Dutcher v. State ex rel. Wyoming Workers' Safety and Comp. Div.

• Decision Date: 04 February 2010
• Docket Number: No. S-09-0093.,S-09-0093.
• Citation: 223 P.3d 559,2010 WY 10
• Parties: In the Matter of the Worker's Compensation Claim of Bryan DUTCHER, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).
• Court: Wyoming Supreme Court

223 P.3d 559

2010 WY 10

In the Matter of the Worker's Compensation Claim of Bryan DUTCHER, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).

No. S-09-0093.

Supreme Court of Wyoming.

February 4, 2010.

Representing Appellant: Kenneth DeCock, Plains Law Offices LLP, Gillette, Wyoming.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, BURKE, JJ.

KITE, Justice.

[¶ 1] After experiencing sudden numbness and weakness on his left side while at work, Bryan Dutcher sought workers' compensation benefits. The Wyoming Workers' Safety and Compensation Division (the Division) denied coverage and Mr. Dutcher objected. The Office of Administrative Hearings (OAH) held a contested case hearing and, concluding that Mr. Dutcher failed to prove his injuries were work related, upheld the denial. The district court affirmed and Mr. Dutcher appealed to this Court. We affirm.

ISSUES

[¶ 2] Mr. Dutcher presents the following issues for this Court's determination:

A. Is there substantial evidence to support the Hearing Officer's conclusion?

B. Is the Hearing Officer's decision arbitrary and capricious?

FACTS

[¶ 3] Mr. Dutcher was employed as a laborer for L & L Mine Services in Gillette, Wyoming. On October 9, 2006, he was lying on his left side scraping grease off a large piece of equipment. As he reached with his right arm, he felt numbness and weakness in his left side. Later, he felt dizzy, could not use his left arm and experienced weakness in his left leg and left facial droop.

[¶ 4] Mr. Dutcher informed his foreman, who transported him from the mine into town where his wife met them and took Mr. Dutcher to the emergency room. The medical personnel admitted and examined him over the next few days as a possible stroke victim. The hospital released him on October 12, 2006.

[¶ 5] On October 16, 2006, Mr. Dutcher consulted Angelo Santiago, M.D., a neurologist who, after examining Mr. Dutcher and performing tests, diagnosed him with brachial plexopathy.¹ Mr. Dutcher sought a second opinion from another neurologist, Robert Finley, M.D. After examining him, Dr. Finley recommended that Mr. Dutcher continue treatment with Dr. Santiago. Mr. Dutcher sought still another opinion from Dr. Robert Neuwirth, who concluded brachial plexopathy was unlikely and the most likely diagnosis was cervical myelopathy. Dr. Neuwirth also noted significant thyroid dysfunction as a contributing factor and the possibility of an injury to Mr. Dutcher's vertebral artery perhaps brought on by his prolonged position on his left side at work.

[¶ 6] Mr. Dutcher returned to work in the latter part of December, 2006. In May of 2007, his employer let him go and Mr. Dutcher filed an injury report with the Division. The Division denied coverage in a final determination issued on August 7, 2007, in which it noted Mr. Dutcher had a pre-existing seizure condition and concluded there was no clear indication of a work injury. Mr. Dutcher objected and the Division referred the case to the OAH.

[¶ 7] In early 2008, the Division retained Thomas Mayer, M.D., another neurologist, to perform an independent medical examination of Mr. Dutcher. Dr. Mayer concurred with the diagnosis of brachial plexopathy and concluded it was related to Mr. Dutcher's employment. Dr. Mayer also concluded the brachial plexopathy may have been followed by, and may have triggered, a seizure.

[¶ 8] The OAH held a contested case hearing on April 15, 2008. Following the hearing, the hearing examiner denied Mr. Dutcher's claim for benefits, concluding he did not meet his burden of proving that the seizure or brachial plexopathy were related to his employment. Mr. Dutcher appealed the order to the district court which affirmed the denial of benefits. Mr. Dutcher timely appealed to this Court.

STANDARD OF REVIEW

[¶ 9] When we consider an appeal from a district court's review of an administrative agency's decision, we give no special deference to the district court's decision; instead, we review the case as if it had come directly to us from the administrative agency. Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 8, 188 P.3d 554, 557 (Wyo.2008). Our review is governed by Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2009), 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:

(i) Compel agency action unlawfully withheld or unreasonably delayed; and

(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.

[¶ 10] In this case, Mr. Dutcher challenges the hearing examiner's determination that he did not meet his burden of proving that his brachial plexopathy and seizure were related to his employment. We, therefore, decide whether there is substantial evidence to support the hearing examiner's decision to reject the evidence Mr. Dutcher presented by considering whether that conclusion was contrary to the overwhelming weight of the evidence in the record as a whole. Dale, ¶ 22, 188 P.3d at 561. If, in the course of its decision making process, the agency disregarded certain evidence and explained 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. Id. 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 upon all the evidence before it. Id.

DISCUSSION

[¶ 11] Mr. Dutcher asserts that the hearing examiner's decision is contrary to the overwhelming weight of the evidence because three doctors, including the doctor the Division retained, concluded the brachial plexopathy was related to his employment. He contends that in reaching the contrary conclusion the hearing examiner had to ignore the opinions of those three doctors and rely exclusively on Dr. Neuwirth who reached his conclusions without the benefit of the test results Dr. Santiago obtained, which clearly showed Mr. Dutcher suffered from brachial plexopathy.

[¶ 12] The Division responds that the hearing examiner's decision was supported by substantial evidence. It asserts that Mr. Dutcher's story was inconsistent in that he did not report that his shoulder popped until he was seen by Dr. Mayer. Given this inconsistency, the Division asserts, and the fact that Dr. Mayer's opinions were based heavily on what Mr. Dutcher told him, the hearing examiner properly discounted both Mr. Dutcher's testimony and that of Dr. Mayer. The Division further contends that the other medical opinions did not tie the brachial plexopathy to Mr. Dutcher's work. The Division asserts substantial evidence supported the hearing examiner's conclusions that the seizure was part of a pre-existing condition and was not triggered by the shoulder incident; it was questionable whether Mr. Dutcher suffered a brachial plexopathy; and, even if he suffered a brachial plexopathy, he failed to prove that it was related to his work.

[¶ 13] Wyo. Stat. Ann. § 27-14-102(a)(xi) (LexisNexis 2009) defines the term injury in relevant part as:

[A]ny harmful change in the human organism other than normal aging .... arising out of and in the course of employment while at work in or about the premises occupied, used or controlled by the employer and incurred while at work in places where the employer's business requires an employee's presence and which subjects the employee to extrahazardous duties incident to the business. "Injury" does not include:

....

(F) Any injury or condition preexisting at the time of employment with the employer against whom a claim is made[.]

[¶ 14] Applying this provision, we have said that an employer takes an employee as he finds him, and an employee who has a pre-existing condition may still recover if his employment substantially or materially aggravated the condition. Lindbloom v. Teton Int'l, 684 P.2d 1388, 1389 (Wyo.1984). We have cited with approval the widely accepted treatise, Larson's Workmen's Compensation Law, for the proposition that:

Preexisting disease or infirmity of the employee does not disqualify a claim under the "arising out of employment" requirement if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the death or disability for which compensation is sought.

Lindbloom, 684 P.2d at 1389; Wyo. Workers' Comp. Div. v. Faulkner, 2007 WY 31, ¶ 11, 152 P.3d 394, 397 (Wyo.2007); State ex rel. Wyo. Workers' Comp. Div. v. Fisher, 914 P.2d 1224, 1227 (Wyo.1996).

[¶ 15] Whether the employment aggravated, accelerated, or combined with the pre-existing condition to produce the disability is a question of fact, not law, and a finding of fact on this point based on any medical testimony will not be disturbed on appeal. Straube v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2009 WY 66, ¶ 15, 208 P.3d 41, 48 (Wyo.2009). To prove aggravation of a preexisting condition, a claimant...