Herrera v. State Of Wyo.

• Decision Date: 28 July 2010
• Docket Number: Case Number: S-09-0191
• Citation: 2010 WY 103
• Parties: JAMES A. HERRERA, Appellant (Respondent), v. STATE OF WYOMING, ex rel., WYOMING WORKERS SAFETY AND COMPENSATION DIVISION, Appellee (Petitioner).
• Court: Wyoming Supreme Court

2010 WY 103

JAMES A. HERRERA, Appellant (Respondent),

v. STATE OF WYOMING, ex rel., WYOMING WORKERS SAFETY AND COMPENSATION DIVISION, Appellee (Petitioner).

Case Number: S-09-0191

Supreme Court of Wyoming

Decided: 07/28/2010

Representing Appellant: Donna D. Domonkos, Cheyenne, Wyoming.

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

Appeal from the District Court of Sweetwater County

The Honorable Jere A. Ryckman, Judge

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

KITE, Chief Justice.

[ 1]After sustaining a work related injury ultimately requiring amputation of his right index finger, James A. Herrera began taking an anti-depressant medication.The Wyoming Workers Safety and Compensation Division (Division) paid for the medication for two years and then denied further payment.Mr. Herrera objected and, after a contested case hearing, the Office of Administrative Hearings (OAH) awarded him benefits.The Division sought review in district court and the district court reversed the award.We reverse the district court s ruling.

ISSUES

[ 2]Mr. Herrera presents two issues for this Court s consideration:

1.Whether the OAH s findings and conclusions were supported by substantial evidence.

2.Whether the OAH s findings and conclusions are in accordance with the law.

FACTS

[ 3] On October 1, 2002, Mr. Herrera was working for Groathouse Construction as a cement finisher.He and a co-worker were setting up cement forms and the co-worker was using a 10-pound sledge hammer to pound in a stake to hold the forms.He swung the sledge hammer, missed the stake and struck Mr. Herrera s right hand.The blow crushed Mr. Herrera s right hand and index finger.Mr. Herrera filed a report of injury and the Division awarded him benefits.

[ 4]Between the date of injury and 2006, Mr. Herrera underwent multiple surgeries on his right hand.In June of 2006, Mr. Herrera s physician prescribed the drug Lexapro to help relieve anxiety Mr. Herrera was experiencing as a result of his injury.After the surgeries proved unsuccessful in relieving Mr. Herrera s pain and other symptoms, his right index finger was amputated in March of 2008.

[ 5]The Division paid medical and other benefits for the treatment of Mr. Herrera s hand, including the Lexapro prescription. In June of 2008, however, the Division issued a final determination in which it denied further payment for the Lexapro.¹ As grounds for the denial, the Division asserted that Lexapro, commonly used as an anti-depressant, was used to treat a mental injury and, pursuant to Wyo. Stat. Ann. 27-14-102(a)(xi)(J) (LexisNexis 2007), medications used to treat mental health conditions cannot be paid six months after the claimant reaches maximum medical improvement. ² Mr. Herrera objected to the determination and the OAH scheduled a contested case hearing.

[ 6]Following the hearing in October of 2008, the OAH awarded benefits. In its ruling, the OAH stated:

26.[T]his case involved a medication which appears to be prescribed for multiple reasons and not just for treatment of depression or anxiety.Herrera was a very credible witness and his unchallenged testimony was that the Lexapro was prescribed to treat his pain and elevated blood pressure, in addition to his anxiety.Herrera credibly explained that when the doctor attempted to discontinue the Lexapro prescription, Herrera s hand pain increased significantly and due to the severe hand pain his blood pressure became dangerously high.Once Herrera restarted the prescription, his hand pain decreased and his blood pressure returned to a safe level.

27.Based on the unchallenged testimony and proof of the results of the Lexapro prescription, this Office finds the Lexapro is being prescribed to treat not only Herrera s anxiety, but also his physical injury.As the Lexapro is being used as a pain control for Herrera s significant injury, this Office finds it is not subject to the limits of Wyo. Stat. Ann. 27-14-102(a)(xi)(J), (LEXIS 2002).Therefore, Herrera has proven, by a preponderance of the evidence, all of the essential elements of his claim.Specifically, Herrera proved he suffered a significant right hand injury while in the course and scope of his duties for Groathouse, Herrera is still being treated for his injuries, and Herrera s Lexapro prescription is for the treatment of Herrera s work related physical injury.

[ 7]The Division sought review in district court.After considering the parties arguments, the district court concluded substantial evidence did not support the OAH ruling and reversed the award of benefits.The district court stated:

The finding that [Mr. Herrera] s physical injury was treated with Lexapro is contrary to the overwhelming weight of the evidence.Instead, document evidence emphasizes [Mr. Herrera] s depression, situational depression, depressive anxieties, acute stress reaction, and helpfulness to his mood.It is noteworthy that no physician testified and no medical evidence was presented connecting the physical injury and [Mr. Herrera] s use of Lexapro.Substantial evidence does not support the finding that [Mr. Herrera] was being treated with Lexapro for a physical injury.

Mr. Herrera appealed to this Court from the district court s ruling.

STANDARD OF REVIEW

[ 8]In considering 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.Dale v. S & S Builders, LLC, 2008 WY 84, 8, 188 P.3d 554, 557 (Wyo. 2008).Instead, we review the case as if it had come directly to us from the administrative agency.Id.Our review is governed by Wyo. Stat.Ann. 16-3-114(c) (LexisNexis 2009), which states:

(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.

[ 9]When the burdened party prevailed before the agency, we determine if substantial evidence exists to support the agency s decision by considering whether there is relevant evidence in the entire record which a reasonable mind might accept in support of the agency s ruling.Dale, 22, 188 P.3d at 561.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.Bush v. State ex rel. Wyoming Workers Comp. Div., 2005 WY 120, 5, 120 P.3d 176, 179 (Wyo. 2005) (citations omitted).

[ 10]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.Dale, 22, 188 P.3d at 561.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. Id.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., 26, 188 P.3d at 561-62.

DISCUSSION

[ 11]Mr. Herrera contends the OAH s determination that he was entitled to benefits was supported by substantial evidence and must be affirmed.He points to his testimony that his physician prescribed Lexapro for pain, numbness and depression.He also points to his testimony that when he stopped taking Lexapro his pain increased, which caused his blood pressure to rise, and when he resumed taking Lexapro those physical symptoms subsided.Because the Division did not present evidence disputing his testimony, he contends, substantial evidence supported the OAH ruling.

[ 12]The Division asserts the district court properly held substantial evidence did not support the OAH ruling that Lexapro was prescribed to reduce Mr. Herrera s pain, numbness and high blood pressure.The Division contends the evidence showed Lexapro was prescribed to treat Mr. Herrera s agitation, stress, anxiety and depression, that is, mental injuries.Citing 27-14-102(a)(xi)(J), the Division asserts mental injuries are compensable only when there is evidence, which did not exist in Mr. Herrera s case, that a licensed psychiatrist or clinical psychologist diagnosed such injuries.In the absence of a mental health diagnosis, the Division contends Mr. Herrera had the burden of proving Lexapro was for treatment of physical injuries which, the Division asserts, he failed to do because he did not present medical evidence supporting his testimony.

[ 13]Section 27-14-102(a)(xi)(J) excludes from coverage any mental injury unless it is caused by a compensable physical injury, it occurs subsequent or simultaneously with the physical injury and it is established by clear and convincing evidence.We addressed this exclusion in Brierley v. State ex rel. Wyoming Workers Safety and Comp. Div., 2002 WY 121, 17, 52 P.3d 564, 571 (Wyo. 2002) (holding clear and convincing evidence established...