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

388 P.3d 786

2017 WY 16

In the Matter of The Worker's Compensation Claim of: Valerie Price, Appellant (Petitioner),

v.State of Wyoming, ex rel., Department of Workforce Services, Workers' Compensation Division, Appellee (Respondent).

S-16-0160

Supreme Court of Wyoming.

February 16, 2017

Representing Appellant: Sky D Phifer, Phifer Law Office, Lander, Wyoming.

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

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

FOX, Justice.

[¶1] Valerie Price suffered a work injury in 2004. As a result, she had shoulder surgery in 2005, which was covered by the Wyoming Workers' Compensation Division (Division). In 2013, Ms. Price sought benefits for surgery on the same shoulder to treat calcific tendinitis. Her surgeon found a hole in the fascia over the acromioclavicular joint during the 2013 surgery, which may have occurred during the 2005 surgery. She therefore contended that the 2013 surgery was a second compensable injury. The Division denied her claim. After a hearing, the Medical Commission (Commission) determined that Ms. Price had not proven the 2013 surgery was causally related to her 2004 injury and subsequent treatment. Ms. Price appealed, and the district court affirmed the Commission's ruling. Ms. Price timely appealed, and we affirm.

ISSUES

[¶2] We rephrase the issues as:

1. Was the Medical Commission Hearing Panel's conclusion that there was no causal link between Ms. Price's work-related injury and the need for her 2013 surgery supported by substantial evidence?

2. Did the Medical Commission Hearing Panel improperly apply apportionment when it concluded that Ms. Price's 2013 surgery was not compensable?

FACTS

[¶3] Valerie Price hurt her right shoulder at work in 2004 when she took the trash outside and slipped and fell on ice. As a result, in 2005 she had a right shoulder arthroscopy, which was covered by the Division. She reported continued right shoulder pain over the following years. In 2013, she saw Dr. Bienz for right shoulder pain, and he diagnosed calcification and recommended arthroscopic debridement. Dr. Bienz noted that he had reviewed "the x-rays from 2005, and at that time, there was not much calcification in the rotator cuff, but on today's images, there is a significant amount of soft tissue calcification...." He observed:

The other question here, of course, is whether this is truly related to the initial injury. She is of the impression that her shoulder "would always be covered" because of the initial incident that led to the [2005 surgery], however, the fact that she had no calcific tissue in 2005 when she was last treated by me and has since developed substantial calcific tendinitis would suggest that this calcific tissue developed since her last incident, not necessarily because of her last incident.

The Division denied coverage for the surgery. Dr. Bienz performed the right shoulder arthroscopy with debridement on May 17, 2013. During the course of that surgery, he noted "a large hole in the acromioclavicular joint where the previous procedure apparently caused the fascia to separate or perhaps it was never repaired." He determined that the hole was communicating fluid to the joint surface and repaired it.

[¶4] Dr. Bienz testified that he did not believe the calcific tendinitis for which he treated Ms. Price in 2013 was caused by her 2004 workplace injury.

Q. Okay. Now, do you have any opinion as to whether Ms. Price's calcific tendinitis is related to her workplace injury?

A. Well, I mean, it is—it's certainly related. I mean, it's in the same side. It's the same joint. You know, there is some relationship there. But for a variety of reasons outlined in that other note, I don't think it likely that the fall carrying the garbage caused her to later develop calcific tendinitis. And part of that is also even more information than what we had in April, is that she has subsequently developed rather significant calcific tendinitis in the opposite shoulder, as well, which was treated by my partner, Dr. Carlson. And you know, there was no injury to the opposite shoulder when she fell.

[¶5] Dr. Bienz testified that he assumed the hole in the acromioclavicular joint, which he repaired, was most likely caused by the original 2004 surgery, "unless she developed a tear ... after the fact...." When asked why it was necessary to do that repair, he responded:

A. I don't know if "necessary" is the right word, but basically when you're doing a procedure, especially on a patient like this who has pain but you're never quite sure why they have pain, you do attempt to correct any abnormality that you find so that you can minimize the chance that they're going to continue to have pain.

And in this case, you know, what I noticed is that there was fluid coming down from up there, which shouldn't be happening, because normally that's a sealed area. And so we went up and looked, and we did in fact find a communication to the subacromial space through that fascial tear.

Q. And could—could this be causing part of the pain that Ms. Price was suffering from that caused you to go in and try to do the repair?

A. I guess it's possible. It didn't seem real likely, but that's certainly possible....

....

Q. So in your opinion, it was something that needed to be done?

A. I think it should have been done, yes. If you find an opening communicating the subacromial space to the subcutaneous space, it should be sealed if possible.

Q. And you feel that this was related to the previous surgery done in 2005 that was preceded by the fall and caused by the fall. Is that safe to say?

A. I do believe that the defect in the fascia over the AC joint was related to and caused by the original surgery done with an arthroscope in 2005, yes.

[¶6] Ms. Price's providers submitted bills for her 2013 surgery, and the Division denied payment. Ms. Price appealed and after an evidentiary hearing, the Commission determined that she had "failed to prove by a preponderance of the evidence that the medical treatment she received was causally related either to her work place injury on December 25, 2004, or the initial surgery she received on her right shoulder on March 11, 2005" for that injury. The district court affirmed the Commission's ruling. Ms. Price timely appealed to this Court.

STANDARD OF REVIEW

[¶7] We treat an appeal from a district court's review of an administrative agency's decision as if it had come directly from the administrative agency and give no deference to the district court's decision. Kenyon v. State ex rel. Wyo. Workers' Safety & Comp. Div. , 2011 WY 14, ¶ 10, 247 P.3d 845, 848 (Wyo. 2011) ; Dale v. S & S Builders, LLC , 2008 WY 84, ¶ 8, 188 P.3d 554, 557 (Wyo. 2008). Our review is controlled by Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2015):

(c) ... 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;

....

(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.

Accordingly, we review the agency's findings of fact by applying the substantial evidence standard. Worker's Comp. Claim of Bailey v. State ex rel. Wyo. Dep't of Workforce Servs. , 2015 WY 20, ¶¶ 10–12, 342 P.3d 1210, 1213 (Wyo. 2015) ; Dale , 2008 WY 84, ¶ 21, 188 P.3d at 561. Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Matter of Worker's Comp. Claim of Jensen v. State , 2016 WY 87, ¶ 13, 378 P.3d 298, 303 (Wyo. 2016) (citing 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 . (citing Kenyon , 2011 WY 14, ¶ 11, 247 P.3d at 849 ; Bush , 2005 WY 120, ¶ 5, 120 P.3d at 179 ).

If the hearing examiner determines that the burdened party failed to meet his burden of proof, we will decide whether there is substantial evidence to support the agency's decision to reject the evidence offered by the burdened party by considering whether that conclusion was contrary to the overwhelming weight of the evidence in the record as a whole. If, in the course of its decision making process, the agency disregards certain evidence and explains its reasons for doing so based upon determinations of credibility or other factors contained in the record, its decision will be sustainable under the substantial evidence test. Importantly, our review of any particular decision turns not on whether we agree with the outcome, but on whether the agency could reasonably conclude as it did, based on all the evidence before it.

Worker's Comp. Claim of Bailey , 2015 WY 20, ¶ 11, 342 P.3d at 1213 (citations omitted). Finally, "we review an agency's conclusions of law de novo , and will affirm only if the agency's conclusions are in accordance with the law." Id . at ¶ 12, 342 P.3d at 1213 (citations omitted).

DISCUSSION

I. Was the Medical Commission Hearing Panel's conclusion that there was no causal link between Ms. Price's work-related injury and the need for her 2013 surgery supported by substantial evidence?

[¶8] Ms. Price...