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Hurt v. State ex rel. Dep't of Workforce Servs.

Supreme Court of Wyoming

August 14, 2015

IN THE MATTER OF THE WORKER'S COMPENSATION CLAIM OF MICHAEL D. HURT, AN EMPLOYEE OF TILTON READY MIX, INC.: MICHAEL D. HURT, Appellant (Petitioner),
v.
STATE OF WYOMING, ex rel., DEPARTMENT OF WORKFORCE SERVICES, WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent)

Appeal from the District Court of Laramie County. The Honorable Thomas T.C. Campbell, Judge.

Representing Appellant: Bernard Q. Phelan of the Phelan Law Firm, Cheyenne, Wyoming.

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

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

OPINION

Page 376

KITE, Justice.

[¶1] The Medical Commission sustained the Wyoming Workers' Safety and Compensation Division's (Division) permanent partial impairment (PPI) rating of Michael D. Hurt's lumbar spine condition. The Medical Commission ruled Mr. Hurt failed to prove he was entitled to a PPI rating greater than the 9% whole body rating assigned by the Division, and the district court upheld the Medical

Page 377

Commission's decision. We conclude the Medical Commission's decision is supported by substantial evidence and, therefore, affirm.

ISSUE

[¶2] The issue for our review is:

1. Was the Medical Commission's decision that Mr. Hurt did not prove he was entitled to a higher impairment rating under the AMA Guides to the Evaluation of Physical Impairment supported by substantial evidence and otherwise in accordance with the law?

FACTS

[¶3] Mr. Hurt worked as a concrete truck driver for Tilton Ready Mix, Inc. On September 7, 2006, he was helping unload concrete from a truck when he slipped on a large hose and fell onto his back and buttocks. Steven Beer, M.D. performed surgery on Mr. Hurt's back on December 19, 2006, including an L4-5 and L5-S1 interbody fusion, an L3 to S1 posterior instrumentation using various types of hardware, and an L3-S1 intertransverse fusion using autologous bone.

[¶4] Although Mr. Hurt generally had good results from the first surgery, he received permanent partial impairment (PPI) benefits as a result of the work-related injury. On September 15, 2008, Michael Kaplan, M.D. rated Mr. Hurt, using the AMA Guides to the Evaluation of Permanent Impairment (6th ed. 2008), as having 7% whole body impairment. Mr. Hurt accepted the Division's award of PPI benefits based upon that rating.

[¶5] Over time, Mr. Hurt began to experience additional problems with his back, including pain, weakness and numbness. On August 31, 2010, Dr. Beer performed a second surgery on Mr. Hurt's back, removing the hardware installed in the first surgery and extending the lumbar spine fusion to L2 and L3. Mr. Hurt's back was, therefore, fused from L2 to S1. The second surgery improved his condition, but he could not return to work.

[¶6] On August 2, 2011, Dr. Kaplan performed a second PPI rating. He concluded Mr. Hurt's impairment placed him in Class 1 for Motion Segment Lesions and assigned an impairment rating of 9% of the whole body, a 2% increase over the previous rating and award. On September 26, 2011, Mr. Hurt was evaluated in Dr. Beer's office by physician assistant Andy Beguin. The physician assistant placed Mr. Hurt in Class 4 for Motion Segment Lesions and assigned him a 25% whole body PPI rating. Given the disparity between the two ratings, the Division asked a third physician, Anne MacGuire, M.D., to review them.[1] She did not examine Mr. Hurt; however, she did review his medical records and the rating reports from Dr. Kaplan and Dr. Beer's office under the AMA Guides. Although Dr. MacGuire agreed with Dr. Kaplan that Mr. Hurt belonged in Class 1, she stated that he was only entitled to an 8% PPI rating.

[¶7] After considering the three rating reports, the Division issued a final determination assigning Mr. Hurt a 9% impairment rating. He objected and the Division referred the matter to the Medical Commission for a contested case hearing. Mr. Hurt was the only witness to testify at the hearing, but the evidence included his medical records and the deposition testimony of Dr. Beer. The Medical Commission ruled that Mr. Hurt had not met his burden of establishing he was entitled to a PPI rating higher than the 9% assigned by the Division.

[¶8] Mr. Hurt petitioned the district court for review of the Medical Commission decision. The district court affirmed, and Mr. Hurt appealed to this Court.

STANDARD OF REVIEW

[¶9] When an appeal is taken from a district court's review of an administrative agency's decision, we examine the case as if

Page 378

it came directly from the agency, giving no deference to the district court's decision. Guerrero v. State ex rel. Wyo. Dep't of Workforce Servs., Workers' Comp. Div., 2015 WY 88, ¶ 11, 352 P.3d 262, 265 (Wyo. 2015). See also Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 8, 188 P.3d 554, 557 (Wyo. 2008). Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2015) governs judicial review of administrative decisions:

(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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