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In re Workers' Compensation Claim of Hart

Supreme Court of Wyoming

September 7, 2018

IN THE MATTER OF THE WORKERS' COMPENSATION CLAIM OF: PETE HART, by and through his Personal Representative, Mona Hart, Appellant (Petitioner),

          Appeal from the District Court of Sweetwater County The Honorable Richard L. Lavery, Judge

          Ethelyn (Lynn) Boak, Cheyenne, Wyoming. Representing Appellant

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

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

          KAUTZ, Justice.

         [¶1] In 2014, Pete Hart[1] 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.


         [¶2] 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 disability]?


         [¶3] 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.

         [¶4] 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.

         [¶5] 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."

         [¶6] 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, sciatica."[2]

         [¶7] 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).

         [¶8] 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 doctrine.[3]

         [¶9] 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.

         [¶10] 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."

         [¶11] 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.

         [¶12] 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.


         Did the district court appropriately remand the claim to the Medical Commission?[4]

         [¶13] 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 proceedings.

         [¶14] 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 inquiry.

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)).

         [¶15] 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 proceedings. Id.

         [¶16] 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 ...

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