attorney General.

Representing Appellee: Peter J. Timbers of Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming.

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


Page 379

KITE, Justice.

[¶1] The Office of Administrative Hearings (OAH) found that David J. Hartmann failed to prove a causal link between his dizzy spells and an earlier work injury. Mr. Hartmann petitioned for review in district court, which held that the OAH failed to apply the second compensable injury rule and its decision was not supported by substantial evidence. The district court reversed the OAH determination and remanded the case for reconsideration under the second compensable injury rule.

[¶2] Rather than pursuing the case before the OAH, the Wyoming Workers' Safety and Compensation Division (Division) appealed to this Court claiming the district court's decision was in error. We hold that the district court's ruling was not an appealable order. However, we exercise our discretion to convert the notice of appeal to a petition for review. We conclude the OAH failed to invoke and apply the applicable law. We further conclude that when the applicable law is applied, the OAH decision to reject Mr. Hartmann's evidence is against the overwhelming weight of the evidence. We affirm the district court's order to the extent it held the OAH failed to apply the second compensable injury rule but reverse the order remanding the case to the OAH for reconsideration. Applying the second compensable injury rule, we hold that Mr. Hartmann was entitled to benefits. We remand to the district court for an order remanding the case to the OAH for entry of an order awarding Mr. Hartmann benefits.


[¶3] The issues we consider are:

1. Whether the district court's order is a final appealable order.
2. Whether the OAH properly applied the applicable law.
3. Whether the OAH findings and conclusions are supported by substantial evidence when the applicable law is applied.


[¶4] On February 24, 2010, Mr. Hartmann was driving a 240-ton truck at the North Antelope Rochelle Mine in the course of his employment with Peabody Powder River Services, LLC when he was struck

Page 380

from behind by a shovel bucket. His testimony that the shovel bucket was large enough to hold a couple of Volkswagen Beetles was undisputed. The shovel bucket hit the headache rack, a protective steel barrier between the cab and bed of the truck. Mr. Hartmann testified that when the shovel bucket hit the truck, his body went numb, he was nearly knocked unconscious and he did not know where he was for a short time. He was taken to the emergency room where he complained of neck pain. After an x-ray and CT scan, the emergency room physician diagnosed Mr. Hartmann with cervical strain and released him to return to work with the recommendation that he follow up in three to seven days with Dr. Lawrence Jenkins, a doctor Mr. Hartmann had previously seen for symptoms related to a C5-6 disc herniation.

[¶5] On March 4, 2010, Mr. Hartmann saw Dr. Jenkins. Mr. Hartmann reported that he was having persistent numbness and tingling in his arms as a result of the February 24, 2010, work injury. Dr. Jenkins concluded that the injury had exacerbated the C5-6 herniation. Expressing hope that the exacerbation was temporary, Dr. Jenkins advised Mr. Hartmann to take an anti-inflammatory daily, prescribed physical therapy and asked him to return in three weeks.

[¶6] On April 6, 2010, Mr. Hartmann saw Dr. Kenneth Pettine. Mr. Hartmann reported at that time that his neck symptoms had gotten much worse. Upon examining Mr. Hartmann, Dr. Pettine found:

He has a 50% loss of cervical motion and pain to palpation in the paraspinal/suboccipital area with muscle spasm present. He has a positive Spurling's compression test. He had motor weakness and sensory changes in a C6 distribution. There is minimal evidence of intrinsic shoulder/elbow pathology but no evidence of acute skin changes, distal swelling or vascular changes.[1]

Dr. Pettine advised Mr. Hartmann there was a 90% chance his condition would improve within three months and prescribed an anti-inflammatory.

[¶7] Mr. Hartmann returned to Dr. Pettine's office on June 8, 2010, complaining of ongoing neck pain, headaches and interscapular pain. Comparing a new MRI to earlier MRIs, Dr. Pettine found " a definite disc herniation at C5-6." Dr. Pettine advised Mr. Hartmann that his options were to live with his symptoms or undergo surgery. He noted that Mr. Hartmann was " quite miserable and unable to work due to his symptoms" and " anxious to proceed with an artificial disc replacement in his cervical spine in an attempt to decrease pain and increase function."

[¶8] At a subsequent exam in October, 2010, Dr. Pettine reported that Mr. Hartmann's neck continued to be a problem -- " [h]e has ongoing severe neck pain, headaches, interscapular pain and radiating arm pain." To address those issues, Dr. Pettine performed a cervical disc replacement at C5-6. Up to this point, the Division paid benefits for the treatment related to the February, 2010 neck injury.

[¶9] In February, 2011, a year after suffering the compensable neck injury and four months after his surgery, Mr. Hartmann began experiencing dizzy spells. His primary care physician referred him to Dr. Angelo Santiago, a neurologist and neurophysiologist. After performing a neurological exam and testing, the results of which were normal, Dr. Santiago concluded Mr. Hartmann might be suffering from benign paroxysmal positional vertigo. He referred Mr. Hartmann to Kathy Blair, a doctor of physical therapy, board certified orthopedic clinical specialist and certified vestibular therapist, for further examination and treatment.

[¶10] Dr. Blair performed testing and determined that Mr. Hartmann did not have paroxysmal positional vertigo. After further testing and based upon Mr. Hartmann's history of neck problems, Dr. Blair concluded he was suffering from cervicogenic dizziness. Dr. Blair treated the condition with manual

Page 381

therapy, therapeutic exercises and needle point triggering. The treatment significantly lessened Mr. Hartmann's dizziness.

[¶11] In the meantime, Dr. Santiago had submitted bills to the Division for his treatment related to Mr. Hartmann's dizziness. The Division concluded Mr. Hartmann's dizziness was not related to his February, 2010, work injury and issued final determinations denying payment of Dr. Santiago's bills. Mr. Hartmann objected and requested a contested case hearing. After the hearing, the OAH concluded Mr. Hartmann did not meet his burden of proving his dizziness was related to his February 2010 work injury. However, the OAH concluded Dr. Santiago's testing was reasonable and necessary to rule out any serious cause of the dizziness and benefits should be awarded for the treatment he provided in March of 2011.

[¶12] Mr. Hartmann filed a petition for review in district court. After considering the parties' respective briefs and the record, the district court reversed the OAH's decision denying benefits for treatment for dizziness after Dr. Santiago's March 2011 examinations. The district court concluded the OAH had failed to apply the second compensable injury rule. The district court also noted that several of the OAH's findings appeared to be contrary to the overwhelming weight of the evidence. The district court remanded the case to the OAH for reconsideration of all issues under the second compensable injury rule. The Division appealed the district court's order to this Court.


1. Appealable Order

[¶13] Before addressing the merits of the Division's appeal, we must first address whether the district court's order is appealable. The issue of whether the district court's order is final and appealable is one of law subject to de novo review. Northwest Bldg. Co., LLC v. Northwest Distributing Co., Inc., 2012 WY 113, ¶ 26, 285 P.3d 239, 245 (Wyo. 2012).

[¶14] Pursuant to W.R.A.P. 1.05, an appealable order is " an order affecting a substantial right in an action, when such order, in effect, determines the action and prevents judgment[.]" In Schwab v. JTL Group, Inc., 2013 WY 138, ¶ 13, 312 P.3d 790, 794 (Wyo. 2013), we concluded the order from which the appeal was taken was not an appealable order. After an initial determination denying benefits, the Division issued a redetermination awarding benefits. Id., ¶ ¶ 4-5, 312 P.3d at 792. The employer failed to object and request a hearing within the time the Division allowed. Id., ¶ 7, 312 P.3d at 792. After the employer filed a late objection and hearing request, the Division referred the case to the OAH for hearing. Id. The employee filed a motion for summary judgment based upon the employer's untimely objection and the OAH granted it. Id. The employer appealed to the district court, which reversed and remanded the matter to the OAH for a hearing to determine whether the Division waived the deadline for the employer's objection and equitable estoppel applied to prevent enforcing the deadline. Id. ¶ ¶ 7-8, 312 P.3d at 793. Rather than pursuing the matter before the OAH, the employee appealed to this Court. Id., ¶ 9, 312 P.3d at 793. We held the district court's order was not an appealable order because it did not determine the action as W.R.A.P. 1.05(a) requires; instead, the district court's order remanded the case to the OAH for further substantive proceedings. Id., ¶ 13, 312 P.3d at 794 . In reaching that result, we distinguished the district court's order remanding for a contested case hearing from an order instructing the OAH to perform the ministerial act of awarding or denying benefits.

[¶15] Like the order in Schwab, the district court's order here remanded the matter for further substantive proceedings, in this case reconsideration of all issues under the second compensable injury rule. The order did not, therefore, determine the action nor was it a ministerial act awarding or denying benefits. The district court's order is not an appealable order.

[¶16] In Schwab, this Court's conclusion that the district court's order was not an appealable order did not end the discussion. Rather, the Court exercised its discretion to convert the notice of appeal to a petition for writ of review under W.R.A.P. 13.

Page 382

The Court concluded the single issue presented was one of law and an appeal from the district court's order would materially advance resolution of the litigation. Id., ¶ 14, 312 P.3d at 795. The Court similarly converted an appeal to a writ of review in Stewart Title Guar. Co. v. Tilden, 2005 WY 53, ¶ 7, 110 P.3d 865, 870 (Wyo. 2005) because the non-final order from which appeal was taken presented only questions of law fundamental to the action and immediate review by this Court was in the best interest of judicial economy. See also In re General Adjudication of Water Rights, 803 P.2d 61 (Wyo. 1990), in which this Court treated an attempted appeal as a ...

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