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

395 P.3d 1095

In the Matter of the Worker's Compensation Claim of: Jeffrey BAKER, Appellant (Petitioner),

v.STATE of Wyoming, EX REL., DEPARTMENT OF WORKFORCE SERVICES, WORKERS' COMPENSATION DIVISION, Appellee (Respondent).

S-16-0209

Supreme Court of Wyoming.

May 22, 2017

Representing Appellant: Mark D. Sullivan, Mark D. Sullivan, P.C., Wilson, Wyoming.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; Michael J. Finn, Senior Assistant Attorney General; Benjamin E. Fischer, Assistant Attorney General.

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

FOX, Justice.

[¶1] Jeffrey Baker injured his right shoulder at work, and his shoulder surgery was covered by the Wyoming Workers' Compensation Division (Division). Mr. Baker later requested temporary total disability benefits related to a neck injury he claimed occurred with the shoulder injury. The Division denied his request. On review, the Medical Commission Hearing Panel (Commission) denied his claim on the grounds that he failed to prove a causal relationship between his neck injury and the work-related accident. The district court upheld the Commission's decision and Mr. Baker appealed. We affirm.

ISSUES

[¶2] We rephrase the issues as:

1. Was the Commission's decision that Mr. Baker did not meet his burden of establishing the causal relationship between his neck injury and his work-related accident supported by substantial evidence?

2. Was the Commission's decision arbitrary and capricious?

FACTS

[¶3] Mr. Baker worked as a laborer for Van Ewing Construction, Inc. when he was injured while carrying a several-hundred-pound log. He went to the Campbell County Memorial Hospital (CCMH) walk-in clinic complaining of right-shoulder pain, numbness, and tingling in his arm. Shoulder x-rays taken at CCMH on the date of injury were negative for a fracture or other abnormality, and Mr. Baker was prescribed pain medication and a sling for his right arm. Due to continued pain in his right shoulder, Mr. Baker saw Joseph Allegretto, M.D., an orthopedist. Mr. Baker complained of "moderate to severe" "right shoulder pain in the area of the a.c. joint." Dr. Allegretto performed a physical examination, including an examination of Mr. Baker's head and neck, and reported that the head and neck area was normal and not producing injury or damage. Dr. Allegretto ordered an MRI of the right shoulder, and prescribed physical therapy.

[¶4] Mr. Baker began physical therapy on December 12, 2013, and at his January 6, 2014 appointment with Dr. Allegretto, reported minimal relief of his right-shoulder pain, so Dr. Allegretto performed a corticosteroid injection into the subacromial space of Mr. Baker's shoulder, which also provided little relief. Mr. Baker then underwent an electrodiagnostic (EMG) study to determine whether his continued pain originated from carpal tunnel syndrome or a pinched nerve in the neck. The EMG study showed evidence of carpal tunnel syndrome, but neither a pinched nerve in the neck, nor right cervical radiculopathy or plexopathy. As a result, Mark Murphy, M.D., an orthopedic surgeon, performed a right shoulder arthroscopic Mumford distal clavicle excision, right carpal tunnel release, and right shoulder arthroscopic subacromial decompression, which was covered by the Division.

[¶5] Mr. Baker continued to report numbness and tingling in his right arm as well as pain radiating into his right shoulder. A second EMG study found no evidence of right cervical radiculopathy, plexopathy, or entrapment neuropathy, and indicated Mr. Baker's carpal tunnel condition had been repaired. Dr. Murphy then ordered a cervical MRI which showed mild posterior disc bulging at C4-C5, minimal posterior disc bulging at C5-C6, and marked degenerative disc disease with extensive posterior disc bulging at C6-C7. Dr. Murphy referred Mr. Baker to Mahesh Karandikar, M.D., a neurosurgeon, who initially recommended a C4-C7 anterior cervical discectomy and fusion (ACDF). The Division denied Dr. Karandikar's preauthorization request for the C4-C7 ACDF on the basis that the procedure was not related to a work injury. Dr. Karandikar submitted a second preauthorization request to the Division, limiting the surgery to a C6-C7 ACDF. The Division again denied the request because it was not work related. Dr. Karandikar ultimately performed a C5-C7 ACDF on April 30, 2015.¹

[¶6] Prior to the April 30, 2015 ACDF surgery, Mr. Baker requested temporary total disability (TTD) benefits. Dr. Karandikar certified Mr. Baker as temporarily totally disabled between September 23 and November 23, 2014, and designated the disability as related to the cervical spine. The Division denied the benefits, and Mr. Baker objected to the determination and requested a hearing. After an evidentiary hearing, the Commission determined that Mr. Baker had "failed to show by a preponderance of the evidence that his cervical condition was causally related to the work injury on November 4, 2013." The district court affirmed the Commission's ruling, and Mr. Baker timely appealed to this Court.

STANDARD OF REVIEW

[¶7] This Court reviews a district court's decision on an administrative decision as though the case came directly from the administrative agency. Price v. State ex rel. Dep't of Workforce Servs., Workers' Comp. Div. , 2017 WY 16, ¶ 7, 388 P.3d 786, 789 (Wyo.2017). Our review is governed by the Wyoming Administrative Procedure Act (W.A.P.A.), 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:

....(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 accordance with law;

(B) Contrary to constitutional right, power, privilege or immunity;

(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;

(D) Without observance of procedure required by law; or

(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2015). We review an agency's findings of fact by applying the substantial evidence standard. Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Guerrero v. State ex rel., Dep't of Workforce Servs., Workers' Comp. Div. , 2015 WY 88, ¶ 12, 352 P.3d 262, 266 (Wyo.2015) (quoting Bush v. State ex rel. Wyo. Workers' Comp. Div. , 2005 WY 120, ¶ 5, 120 P.3d 176, 179 (Wyo.2005) ). "Findings of fact are supported by substantial evidence if, from the evidence preserved in the record, we can discern a rational premise for those findings." Id. (quoting Kenyon v. State ex rel. Wyo. Workers' Safety & Comp. Div. , 2011 WY 14, ¶ 11, 247 P.3d 845, 849 (Wyo.2011) ).

DISCUSSION

I. Was the Commission's decision that Mr. Baker did not meet his burden of establishing the causal relationship between his neck injury and his work-related accident supported by substantial evidence?

[¶8] Mr. Baker asserts that the Commission's conclusion that he failed to establish a causal connection between his workplace injury and his cervical spine injury was not supported by substantial evidence. He contends that he demonstrated by a preponderance of the evidence that he "simultaneously suffered two injuries on November 4, 2013." Mr. Baker claims that the Commission "ignore[d] entirely" the "ultimate conclusions" of his experts' opinions establishing the causal connection between his neck injury and work-related injury. Mr. Baker designated three experts: Dr. Karandikar, the treating neurosurgeon; Dr. Murphy, the treating orthopaedic surgeon; and Jordan Malkowski, the treating physical therapist. He presented each expert's testimony to the Commission by deposition. The Division designated three experts: Dr. Scott Johnston, M.D.; Dr. Ricardo Nieves, M.D.; and Dr. Paul Ruttle, M.D. The Division presented Dr. Johnston's opinion to the Commission through his written reports, and the opinions of Dr. Nieves and Dr. Ruttle by deposition.

[¶9] The Commission found significant flaws in each of the six experts' opinions. The Commission, as the trier of fact, has the responsibility to "determine relevancy, assign probative value, and ascribe the relevant weight given to the evidence presented." Chavez v. State ex rel. Wyo. Workers' Safety & Comp. Div. , 2009 WY 46, ¶ 18, 204 P.3d 967, 971 (Wyo.2009) (quoting Spletzer v. State ex rel. Wyo. Workers' Safety & Comp. Div. , 2005 WY 90, ¶ 21, 116 P.3d 1103, 1112 (Wyo.2005) ). We will not "re-weigh the evidence or re-determine facts or assess the credibility of witnesses so long as the decision of the hearing examiner is based on relevant evidence which a reasonable mind might accept in support of the agency's conclusions." Spletzer , 2005 WY 90, ¶ 22, 116 P.3d at 1112 (citations and internal quotation marks omitted). It was Mr. Baker's burden to prove, by a preponderance of the evidence, that his cervical spine injury was causally related to his workplace injury. In re Claim of Hood , 2016 WY 104, ¶ 16, 382 P.3d 772, 776 (Wyo.2016). Although all of the experts fell short, the fact that his experts failed to meet that burden was fatal to Mr. Baker's claim, and, applying our standard of review, we will find that reasonable minds could find the evidence adequate to support the Commission's conclusion.

[¶10] Mr. Baker is required to prove a causal connection between his workplace injury and his neck injury to a reasonable degree of medical probability. SeeEaton v. State ex rel. Dep't of Workforce Servs. , ...