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In re Worker's Compensation Claim of Coggins

Supreme Court of Wyoming

July 10, 2018

IN THE MATTER OF THE WORKER'S COMPENSATION CLAIM OF: TROY C. COGGINS, Appellant (Petitioner),
v.
STATE OF WYOMING, ex rel., DEPARTMENT OF WORKFORCE SERVICES, WORKERS' COMPENSATION DIVISION, Appellee (Respondent).

          Appeal from the District Court of Sheridan County The Honorable John G. Fenn, Judge

          Representing Appellant: Kenneth DeCock, Sheridan, Wyoming.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; Daniel E. White, Deputy Attorney General; J.C. DeMers, Senior Assistant Attorney General.

          Before DAVIS, C.J., and BURKE [*], FOX, KAUTZ, and BOOMGAARDEN, JJ.

          KAUTZ, JUSTICE.

         [¶1] After a contested case hearing, the Office of Administrative Hearings (OAH) concluded that Appellee Wyoming Workers' Compensation Division (Division) had properly terminated Appellant Troy C. Coggins' temporary total disability (TTD) benefits because he had reached maximum medical improvement (MMI) and suffered an ascertainable loss. The district court affirmed the OAH decision, and Mr. Coggins appealed to this Court. We affirm.

         ISSUE

         [¶2] Mr. Coggins presents the following issue for our review:

A. Whether the Office of Administrative Hearings['] . . . determination that [Mr.] Coggins had reached MMI and no longer qualified for TTD benefits conforms to current law and is supported by substantial evidence.

         FACTS

         [¶3] Mr. Coggins injured his back on June 26, 2012, while working as a truck driver for Mullinax Concrete Services. He filed a report of injury, and the Division found his injury compensable. Mr. Coggins was treated conservatively with pain medication and physical therapy and went back to work about a week after the accident. Mr. Coggins continued to work until the end of 2014 when pain in his lower back and pain radiating down his right leg became unbearable. He stopped working and began receiving TTD benefits. An MRI showed a right paracentral protrusion at L5-S1 with a tear at L5 and a minimal disc bulge at L4-L5.

         [¶4] James Ulibarri, M.D. performed an L5-S1 discectomy on June 17, 2015. Mr. Coggins continued to have radicular pain down his right leg after the surgery. Electrodiagnostic studies confirmed he was suffering from radiculopathy. Radiculopathy is defined as:

significant alteration in the function of a single or multiple nerve roots and is usually caused by mechanical or chemical irritation of one or several nerves. The diagnosis requires clinical findings including specific dermatomal distribution of pain, numbness, and/or parasthesias. Subjective reports of sensory changes are more difficult to assess; therefore, these complaints should be consistent and supported by other findings of radiculopathy. There may be associated motor weakness and loss of reflex. A root tension sign is usually positive. The identification of a condition that may be associated with radiculopathy (such as a herniated disk) on an imaging study is not sufficient to make a diagnosis of radiculopathy; clinical findings must correlate with radiographic findings in order to be considered.

Hurt v. State of Wyo., ex rel. Dep't of Workforce Servs., Workers' Safety & Comp. Div., 2015 WY 106, ¶ 19, 355 P.3d 375, 381 (Wyo. 2015) (quoting the AMA Guides to Evaluation of Permanent Impairment, Sixth Edition). Tests showed Mr. Coggins' S1 nerve root was swollen and was likely causing his radicular pain.

         [¶5] Dr. Ulibarri recommended Mr. Coggins undergo a trial with a spinal cord stimulator to see if that would help his radicular pain. Although the parties in this case do not direct us to a description of a spinal cord stimulator in the record, we explained its function in Morris v. State ex rel. Dep't of Workforce Servs., Workers' Comp. Div., 2017 WY 119, ¶ 10, 403 P.3d 980, 983 (Wyo. 2017): "[A] spinal cord stimulator is a mechanical device with an electrical lead that is placed along the spinal cord. The electrical impulse inhibits the amount of pain signal that reaches the brain. In other words, it tricks the nervous system into not recognizing the pain."

         [¶6] Dr. Ulibarri referred Mr. Coggins to Bradley McPherson, M.D. for a spinal cord stimulator trial. Dr. McPherson stated that the purpose of a spinal cord stimulator would be to decrease Mr. Coggins' pain in his right lower extremity. Before a spinal cord stimulator trial could be approved, Mr. Coggins had to meet various requirements, including numerous tests, a psychiatric evaluation and counseling. Mr. Coggins testified that he had complied with the requirements, but, at the time of the contested case hearing, the Division still had not preauthorized the procedure.

         [¶7] In May 2016, the Division sent a form to Dr. Ulibarri asking whether he believed Mr. Coggins had reached MMI and had suffered a permanent partial impairment (PPI) as a result of the work injury. Dr. Ulibarri responded that Mr. Coggins had reached MMI on January 7, 2016, and that he had a PPI. The Division, therefore, referred Mr. Coggins to Scott Johnston, M.D. for an independent medical evaluation and permanent impairment rating. Dr. Johnston reviewed Mr. Coggins' medical records and examined him on August 10, 2016. He concluded Mr. Coggins had reached MMI because there had been "no significant change in his symptoms in the past several months." Dr. Johnston assigned Mr. Coggins a permanent impairment rating of 14% of the whole person. The rating took into account Mr. Coggins' ongoing radiculopathy. Mr. Coggins disagreed with the rating and the Division referred him to Ricardo Nieves, M.D. for a second opinion. Like Dr. Johnston, Dr. Nieves stated that Mr. Coggins' was at MMI and rated him as having a 14% of the whole person impairment. Dr. Nieves also stated that Mr. Coggins may benefit from a spinal cord stimulator, but it likely would not change his impairment rating.

          [¶8] After Mr. Coggins was rated for PPI, the Division issued a final determination terminating his TTD benefits, effective August 15, 2016. He objected to the final determination and requested a hearing. Mr. Coggins stated that he was unable to work because his injury had caused permanent nerve damage. The OAH held a hearing and concluded the Division had properly ceased paying TTD benefits because Mr. Coggins had reached MMI and had an ascertainable loss. He filed a petition for judicial review of the OAH decision with the district court, and it affirmed the agency decision. Mr. Coggins filed a timely notice of appeal to this Court.

         STANDARD OF REVIEW

         [¶9] Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2017) 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 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 agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
(B)Contrary to constitutional right, power, privilege or immunity;
(C) In excess of statutory jurisdiction, authority or limitations or ...

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