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

• Decision Date: 29 September 2022
• Docket Number: S-22-0012
• Citation: 517 P.3d 1138
• Parties: Robert GENNER, Appellant (Petitioner), v. STATE of Wyoming, EX REL. DEPARTMENT OF WORKFORCE SERVICES, WORKERS’ COMPENSATION DIVISION, Appellee (Respondent).
• Court: Wyoming Supreme Court

517 P.3d 1138

Robert GENNER, Appellant (Petitioner),

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

S-22-0012

Supreme Court of Wyoming.

September 29, 2022

Representing Appellant: Benjamin J. Sherman, Olsen Legal Group, LLC, Cheyenne, Wyoming.

Representing Appellee: Bridget Hill, Wyoming Attorney General; Mark Klaassen, Deputy Attorney General; Peter F. Howard, Senior Assistant Attorney General; Holli J. Welch, Senior Assistant Attorney General.

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

KAUTZ, Justice.

[¶1] The Wyoming Workers’ Compensation Division (Division) denied Robert Genner's request for permanent total disability (PTD) benefits for a 2002 work-related back injury which, he claimed, made him unemployable. The Medical Commission Hearing Panel (Medical Commission) upheld the Division's denial, concluding Mr. Genner did not prove the workplace injury caused his inability to work. The district court found substantial evidence in the record to support the Medical Commission's decision. We affirm.

ISSUE

[¶2] We restate the dispositive issue in this case as: Was the Medical Commission's denial of Mr. Genner's PTD claim supported by substantial evidence and in accordance with the law?

FACTS

[¶3] Mr. Genner moved to Dubois in the mid-1980s. In 2002, he was working in Jackson as a heating, ventilation, and air conditioning (HVAC) technician for Delcon, Inc. when he injured his back lifting a container of glycol into a truck. The emergency room physician who evaluated Mr. Genner the day after the accident diagnosed a lumbar strain. A follow-up MRI showed Mr. Genner had narrowing of the disc space at the L4-L5 vertebral level (where he had previously undergone a laminectomy and fusion) and at the L2-L3 vertebral level. The Division approved worker's compensation coverage for the 2002 back injury, and he was treated with three steroid injections.

[¶4] A year later, Geoffrey Skene, D.O., determined Mr. Genner's workplace injury resulted in a 5% permanent partial impairment (PPI) of his whole body. The Division accepted the rating and awarded him PPI benefits. See Wyo. Stat. Ann. § 27-14-102(a)(ii) (LexisNexis 2021) (an employee suffers a PPI when a workplace injury leaves him with a physical impairment and his condition "will not substantially improve or deteriorate"); Wyo. Stat. Ann. § 27-14-405(f) (LexisNexis 2021) (authorizing payment of PPI benefits). Mr. Genner then applied for permanent partial disability (PPD) benefits to compensate him for his loss of earning capacity from the PPI. See § 27-14-102(a)(xv) (PPD means the "economic loss to an injured employee" from a PPI); § 27-14-405(h) (authorizing payment of PPD benefits). In his PPD application, Mr. Genner stated that, because of the workplace injury, Dr. Skene had restricted him to lifting a maximum of 20 pounds.

[¶5] Due to the lifting restriction, Mr. Genner was unable to continue working for Delcon. He was employed briefly at a hardware store in Jackson and as a maintenance worker for Jackson Hole Aviation. In 2004, he began work as a firefighter and airport technician for the Jackson Hole Airport Authority. To keep his job, he was required to pass a vigorous physical fitness test each year. He retired from the airport in 2014 at the age of 72 and did not work thereafter.

[¶6] The record does not show Mr. Genner received any medical treatment for his back injury from 2004 until 2008. From 2008 through 2010, Mr. Genner was treated for "severe on and off" low back pain with prescription anti-inflammatories, a muscle relaxant, and, on occasion, opioids. An MRI performed in 2013 showed significant degenerative disc disease in Mr. Genner's lumbar spine. Orthopedic surgeon, Joshua Beck, M.D., stated in records from that time that Mr. Genner's low back pain was "related" to his 2002 worker's compensation injury and recommended surgery to decompress and fuse "L2 to L5." Michael Kaplan, M.D., reviewed Mr. Genner's medical records at the Division's request and confirmed the surgery was "appropriate," but Dr. Kaplan could not say whether it was "directly related" to the 2002 work injury. The Division, nevertheless, covered the 2014 surgery.

[¶7] Mr. Genner continued to experience back pain and had a decompression and spinal fusion at the L1-L2 vertebral level in 2016 which, again, was covered by the Division. After that surgery, Mr. Genner's condition improved for a few months. He reported to his physician that he was having "minimal to no back pain" and was not taking pain medication. However, his back pain returned later in the year after he went hunting. In 2017, with the Division's approval, Mr. Genner had a dorsal spinal cord stimulator implanted in his back to relieve pain.

[¶8] Mr. Genner's treating pain physician, Jed Shay, M.D., provided an updated PPI rating in 2017. Dr. Shay reported Mr. Genner suffered from "chronic pain syndrome post lumbar stenosis at multiple levels with fusion from L1-S1 with neurogenic claudication [pain caused by a decrease in blood flow]" and calculated a 17% whole body permanent impairment. The Division approved Dr. Shay's 17% impairment rating in July 2017 and awarded Mr. Genner additional PPI and PPD benefits.

[¶9] A few months after receiving the PPI and PPD awards, Mr. Genner applied for PTD benefits, claiming he was unable to work because he was in chronic pain, could not "lift, bend, twist ... [or] reach," and was taking opioid medication. Despite his advanced age, Mr. Genner maintained he retired in 2014 only because, as a result of the workplace injury, he could no longer physically perform his duties. Dr. Shay provided a disability certification in support of Mr. Genner's PTD application.

[¶10] The Division denied Mr. Genner's application for PTD benefits. He objected to the determination, and the Division referred the matter to the Medical Commission for a contested case hearing. Mr. Genner asserted at the hearing that he was entitled to PTD benefits under the "odd lot" doctrine, which applies to injured workers who are not " ‘altogether incapacitated for work [but are] so handicapped they will not be employed regularly in any well[-]known branch of the labor market.’ " In re Pickens , 2006 WY 54, ¶ 13, 134 P.3d 1231, 1235 (Wyo. 2006) (quoting Schepanovich v. U.S. Steel Corp., 669 P.2d 522, 525 (Wyo. 1983) ) (other citations omitted). Mr. Genner was the only witness to testify at the hearing, but the Medical Commission considered deposition testimony from Dr. Shay and Margot Burns, a vocational expert who evaluated Mr. Genner in 2019 to determine his employability. It also considered the exhibits offered by Mr. Genner, including various medical records and reports, worker's compensation documents, and Ms. Burns’ vocational evaluation.

[¶11] The Medical Commission upheld the Division's denial of PTD benefits to Mr. Genner. It generally concluded Mr. Genner had not presented a prima facie case for PTD benefits under the odd lot doctrine because he did not show: 1) his 2002 workplace injury caused his inability to work; or 2) a lack of suitable work in his community. Mr. Genner petitioned the district court for review of the Medical Commission's decision, and that court affirmed. He filed a timely notice of appeal.

DISCUSSION

[¶12] Mr. Genner claims the Medical Commission incorrectly determined he did not meet his burden of proving he was entitled to PTD benefits under the odd lot doctrine. 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. Morris v. State ex rel. Dep't of Workforce Servs., Workers’ Comp. Div., 2017 WY 119, ¶ 23, 403 P.3d 980, 986 (Wyo. 2017) (when an appeal is taken from a district court's decision on a petition for review of an administrative action, we examine the case as if it came directly from the agency (citing Guerrero v. State ex rel. Dep't of Workforce Servs., Workers’ Comp. Div., 2015 WY 88, ¶ 11, 352 P.3d 262, 265 (Wyo. 2015), and Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 8, 188 P.3d 554, 557 (Wyo. 2008) )).

[¶13] Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2021) governs judicial review of administrative agency decisions:

(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 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.

In accordance with § 16-3-114(c)(ii), we review the agency's findings of fact by applying the substantial evidence standard. Dale, ¶ 21, 188 P.3d at 561 (the only evidentiary standard of review in § 16-3-114(c)(ii) is the substantial evidence standard). "Substantial evidence means ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ " Guerrero, ¶ 12, 352 P.3d at 266 (quoting Bush v. State ex rel. Wyo. Workers’ Comp. Div., 2005 WY 120, ¶ 5, 120 P.3d 176, 179 (Wyo. 2005) ).

[¶14] The claimant has the burden of proving all the essential elements of his worker's compensation claim by a preponderance of the evidence. Phillips v. TIC-The...