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In re Worker's Compensation Claim of Vandre

Supreme Court of Wyoming

March 31, 2015


Appeal from the District Court of Goshen County The Honorable Keith G. Kautz, Judge.

Representing Appellant: Herbert K. Doby, Torrington, WY.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; and Robert J. Walters, Senior Assistant Attorney General.

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

HILL, Justice.

[¶1] In 2007, Harold F. Vandre suffered compensable work injuries when he was run over and dragged by an asphalt paver, including loss of his right leg, rib fractures, a collapsed lung, and a closed head injury. In 2012, Mr. Vandre sought worker's compensation benefits to cover medical expenses related to his chronic obstructive pulmonary disease (COPD), and those benefits were denied on the basis that the COPD was unrelated to Mr. Vandre's work injuries. The Office of Administrative Hearings (OAH) upheld the denial of benefits, finding that Mr. Vandre had not met his burden of showing that his work injuries materially aggravated his preexisting COPD. Mr. Vandre appealed to the district court, which affirmed the OAH decision. We reverse.


[¶2] Mr. Vandre states the issues on appeal as follows:

1. Was the agency's decision supported by substantial evidence in denying Appellant's claims for medical benefits filed in connection with Appellant's pre-existing and continuing COPD issues that were aggravated, accelerated, or exacerbated by his original compensable work injury with McMurry Ready Mix Company?
2. Did the agency act arbitrarily and capriciously in denying Appellant's claims for medical benefits filed in connection with his pre-existing and continuing COPD issues that were aggravated, accelerated, or exacerbated by his original compensable work injury with McMurry Ready Mix Company?


A. Work Injury and Treatment

[¶3] On August 23, 2007, Harold Vandre, who lives in Torrington, Wyoming, was working for McMurry Ready Mix Company as a heavy equipment operator on a project near Pinedale, Wyoming. On that morning, Mr. Vandre was operating a dozer but had exited the dozer and was walking along the shoulder of the road on which he was working. While walking along the shoulder, he was struck by an asphalt paver and, with his right leg caught in the paver, was dragged approximately 150 feet. Mr. Vandre's right leg was damaged to the extent that it required amputation just below the pelvis. He also suffered rib fractures on the right side, a collapsed right lung, and a closed head injury.

[¶4] Mr. Vandre was given critical care at the Pinedale Medical Clinic and then transported by helicopter to the Eastern Idaho Regional Medical Center. He was discharged several weeks later on October 3, 2007, with his attending physician, Dr. Brad D. Smith, commenting as follows on Mr. Vandre's hospital course and discharge:

This 48-year-old white male was admitted through the Emergency Room on 08/23/2007, status post an industrial accident where the patient was working on an asphalt machine and was accidentally pulled into the asphalt machine by his right lower extremity. He was treated at the scene and taken to the Pinedale Clinic where initial stabilization attempts were made. The patient was then transported via helicopter to Eastern Idaho Regional Medical Center. His initial resuscitation included multiple packed red blood cell transfusions as well as an emergent trip to the Operating Room. He had closure of a scalp laceration, placement of right chest tube, and completion of his traumatic amputation. Postoperatively, the patient stabilized relatively quickly. He had been treated with mechanical ventilation, intravenous fluids, and electrolytes as well as pain medication and antibiotics as well as right tube thoracostomy. Within a few days, he was able to be extubated, but required a trip to the Operating Room for debridement and closure of his right lower extremity stump as well as placement of a wound vac. Subsequently, his right lung was almost completely expanded and his right chest tube was removed, however, very soon he had a recollapse of his right lung requiring replacement of right chest tube. The patient had a persistent air leak and developed a fluid collection in the base of the right lung. Cardiovascular and thoracic consultation was obtained. It was felt that he should undergo decortication of the right pleural cavity. This was performed by Dr. Denyer. Unfortunately, the majority of the patient's hospitalization was due to the fact that he had a persistent air leak for several weeks postoperatively and required ongoing hospitalization for monitoring of his chest tubes by both cardiovascular and thoracic surgery and myself. The patient had demonstrated steady progress in terms of his physical therapy and ability to ambulate and was also seen by a prosthetist who initiated the process for fitting him for a prosthesis. After several weeks, his air leak finally stopped and his chest tubes were able to be removed. His recovery was obviously compounded by his significant chronic obstructive pulmonary disease and history of tobacco abuse. The patient was ultimately discharged on 10/03/2007. We arranged for home health in Torrington, Wyoming for ongoing wound care and follow-up. Further instructions were obtained from Dr. West regarding the patient's right lower extremity stump wound care. The patient is maintained on home O2 at 1-2 liters per nasal cannula which he was on prior to his hospitalization. . . .

[¶5] Before Mr. Vandre's accident, his primary care physician was Dr. Paul G. Lehmitz. Among the conditions for which Dr. Lehmitz treated Mr. Vandre before his accident was chronic COPD, which is "basically an air trapping in the lungs, an inability to move air out very well, somewhat similar to asthma except that asthma is more readily reversible." A January 2007 respiratory analysis showed Mr. Vandre's COPD to be moderate to severe with Mr. Vandre's "degree of functional impairment" rated as "severe."

[¶6] In January 2007, Mr. Vandre was prescribed an Albuterol inhaler and "Oxygen 1.5 liters at night." In a May 25, 2007 record, Mr. Vandre's prescription for oxygen remained the same, and Dr. Lehmitz noted that he strongly encouraged Mr. Vandre to "use oxygen all of the time and stop smoking." In a July 31, 2007 note, a few weeks before the work accident, Mr. Vandre's prescription for oxygen again remained at 1.5 liters at night, and Dr. Lehmitz again urged Mr. Vandre to stop smoking.

[¶7] Dr. Lehmitz saw Mr. Vandre twice after his accident and discharge from Eastern Idaho Regional Medical Center. On November 5, 2007, Mr. Vandre began seeing Dr. Millard Todd Berry as his primary care physician, and Dr. Berry remains Mr. Vandre's primary care physician.

[¶8] Since Mr. Vandre's accident, he has continued to be treated for his COPD and pain associated with phantom limb syndrome. His continuing treatments have him on numerous medications, including prescriptions for oxygen, inhalers, and pain medications. Mr. Vandre has also been treated with Cipro for recurring right side lung infections, which his medical records attribute to the damage sustained in his 2007 work accident. Mr. Vandre's medical records also note the onset of depression in 2008, with a prescription for Zyprexa being added to his medications in January 2011. The Zyprexa was prescribed for depression and to assist with Mr. Vandre's weight, which on that date was measured at 119 pounds (on a just under six-foot frame).

[¶9] In 2008, Mr. Vandre was diagnosed with sleep apnea, and was prescribed use of a CPAP device with an oxygen bleed. Dr. Berry explained:

Q. What's a CPAP, at night?
A. It's Continuous Positive Airway Pressure.
We use it to prop open the upper airways, the softer tissues, when people have sleep apnea, so that they don't stop breathing because of the obstruction from the soft tissues when they fall into deep sleep.
Q. Okay. What's the cause of sleep apnea?
A. It's varied.
Q. What are some of the causes?
A. Some people are just predisposed to it because of their physical build. Heavier people with thicker necks will tend to get it.
Medications frequently are a cause, especially if they are sedating medications.
Q. Do you have any indication in your treatment of Mr. Vandre that medications that he's taken can result – have resulted in the sleep apnea?
A. Very likely. I would have to look over the sleep study report. Frequently there are comments in there based on the structure of the sleep – or the sleep apnea that they diagnose him with.
Q. In the impression section, about two-thirds of the way down, it says – well, what is a polysomnograph report? What do they do to get that?
A. Measure your sleep waves during your sleep, to see what stages of sleep you are even going into, and to see really what the sleep architecture is.
Sometimes you can delineate if you have medication effects or even as far as vitamin deficiencies.
If you drop into deeper sleep, if you tend to stop breathing they can delineate if you have sleep apnea, or how severe it is, or really which kind it is.
Q. Okay. And then it goes on to say that he has significant baseline hypoxemia?
A. Uh-huh.
Q. And that that hypoxemia could be a result of the sedative or narcotic administration.
A. Yes.
Q. Okay. Do you think it could be or it probably is?
A. In my opinion, I would say probably is.

[¶10] Also in 2008, around the same time that Mr. Vandre was diagnosed with sleep apnea, his medical records note that his frontal lobe damage from his head injury is "causing troubles." Mr. Vandre was experiencing difficulty with falling and seizure-like activity. A July 16, 2008 report from Dr. Joseph J. LoPresti, a neurologist, included the following comment:

The patient will be obtaining a CPAP mask in order to prevent oxygen desaturations at night. Frankly the central apneas may be due to the large amount of medication he is on right now. There may be some interactions which are causing him to have respiratory compromise at night. Ativan at bedtime is not helpful in this case and should be eliminated. Medications at bedtime especially should be lowered. I will leave this up to Dr. Berry at this time. We will make some more suggestions after we get the results of these tests. This is quite a complicated issue, but a lot of the patient's difficulties may be related to medication effect.

[¶11] Mr. Vandre's 2012 medical records show that he continued to be treated for COPD, phantom limb syndrome, seizure activity, and sleep apnea, and that he remained on a number of prescribed treatments, including pain medications and CPAP with oxygen bleed. On March 7, 2012, Dr. Berry wrote a letter addressed "To Whom It May Concern, " which stated:

Harold never was found to be in need of nighttime oxygen nor was he found to be in need of any kind of pressure support while sleeping, until he had his accident 08/27/2007, whereupon he had a traumatic high-transfemoral amputation in a work-related injury. It may be that some of his medications are contributing to his state of sleep apnea and hypoxemia, but he would not be on those medications had he not had the accident. Please consider this when evaluating his obvious need for nighttime pressure support with oxygen when reviewing his case.

[¶12] On April 3, 2012, Dr. Berry saw Mr. Vandre for an office visit and included the following comment in his treatment notes:

Letter was written in early March as to the reasoning behind his lung problems. He does have COPD which I believe is going to be long standing but I believe everything has been moved up regarding oxygen therapy and all of his other breathing problems. I believe that he would not be on all of his breathing therapies that he has now if it had not been for the accident that he had when he had it.

B. Proceedings Below

[¶13] Shortly after Mr. Vandre's work accident in 2007, his employer filed an injury report with the Wyoming Workers' Compensation Division (Division), and the Division thereafter issued a final determination opening Mr. Vandre's case. The final determination identified the covered body parts as: right leg, ribs, right head, right low back (lumbar), and left foot, toe(s) or ankle. The record indicates that at some point Mr. Vandre was determined to be eligible for permanent total disability (PTD) benefits, but it does not otherwise detail the benefits paid for treatment of Mr. Vandre's work injury up until the present dispute.

[¶14] The present dispute stems from four final determinations issued by the Division denying coverage for medical treatments between March 1, 2012 and May 11, 2012. The amounts at issue in those final determinations are: $475.00; $103.00; $65.00; and $350.00. The bills and/or invoices for those treatments were not made a part of the record, but correspondence from Mr. Vandre's attorney to the Division indicates that the expenses are for oxygen, equipment related to the oxygen administration, and prescription inhalers. Each final determination informed Mr. Vandre: "Treatment of chronic obstructive pulmonary disease is disallowed, as it is unrelated to the work injury of August 23, 2007, to the right lower leg, ribs, head, low back, left foot, or chest."

[¶15] On May 18, 2012, Mr. Vandre requested a hearing on the denial of benefits for the respiratory treatments, and on June 19, 2012, the Division referred the matter to the OAH for an evidentiary hearing. On May 14, 2013, the OAH held a contested case hearing, and it reconvened on June 27, 2013, for receipt of the deposition testimony of Mr. Vandre's treating physician and for presentation of closing arguments. On July 19, 2013, the OAH issued its Findings of Fact, Conclusions of Law, and Order upholding the Division's final determinations. In so ruling, the OAH found and concluded that Mr. Vandre's COPD was a preexisting condition, that "[Mr.] Vandre's worsening COPD is a self-inflicted condition caused by his heavy smoking over many years, " and that Mr. Vandre "did not prove the COPD symptoms he complained of in May 2012 were causally connected to his work-related injury of August 23, 2007." [1]

[¶16] Mr. Vandre filed a petition for review, and the district court affirmed, concluding that the OAH decision was supported by substantial evidence. Vandre thereafter filed a timely notice of appeal to this Court.


[¶17] This Court reviews a district court's decision on an administrative decision as though the case came directly from the administrative agency. Stevens v. State ex rel. Dep't of Workforce Servs., Workers' Safety & Comp. Div., 2014 WY 153, ¶ 30, 338 P.3d 921, 928 (Wyo. 2014) (citing Hirsch v. State ex rel. Wyo. Workers' Safety & Comp. Div. (In re Worker's Comp. Claim), 2014 WY 61, ¶ 33, 323 P.3d 1107, 1115 (Wyo. 2014)). Our review is governed by the Wyoming Administrative Procedure Act, which provides:

(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 ...

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