Gray v. State ex rel. Wyo. Workers' Safety

• Decision Date: 03 October 2008
• Docket Number: No. S-07-0143.,S-07-0143.
• Parties: Arthur Cody GRAY a/k/a Tobin McGuffin, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).
• Court: Wyoming Supreme Court

193 P.3d 246

2008 WY 115

Arthur Cody GRAY a/k/a Tobin McGuffin, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).

No. S-07-0143.

Supreme Court of Wyoming.

October 3, 2008.

Representing Appellant: David M. Gosar of Jackson, Wyoming.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; Kristi M. Radosevich, Assistant Attorney General. Argument by Ms. Radosevich.

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

VOIGT, Chief Justice.

[¶ 1] The Workers' Safety & Compensation Division (the Division) denied Appellant, Arthur Cody Gray (a/k/a Tobin McGuffin), benefits for expenses related to a back injury on the basis that the injury was not attributable to a work-related accident. Appellant requested review of the decision by the Office of Administrative Hearings (OAH), which upheld the Division's denial. Appellant now asks this Court to review the District Court Order affirming the OAH's decision. We reverse.

ISSUES

[¶ 2] 1. Were the findings and decision of the OAH unsupported by substantial evidence?

2. Did the OAH err when it determined that conclusive medical testimony was required in order for Appellant to meet his burden of proof?

3. Did the OAH abuse its discretion in admitting hearsay evidence presented by the Division?

FACTS

[¶ 3] Both parties agree that Appellant was bucked off a horse on June 19, 2002, in the course of his work as a trail guide. The horse bucked Appellant off and then proceeded to crow-hop¹ on him repeatedly. Appellant was rushed to the hospital and admitted with a number of injuries, including a "back strain and contusion." On July 12, 2002, the Division determined the injuries related to the accident compensable and declared the incident an open case with regard to injuries to Appellant's "left abdomen, left back, left chest, left face, left upper leg(s), and left groin." The Division paid benefits for medical treatment related to those injuries and Appellant collected temporary total disability benefits for about one month following the incident.

[¶ 4] In September of 2002, Appellant told his orthopedic physician that his back "popped" and that he experienced immediate severe pain in his lower extremities. His doctor ordered an MRI, which revealed that Appellant had a large herniated disk. The Division initially paid for treatment for Appellant's back, including pain medications, injections, and office visits. In November of 2002, however, the analyst responsible for Appellant's case received an anonymous telephone call informing her, among other things, that Appellant had been moving hay when his back popped. The Division initiated an investigation into the anonymous claim. As a result of that investigation, the Division issued a Final Determination on December 2, 2002, refusing further payment of benefits because Appellant's "back injury was not caused by a work related incident." After a series of hearings in 2003 and 2004, the OAH upheld the Division's denial of benefits in an order dated February 25, 2005. The district court affirmed that decision on May 3, 2007. This appeal followed.

DISCUSSION

Were the findings and decision of the OAH unsupported by substantial evidence?

[¶ 5] W.R.A.P. 12.09(a) directs us to Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2007) for the matters to be considered in the review of administrative action. We recently said the following with regard to the standard of review when we are required to examine the evidentiary findings of an agency:

Section 16-3-114(c)(ii) provides only one evidentiary standard of review. Under the plain language of the statute, reversal of an agency finding or action is required if it is "not supported by substantial evidence." Because contested case hearings under Wyoming's Administrative Procedures Act, are formal, trial-type proceedings, use of the substantial evidence standard for review of evidentiary matters is more in keeping with the original intent of the drafters of the administrative procedures act. 33 Fed. Prac. & Proc., Judicial Review §§ 8333, 8334.

Thus, in the interests of simplifying the process of identifying the correct standard of review and bringing our approach closer to the original use of the two standards, we hold that henceforth the substantial evidence standard will be applied any time we review an evidentiary ruling. When the burdened party prevailed before the agency, we will determine if substantial evidence exists to support the finding for that party by considering whether there is relevant evidence in the entire record which a reasonable mind might accept in support of the agency's conclusions. 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. See, Wyo. Consumer Group v. Public Serv. Comm'n of Wyo., 882 P.2d 858, 860-61 (Wyo.1994); [Board of Trustees of Laramie County School Dist. No. 1 v.] Spiegel, 549 P.2d [1161,] 1178 [(Wyo. 1976)] (discussing the definition of substantial evidence as "contrary to the overwhelming weight of the evidence"). 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.

Dale v. S & S Builders, LLC, 2008 WY 84, ¶¶ 21-22, 188 P.3d 554, 561 (Wyo.2008).² An agency's conclusions of law are reviewed de novo, and are affirmed if they are in accordance with the law. Id., 2008 WY 84, ¶ 26, 188 P.3d at 562. "[W]e afford no deference to conclusions reached by the district court, but review the case as if it had come directly from the agency." Loomer v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2004 WY 47, ¶ 15, 88 P.3d 1036, 1041 (Wyo.2004).

[¶ 6] Appellant presented significant argument that most of the OAH's findings of fact were irrelevant and/or unsupported by substantial evidence. We agree that many of the findings of fact are irrelevant and we are troubled to find that many are also unsupported by the record. Viewing the record as a whole, we conclude that the OAH's decision was unsupported by substantial evidence.

[¶ 7] The original emergency room reports from Appellant's accident indicate that he suffered a "[b]ack strain and contusion," along with a multitude of other injuries, as a result of his run-in with the horse on June 19, 2002. Appellant's original injury report to the Division does not specifically list his back among his injuries, but the final determination granting him coverage for his injuries does list his "left back" as an affected area. Multiple x-rays of the spine and a CT scan of the abdominal area were taken after the initial injury, but no MRI was performed. No acute findings were noted.

[¶ 8] Several months later, on September 4, 2002, Dr. William Neal conducted the orthopedic evaluation that led to the diagnosis of disk herniation. In his report, Dr. Neal states that Appellant reported that

[l]ast week his back "popped" giving him immediate pain down the (R) lower extremity. This resolved in a day or two, but then shifted to pain down the (L) lower extremity. He now has pain in the posterior buttock area, radiating down the posterior thigh, posterior calf and into the (L) great toe.

Dr. Neal did not testify at the hearing. A report by Dr. Mary Hume-Neal, dated September 5, 2002, indicates that "[o]n 6/19/02 [Appellant] was thrown off a horse and stomped on while at work and his back has been bothering him ever since. It has been increasing in intensity. Dr. Neal has requested further consultation for this problem." Dr. Hume-Neal's report states:

10% of his problem is low back pain while 90% is pain radiating posteriorly down his (L) lower extremity to his ankle. He also has (R) medial thigh pain. Mr. Gray describes his pain as constant. On a scale of 1-10 he rates his intensity of pain as a 9 with no relationship to the time of day.

Dr. Hume-Neal's report also contains findings that radiographic examination (an MRI) shows a large disk herniation. Dr. Hume-Neal did not testify at the hearing.

[¶ 9] Approximately one month later, on October 19, 2002, Appellant was treated for severe and sudden back pain in the emergency room of the local hospital. The emergency room physician, Dr. Vaughn Morgan, reported that Appellant "does have weakness in the left leg and states he got up to go to the bathroom this morning, the left leg gave out and he went down hard onto the floor." Dr. Heidi Michelsen-Jost, who also treated Appellant in the E.R. that day, stated in her report that Appellant "had an acute onset episode of pain earlier today while in the standing position. The pain was so gripping shooting down his left lower extremity that he was unable to weightbear. There was even a transient episode of being unable to move the left lower extremity."³ Neither Doctor Morgan, nor Doctor Michelsen-Jost testified at the hearing.

[¶ 10] Dr. Geoffrey Skene, Appellant's treating physician, did testify at the hearing. Dr. Skene first saw Appellant on September 5, 2002. Dr. Skene testified that x-rays would not show a soft-tissue injury (such as a herniated disk) and that a CAT scan or MRI was necessary for such a diagnosis. Dr. Skene also testified that typically the symptoms of a herniated disk "occur pretty close to the...