IN THE MATTER OF THE WORKERS' COMPENSATION CLAIM OF: PETE HART, by and through his Personal Representative, Mona Hart, Appellant (Petitioner),
STATE OF WYOMING, ex rel., DEPARTMENT OF WORKFORCE SERVICES, WORKERS' COMPENSATION DIVISION, Appellee (Respondent).
from the District Court of Sweetwater County The Honorable
Richard L. Lavery, Judge
Ethelyn (Lynn) Boak, Cheyenne, Wyoming. Representing
K. Michael, Wyoming Attorney General; Daniel E. White, Deputy
Attorney General; Michael J. Finn, Senior Assistant Attorney
General. Representing Appellee
DAVIS, C.J., and BURKE [*] , FOX, KAUTZ, and BOOMGAARDEN, JJ.
In 2014, Pete Hart sought permanent total disability benefits
for a back injury he sustained at work in 2005. The
Workers' Compensation Division (the Division) denied
benefits, and the Medical Commission Hearing Panel (Medical
Commission) upheld the Division's denial of benefits
after a contested case hearing. We affirm.
Mr. Hart raises two issues in this appeal:
I. The Medical Commission's Findings of Fact, Conclusions
of Law, and Order was vacated and remanded for further
proceedings by the District Court. The Supplemental Findings
of Fact, Conclusions of Law, and Order came to the same
conclusion and this time was affirmed by the District Court,
although the [Medical] Commission did not take any additional
evidence. Was it proper to reverse and remand, rather than
simply reversing and awarding benefits, and did the
supplemental order cure the inadequacies identified by the
District Court in the original Order?
II. Permanent total disability is "the loss of use of
the body as a whole or any permanent injury . . . which . . .
incapacitates the employee from performing work at any
gainful occupation for which he is reasonably suited . . .
." Pete Hart injured his back in a work accident. He
continued to work but his back pain increased throughout
surgery, steroid injections and pain medications. He was
diagnosed with ALS [amyotrophic lateral sclerosis] two months
before he was certified for [permanent total disability.] Was
the work injury the cause of [his permanent total
On August 24, 2005, Mr. Hart injured his back while working
at Solvay Chemicals, Inc. (Solvay). The Division opened a
case and thereafter approved temporary disability benefits.
In April 2006, Mr. Hart was evaluated for an impairment
rating by Dr. Michael Kaplan. Dr. Kaplan recognized that Mr.
Hart had returned to work by this time and concluded he had a
total whole person impairment rating of 12%. On May 17, 2006,
the Division approved Mr. Hart's request for permanent
partial impairment benefits.
Throughout the years after his injury, Mr. Hart received
treatment for his continuing back pain from Dr. Raymond
Bedell. His treatment included steroid injections and the use
of pain medications. Despite his back pain, Mr. Hart
continued to work at Solvay as a boiler operator. Mr. Hart
explained that Solvay's policy did not allow him to take
his pain medication while he was working, so he would wait to
take it until after his shift had ended.
In July 2013, Mr. Hart experienced a swollen tongue and
slurred speech while at work and was taken from Solvay to the
emergency room at Memorial Hospital of Sweetwater County via
ambulance. While the records from the emergency room visit
are not in the record, it appears the emergency room staff
was unable to determine the cause of Mr. Hart's
condition. However, for reasons undisclosed by the record,
Mr. Hart attributed his condition to a reaction to one of his
pain medications (Lortab). Mr. Hart never returned to work.
Mrs. Hart testified her husband was told by his supervisor at
Solvay that he was not allowed to return to work until he was
"off pain medication."
Mr. Hart continued his back treatment with Dr. Bedell, and in
October 2013, Dr. Steven Ringel at the University of Colorado
Hospital diagnosed Mr. Hart with amyotrophic lateral
sclerosis (ALS). On January 21, 2014, Mr. Hart submitted an
application for permanent total disability benefits claiming
the back injury he sustained in 2005 prevented him from
working in his current position at Solvay. He claimed he
could not work because his ALS increased the pain associated
with his back injury and he must continuously take pain
medication. He explained Solvay's policy prevented him
from taking pain medication before or during his shift. Mr.
Hart attached a certification from Dr. Bedell that identified
Mr. Hart's physical complaints that prevented him from
returning to work as: "ALS, failed back, DDD,
After receiving his application, the Division referred Mr.
Hart to Dr. Kaplan for an independent medical examination.
Dr. Kaplan noted that at the time of the examination (May
2014), Mr. Hart suffered a right foot drop and drooling, had
lost his ability to speak, and was using a feeding tube, all
of which were attributable to ALS. Dr. Kaplan concluded:
"Mr. Hart's current disability status, from the
standpoint of an inability to return to his previous level of
participation in the work setting, stems more from the recent
development of ALS than from injury residual." Dr.
Kaplan further stated: "In my opinion, if it were not
for the ALS, [Mr. Hart] may have been able to manage his
normal work duties, with chronic pain medications and
injections continuing, as that was a successful regimen /
pattern over the years." On June 10, 2014, the Division
relied on Dr. Kaplan's report and denied Mr. Hart's
request for permanent total disability benefits, determining
Mr. Hart could not return to work because of ALS and not his
back injury. Mr. Hart objected to the Division's
determination. The Division referred the matter to the
Medical Commission under Wyo. Stat. Ann. §
27-14-601(k)(v) (LexisNexis 2017).
Mr. Hart and Dr. Bedell both died before the Medical
Commission could conduct a hearing on this matter.
Unfortunately, they were not deposed before they died. At the
hearing, Mrs. Hart testified about her husband's back
injury in 2005, his subsequent treatment, and the fact that
he had thereafter returned to work. However, Mrs. Hart did
not know how often or when Mr. Hart would use his pain
medications and she did not know if he used them at work.
Mrs. Hart also testified Dr. Bedell had suggested that Mr.
Hart apply for permanent total disability benefits due to his
back injury approximately two to three years before he
actually submitted his application. Based upon Mrs.
Hart's testimony and the medical records submitted to the
Medical Commission, Mr. Hart argued he was entitled to total
permanent disability benefits under the odd lot
Dr. Kaplan did not testify at the hearing, but Mr. Hart
submitted the transcript of Dr. Kaplan's deposition taken
a year earlier. Dr. Kaplan testified consistently with the
report from his 2014 independent medical examination of Mr.
Hart. He agreed that Mr. Hart was unable to return to his
position at Solvay but stated the reason for that permanent
incapacitation was due to ALS and not the back injury. He
also testified there is no correlation between a back injury
and a progressive nerve degenerative disease like ALS.
After considering Mrs. Hart's testimony, Dr. Kaplan's
deposition and report, and the medical records, the Medical
Commission concluded Mr. Hart had not established his
inability to return to work was related to his back injury.
The Medical Commission stated it gave great weight to Dr.
Kaplan's independent medical examination, but also found
Mrs. Hart's testimony credible. It also noted that
certain aspects of Dr. Bedell's certification could not
be clarified due to his death. Mr. Hart appealed the decision
to the district court. The court concluded substantial
evidence did not exist to support the Medical
Commission's decision to give great weight to Dr.
Kaplan's opinion because it was speculative. The court
also determined substantial evidence did not support the
Medical Commission's treatment of Mrs. Hart's
testimony. While the Medical Commission found her testimony
credible, it did not appear to consider her testimony when it
analyzed the issues. The district court opted to remand the
case in lieu of simply reversing the decision because "a
court of review risks missing material evidence in the record
if it decides the sufficiency of the evidence in the absence
of full and complete findings by the agency which are argued
in the parties' briefs on appeal."
On remand, the Medical Commission chose to simply hear
further argument from the parties instead of receiving any
additional evidence. In its subsequent order, the Medical
Commission reached the same conclusion-Mr. Hart failed to
prove by a preponderance of the evidence that his
work-related back injury from 2005 was the reason he was
unable to continue working after July 2013. However, the
Medical Commission provided far more specific details
regarding its conclusions in its order after the remand than
it did in its initial order. The Medical Commission explained
that, although Dr. Bedell's certification, which was
given some months after Mr. Hart's ALS diagnosis,
included "failed back" as one of his listed
disabilities, the medical records did not establish that Dr.
Bedell's assessment of Mr. Hart's back injury ever
changed. The Medical Commission determined Dr. Kaplan's
evaluation was more complete, comprehensive and objective,
and afforded it greater weight than Dr. Bedell's
certification. Finally, the Medical Commission explained
that, while it found Mrs. Hart's testimony credible, it
was general in nature and lacked specificity. For example,
she testified that Dr. Bedell had spoken to Mr. Hart about
applying for permanent total disability benefits, but she did
not know when the conversation occurred. Further, she did not
know if Mr. Hart had taken his pain medication before his
emergency room visit in July 2013, and she did not know his
normal medication routine.
Mr. Hart again appealed the Medical Commission's decision
to the district court. The court determined that the Medical
Commission appropriately considered Mrs. Hart's testimony
in the second order and properly concluded that some of her
relevant testimony was general in nature and lacked
specificity. The district court continued to express concern
with the Medical Commission's reliance on Dr.
Kaplan's report and deposition, which the court
maintained was speculative. However, it concluded Dr.
Kaplan's opinions were irrelevant because the Medical
Commission had also determined that Mr. Hart had failed to
carry his burden of demonstrating he was disabled by his
work-related injury. The district court concluded the medical
records did not corroborate Mr. Hart's claim that his
back condition worsened over time and there were no medical
records that would support Mr. Hart's belief that his
pain medication caused the emergency room visit. Because the
Medical Commission's decision was supported by the
evidence, the district court affirmed the decision. Mr. Hart
filed a timely notice of appeal.
the district court appropriately remand the claim to the
Mr. Hart argues the district court erred when it initially
remanded his claim to the Medical Commission for further
findings instead of reversing the decision and awarding
benefits. Mr. Hart asserts that the district court's
review of the Medical Commission's first order is similar
to what occurred in Rodgers v. State ex rel. Wyo.
Workers' Safety & Comp. Div., 2006 WY 65, 135
P.3d 568 (Wyo. 2006). However, a review of the applicable
rules of appellate procedure and Rodgers leads to
the conclusion that the district court appropriately remanded
Mr. Hart's claim to the Medical Commission for further
Wyoming Rule of Appellate Procedure 12.09 governs the extent
of a district court's review of an administrative action
and subsection (f) states: "The district court's
judgment shall be in the form of an order affirming,
reversing, vacating, remanding or modifying the order for
errors appearing on the record." W.R.A.P. 12.09(f). We
have stated that generally, if there is a problem with the
agency's action, the proper course is to remand the
matter to the agency for further consideration:
If the record before the agency does not support the agency
action, if the agency has not considered all relevant
factors, or if the reviewing court simply cannot evaluate the
challenged agency action on the basis of the record before
it, the proper course, except in rare circumstances, is to
remand to the agency for additional investigation or
explanation. The reviewing court is not generally empowered
to conduct a de novo inquiry into the matter being
reviewed and to reach its own conclusions based on such an
Decker v. State ex rel. Wyo. Med. Comm'n, 2005
WY 160, ¶ 36, 124 P.3d 686, 697 (Wyo. 2005) (quoting
Bush v. State ex rel. Wyo. Workers' Comp. Div.,
2005 WY 120, ¶ 12, 120 P.3d 176, 180, 181 (Wyo. 2005)).
We recognized this general rule in Rodgers, but
determined it was appropriate under the narrow circumstances
found in that case to reverse the matter and direct the
Medical Commission to enter an order awarding benefits.
Rodgers, ¶ 2, 135 P.3d at 571. In
Rodgers, the Medical Commission determined a medical
expert's opinion was persuasive but misstated what the
opinion was. Based on that erroneous understanding of the
opinion, the Medical Commission denied benefits.
Id., ¶ 51, 135 P.3d at 585. On review, we
agreed the expert's opinion was persuasive, but
determined the claimant was entitled to benefits when the
expert's actual opinion was considered. Id.,
¶ 52, 135 P.3d at 585. Because this Court simply gave
effect to the expert's opinion and did not question the
Medical Commission's credibility determinations or the
weight it attributed to any piece of evidence, we determined
the matter need not be remanded for further agency
The circumstances from Rodgers are not present here.
The district court found the Medical Commission failed to
consider Mrs. Hart's testimony in its determination, even
though it considered her testimony credible. Further, the
Medical Commission failed to consider the strength of, and
reasons for, Dr. Kaplan's opinions before assigning great
weight to his evaluation. Therefore, the Medical Commission
needed to fully consider all of the evidence presented before
the reviewing court could fairly review the issues. The
district court recognized this when it stated: "The
Court remands in lieu of reversal because a court of review
risks missing material evidence in the record if it decides
the sufficiency of the evidence in the absence of full and
complete findings by the agency which are argued in the
parties' briefs on appeal." To do otherwise would
result in a de novo review by the district court
regarding witnesses' credibility and the weight of the
evidence-a review that has been repeatedly ...