In re Nagle

• Decision Date: 19 August 2008
• Docket Number: No. S-07-0222.,S-07-0222.
• Parties: In the Matter of the Worker's Compensation Claim of Robert NAGLE, Jr.: Robert Nagle, Jr., Appellant, (Employee/Claimant), v. State of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division, Appellee, (Respondent).
• Court: Wyoming Supreme Court

190 P.3d 159

2008 WY 99

In the Matter of the Worker's Compensation Claim of Robert NAGLE, Jr.:

Robert Nagle, Jr., Appellant, (Employee/Claimant), v. State of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division, Appellee, (Respondent).

No. S-07-0222.

Supreme Court of Wyoming.

August 19, 2008.

Representing Appellant: Sean W. Scoggin of Tiedeken & Scoggin, P.C., Cheyenne, Wyoming.

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

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

HILL, Justice.

[¶ 1] On January 5, 1987, Appellant, Robert Nagle, Jr. (Nagle), suffered an open fracture, dislocation and crush injury to the first, second, and fourth metatarsals of his left foot. Since then, he has continued to experience worsening medical complications, which he claims can be traced to that injury. Over the course of the intervening years, Nagle received worker's compensation benefits for the treatment associated with these ongoing problems. In 2003, he sought an award of permanent total disability benefits. By letter dated April 22, 2003, the Wyoming Workers' Safety and Compensation Division (Division) denied his claim for permanent total disability benefits. Nagle also sought benefits for a "second compensable injury" that occurred when he fell in a parking lot and injured his wrist and hip. His claim is that his left foot and leg "gave out," causing him to fall. The Division denied that claim as well. Nagle objected to both determinations and requested a hearing.

[¶ 2] A hearing concerning both issues was held before the Medical Commission on February 8, 2006, and it denied relief to Nagle in an order dated May 22, 2006. On June 8, 2006, Nagle filed a petition for review in the district court. In a decision letter filed of record on August 3, 2007, the district court affirmed the Medical Commission. Nagle timely filed his notice of appeal to this Court on September 4, 2007. After briefing and assignment to the Court's expedited docket, the case was taken under advisement by this Court on February 5, 2008.

[¶ 3] In this appeal, Nagle contends that the Medical Commission's decision was arbitrary, capricious, and not supported by standing case law, or by substantial evidence presented at the hearing. Because there is not substantial evidence to sustain the Medical Commission's determination, we will reverse the district court's order affirming the Medical Commission and remand this matter to the district court with directions that it further remand the case to the Medical Commission with directions that it award permanent total disability benefits to Nagle. In addition, it shall direct the Medical Commission to order that Nagle be paid benefits for the injuries he suffered to his wrist and hip when he fell in 2001, which were caused by the gait/walking instability associated with his mutilated left foot.

ISSUES

[¶ 4] Nagle raises these issues:

I. Whether the Medical Commission's decision that Mr. Nagle was not entitled to permanent total disability benefits was arbitrary and capricious and not supported by the standing case law.

II. Whether the Medical Commission's decision that Mr. Nagle's medical treatment for his wrist and hip was arbitrary and capricious and not supported by the substantial evidence presented at the hearing.

The Division responded:

I. Whether the Medical Commission Hearing Panel's determination, that Mr. Nagle failed to prove his entitlement to permanent total disability benefits, was arbitrary or capricious?

II. Whether the Medical Commission Hearing Panel's determination, that Mr. Nagle failed to prove the relatedness between his 1987 left foot injury and his recent wrist and hip injuries, was arbitrary or capricious?

FACTS AND PROCEEDINGS

[¶ 5] We noted above that Nagle injured his left foot on January 5, 1987. Treatment of the injury required five surgical procedures that took place between January 7, 1987, and February 12, 1993. He continues to receive treatment for that injury until this day, and that treatment is paid for by the Division. Nagle received temporary total disability benefits for approximately a year after the injury. He was able to return to light duty work and was employed intermittently from 1988 until 2001. He was on sick leave for a year after that and in 2002, he retired on Medicare/Social Security disability and has not returned to employment since that time.

[¶ 6] Wyo. Stat. Ann. § 27-14-102(a)(xvi) (LexisNexis 2007) defines "permanent total disability:" "`Permanent total disability' means the loss of use of the body as a whole or any permanent injury certified under W.S. 27-14-406, which permanently incapacitates the employee from performing work at any gainful occupation for which he is reasonably suited by experience or training[.]" Wyo. Stat. Ann. § 27-14-406 (Lexis-Nexis 2007) provides:

(a) Subject to W.S. 27-14-602, upon certification by a physician licensed to practice surgery or medicine that an injury results in permanent total disability as defined under W.S. 27-14-102(a)(xvi), an injured employee shall receive for eighty (80) months a monthly payment as provided by W.S. 27-14-403(c) less any previous awards under W.S. 27-14-405 which were involved in the determination of permanent total disability, and dependent children shall receive an award as provided by W.S. 27-14-403(b). The monthly payment amount computed under W.S. 27-14-403(c) and any amount awarded under W.S. 27-14-408 shall constitute the exclusive benefit for both the physical impairment and the economic loss resulting from an injury, including loss of earnings, extra expenses associated with the injury and vocational rehabilitation. An employee shall not receive benefits under this section if receiving benefits under W.S. 27-14-404 or 27-14-405.

(b) This section specifies the length of time amounts computed pursuant to W.S. 27-14-403(c) are to be awarded and except for amounts awarded under W.S. 27-14-408, shall not be construed to allow awards in excess of the amounts computed pursuant to W.S. 27-14-403(c).

(c) Any objection to a final determination pursuant to this section shall be referred to the medical commission for hearing by a medical hearing panel acting as hearing examiner pursuant to W.S. 27-14-616.

[¶ 7] The only person who testified at the hearing on this matter was Mr. Nagle. In this regard, we must keep in mind our rule that the testimony of an injured worker alone is sufficient to prove an accident if there is nothing to impeach or discredit the worker's testimony, and the worker's statements are corroborated by surrounding circumstances. Moreover, the occurrence of injuries resulting from accidents to which there are no eyewitnesses does not prevent fair inferences from being drawn and findings of facts from being made. Ikenberry v. State ex rel. Wyoming Workers' Compensation Division, 5 P.3d 799, 803 (Wyo.2000). This most directly applies to Nagle's contention that it was the disabled condition of his left foot and leg that caused him to stumble and fall, injuring his wrist and hip, but it also applies to his permanent total disability claim. In this regard, we are also called upon to consider Nagle's fall in light of the second compensable injury rule. Alvarez v. State ex rel. Workers' Safety and Compensation Division, 2007 WY 126, ¶¶ 18-28, 164 P.3d 548, 552-55 (Wyo. 2007).

[¶ 8] Mr. Nagle was 50 years of age in 2006, and his educational attainment was a high school diploma (and a few college courses before 1974). In 2003 he took a pre-English class because he was not very good in English, but had not done anything since to follow up on that. Nagle also took some courses (six or eight classes) after his injury, through a junior college, to try to develop "something to fall back on." Nagle lived in Newcastle until age 12, graduated from a New Mexico high school in 1974, and returned to live in Wyoming in 1977. He has lived and worked in or around Newcastle since then. In 1978 he began working in a coal mine and continued that work for 24 years, until he was no longer able to do the tasks required of him in his line of work because of his injury.

[¶ 9] Nagle related the extent of his injuries and the course of treatment over the years 1987-2002, in detail, but we will not include that material here because it does not affect any of the issues raised in the appeal. Suffice it to say that the gist of Nagle's testimony was that by 2002, he was totally disabled. Nagle drove from Newcastle to Cheyenne for the hearing in this case, but was not driving back home that same day. Mr. Nagle lives alone. In 2002, he went on Social Security disability. In addition to the disabling injury to his foot, Nagle has a "flutter" in his heart for which he takes medication, but that condition imposes no restrictions on his ability to function on a day-to-day basis.

[¶ 10] Although the record is not clear as to the exact date when the event occurred, Nagle fell in the parking lot of a Wal-Mart store when "his leg gave out" because he had walked too much (probably just before Christmas in 2001). He injured himself generally in the fall, but most specifically, he broke his wrist which eventually required surgical treatment. He sought treatment in Newcastle at that time, but no perceptible injury was diagnosed. However, when he continued to experience pain in his wrist and hip, he sought treatment from John Barrasso, M.D., a Casper orthopedic surgeon. Dr. Barrasso provided treatment for Nagle beginning immediately following his 1987 injury and until the time of the hearing on this matter. Nagle reported that he had no problems with his wrist prior to that fall.

DISCUSSION

Permanent Total Disability under the Odd Lot Doctrine

[¶ 11] This case involves issues which we have...