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

536 P.3d 224

Jon BRESSLER, Appellant (Petitioner),

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

S-23-0064

Supreme Court of Wyoming.

September 29, 2023

Representing Appellant: Larry B. Jones, Burg, Simpson Eldredge Hersh and Jardine, P.C., Cody, Wyoming.

Representing Appellee: Bridget L. Hill, Attorney General; Mark Klaassen, Deputy Attorney General; Holli J. Welch, Senior Assistant Attorney General.

Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN JJ.

BOOMGAARDEN, Justice.

[¶1] Jon Bressler suffered a work-related injury to his right arm in 2016. As part of his treatment, he routinely received physical therapy. In 2020, the Department of Workforce Services, Workers' Compensation Division (the Division) denied compensating Mr. Bressler for three physical therapy sessions. The Medical Commission (the Commission) upheld the denials after a contested case hearing, finding Mr. Bressler's continued physical therapy was no longer reasonable and necessary medical care for his work-related injury. The district court affirmed. We also affirm.

ISSUE

[¶2] Mr. Bressler raises one issue, which we phrase as:

Whether the Medical Commission's conclusion that Mr. Bressler's continued physical therapy was not reasonable and necessary medical care for his work-related injury is supported by substantial evidence.

FACTS

[¶3] In January 2016, Mr. Bressler was a special education teacher at Fremont County School District # 2. During a school-shooter training, he was physically securing a door when a purported intruder opened it with force, crushing Mr. Bressler's right arm. After he submitted a report of injury, the Division determined Mr. Bressler had sustained a compensable work-related injury to his lower right arm. Mr. Bressler soon after began physical therapy as part of his medical care. One year later, Mr. Bressler's injury caused him to develop complex regional pain syndrome (CRPS).¹

[¶4] Between 2017 and 2020, the Division requested independent medical evaluations (IME) to determine whether Mr. Bressler had reached maximum medical improvement and should be rated for permanent benefits. The Division received four IME reports from Scott Johnston, M.D., Ricardo Neives, M.D., Jed Shay, M.D., and Gary Walker, M.D, a majority of whom agreed Mr. Bressler had reached maximum medical improvement. Dr. Johnston and Dr. Walker confirmed Mr. Bressler's diagnosis of CRPS and determined him to have 36% permanent partial impairment. Mr. Bressler subsequently applied for and received permanent total disability benefits.

[¶5] In 2019, Mr. Bressler's treating physician, Dr. Heidi Jost, wrote a letter recommending Mr. Bressler receive physical therapy twice weekly, indefinitely, to help treat his CRPS and other medical issues. Nonetheless, the Division requested three Physical Therapy Panel reviews to determine whether Mr. Bressler's continued physical therapy remained reasonable and necessary to treat his work-related injury or was maintenance care not covered under the Division's rehabilitation guidelines.

[¶6] Dr. Dustin Martinson issued the first Physical Therapy Panel review opining Mr. Bressler's documents showed support for ongoing physical therapy, but such therapy needed to be questioned and accompanied by further documentation. Dr. Martinson also opined that Mr. Bressler's current documentation did not demonstrate he benefitted from physical therapy other than as maintenance care and Mr. Bressler should be transitioned to a home exercise program. Dr. Tom Davis completed the second Panel review, stating Mr. Bressler's physical therapy treatment had not resulted in substantial improvement to his overall functional ability and he should be discharged to a home exercise program.

[¶7] Dr. Heather Martinson completed the third Panel review. She opined Mr. Bressler's physical therapy treatment was not reasonable and necessary care for his work-related injury as Mr. Bressler had not shown objectively measurable progress in the course of over 358 physical therapy sessions. She also opined that any current physical therapy treatment would be classified as maintenance care and Mr. Bressler should be transitioned to a home exercise program. Dr. Martinson was deposed in February 2021 during which she affirmed the conclusions in her Panel review.

[¶8] The Division issued three final determinations between July and August 2020 stating that, based on the Physical Therapy Panel reviews, Mr. Bressler's continued physical therapy "would not be considered reasonable or necessary" medical care. The Division thus denied Mr. Bressler compensation for three of his physical therapy treatments and coverage for any future treatments. Mr. Bressler objected to the Division's determinations and the matter was referred to the Commission for a contested case hearing. Mr. Bressler continued to receive physical therapy without the Division's coverage at the time of the hearing in May 2021.

[¶9] At the contested case hearing, Mr. Bressler and the Division agreed the main issue before the Commission was the reasonableness of Mr. Bressler's physical therapy treatment from the end of June 2020 to the date of the hearing and beyond. The parties submitted disclosure statements along with their exhibits to the Commission prior to the hearing. Mr. Bressler did not call any medical experts to testify. Rather, Mr. Bressler was the sole witness. He testified about incurring his work-related injury, his CRPS diagnosis, and the pain he continues to feel in his right arm. He also testified he attends physical therapy two times per week, which consists of a series of treatments and exercises. He described the benefits he receives from physical therapy, including short-term pain relief, an increased ability to grasp objects with his right hand, better sleep for a couple nights after sessions, and increased ability to try activities he had previously been able to perform. Mr. Bressler further testified to performing a rigorous home exercise program for one hour every morning which helped him loosen up, grasp objects, and reduce his pain level. He confirmed he had not returned to work since his 2016 injury and is currently receiving permanent total disability benefits. He did not dispute that he had received approximately 358 physical therapy sessions over three-and-a-half years as noted in Dr. H. Martinson's review. Mr. Bressler also stated he saw Dr. Jost once a year and each time she renewed his physical therapy orders.

[¶10] The Commission issued its order the next month, concluding Mr. Bressler's continued physical therapy was not reasonable and necessary medical care for his work-related injury. It thus upheld the Division's three final determinations denying Mr. Bressler physical therapy benefits. Mr. Bressler appealed the Commission's decision to the district court. The district court affirmed.

[¶11] Mr. Bressler timely appealed.

DISCUSSION

[¶12] Mr. Bressler argues the Commission's order denying him continued physical therapy benefits is unsupported by substantial evidence. "We examine the case as if it came directly from the Medical Commission and give no deference to the district court's decision affirming the agency decision." Genner v. State ex rel. Dep't of Workforce Servs., Workers' Comp. Div. , 2022 WY 123, ¶ 12, 517 P.3d 1138, 1142 (Wyo. 2022) (citing Morris v. State ex rel. Dep't of Workforce Servs., Workers' Comp. Div. , 2017 WY 119, ¶ 23, 403 P.3d 980, 986 (Wyo. 2017) ).

[¶13] Our review is governed by the Wyoming Administrative Procedure Act, which requires us to "[h]old unlawful and set aside agency action, findings and conclusions found to be ... [u]nsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute." Wyo. Stat. Ann. § 16-3-114(c)(ii)(E) (LexisNexis 2023). Under the substantial evidence test, we examine the entire record for "relevant evidence which a reasonable mind might accept in support of the agency's conclusions." Rodriguez v. State ex rel. Dep't of Workforce Servs., Workers' Comp. Div. , 2022 WY 166, ¶ 9, 522 P.3d 164, 168 (Wyo. 2022) (citation omitted). We review the agency's conclusions of law de novo. Id. ¶ 11, 522 P.3d at 168 (citation omitted).

[¶14] Wyo. Stat. Ann. § 27-14-102(a)(xii) (LexisNexis 2023) states, in part:

"Medical and hospital care" when provided by a health care provider means any reasonable and necessary first aid, medical, surgical or hospital service, medical and surgical supplies, apparatus, essential and adequate artificial replacement, body aid during impairment, disability or treatment of an employee pursuant to this act ... and any other health services or products authorized by rules and regulations of the division.

The Division's rules provide that "[w]orkers with injuries compensable under the [Wyoming Worker's Compensation Act] shall be provided reasonable and necessary health care benefits as a result of such injuries." Workers' Comp. Div. Rules & Regulations, Ch. 7, § 3(a)(i) (2011).²

[¶15] Further, the Division has established rules and regulations governing the compensability of physical therapy claims, which state:

(a) Chiropractors, physical therapists, physical therapists assistants, occupational therapists, and occupational therapist assistants may perform treatment modalities in the management of soft tissue injuries for the progressive development of strength and mobility, and to improve functional outcomes. An initial evaluation should document the diagnoses or clinical impression consistent with the presenting complaint(s) and the results of the examination and diagnostic procedures conducted. Subsequent visits performed require documentation of measured, objective, significant findings.

(b) The Division shall pay physical therapy and occupational therapy services only if they are provided pursuant to a prescription from the injured employee's primary treating health care provider, as defined

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