Jackson v. State ex rel. Wyoming Workers' Compensation Div.

• Decision Date: 06 February 1990
• Docket Number: No. 89-103,89-103
• Parties: In the Matter of the Workers' Compensation Claim of Gordon JACKSON, Appellant (Employee-Claimant), v. STATE of Wyoming, ex rel., WYOMING WORKERS' COMPENSATION DIVISION, Appellee (Objector-Defendant).
• Court: Wyoming Supreme Court

Page 874

786 P.2d 874

In the Matter of the Workers' Compensation Claim of Gordon JACKSON, Appellant (Employee-Claimant), v. STATE of Wyoming, ex rel., WYOMING WORKERS' COMPENSATION DIVISION, Appellee (Objector-Defendant).

No. 89-103.

Supreme Court of Wyoming.

Feb. 6, 1990.

Richard H. Honaker (argued) and David A. Hampton of Honaker & Hampton, Rock Springs, for appellant.

Joseph B. Meyer, Atty. Gen., Ron Arnold and Robert A. Nicholas, Senior Asst. Attys. Gen. (argued), for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

CARDINE, Chief Justice.

This appeal concerns the propriety of a summary judgment issued by an administrative hearing officer in a worker's compensation case. The summary judgment denying appellant Gordon Jackson's application for modification was, upon Jackson's petition for review, affirmed by the district court. Because we find such summary adjudication fails to comport with the procedures statutorily mandated for worker's compensation cases and, therefore, exceeds the statutory authority of the office of independent hearing officers, we reverse the decision of the district court and remand to the administrative agency for a full hearing.

BACKGROUND

On December 30, 1980, Jackson slipped and twisted his neck while working for Stansbury Coal Company at a mine north of Reliance, Wyoming. He applied for and received temporary total disability compensation for approximately 21 months following the accident. Dr. Earl Plunkett, the first of many physicians to examine Jackson during that period, informed the Wyoming Worker's Compensation Division (Division) in July 1981 that he could not, at that time, determine whether Jackson would suffer any permanent disability from the accident. He noted, however, that Jackson's participation in physical therapy was greatly encumbered by continuing pain and recommended that he be treated by the University of Utah Pain Clinic. Jackson's employer encouraged those rehabilitative efforts and asked the Division to suspend any permanent disability determinations until treatment at the pain clinic was completed.

The treating and examining physicians at the pain clinic found that Jackson's condition was deteriorating due to the lack of a sustained exercise program and indicated that underlying psychological difficulties may have contributed to his inability to follow such a program. They suggested that his potential for recovery, and accordingly the accuracy of any prognosis regarding the extent of his permanent disability, depended largely on whether or not these psychological problems could be overcome. To that end, it was recommended that Jackson undergo examination by the Stress Management and Biofeedback Institute of Wyoming (Institute) in Cheyenne.

During June and July 1982, personnel at the Institute examined Jackson and concluded that his traumatic injury had developed into chronic pain syndrome. The severe pain in his neck and right shoulder and arm could not be alleviated even by strong narcotics, causing Jackson to experience continual stress and depression. As a result, he had become unwilling or unable to use his right arm. While the physicians at the Institute did not consider him, under those conditions, to be a good candidate for rehabilitation, they withheld opinion as to any permanent disability and strongly suggested Jackson receive psychological counselling.

After reviewing the Institute's report, Jackson's employer agreed to a program of counselling combined with the continued exercise therapy but concluded that Jackson's recovery had stabilized sufficiently to warrant the termination of temporary total disability compensation and to afford the opportunity to make a preliminary determination of his permanent disability. The Division ordered a disability evaluation and, on October 22, 1982, awarded Jackson compensation for permanent partial disability, rated at 10 percent physical impairment of the whole body. It is clear from the record that the Division did not consider that action to constitute a determination of whether Jackson was vocationally disabled.

In early 1985, Jackson sought to modify that permanent partial disability award to 54 percent of the whole body, based on an evaluation by orthopedic surgeon Dr. Ross McNaught. In two letters, dated July 29, 1983, and November 21, 1983, McNaught observed, as had the physicians who previously examined Jackson, that Jackson was at the time of examination completely unable More than two years later, between June and September 1987, Jackson contacted the Division, complaining that he had been unfairly denied benefits by the actions of both the Division and his former attorney. He claimed total vocational disability and announced his intent to seek further compensation. He was told, in response, that the Division had "never been advised that [Jackson was] 100% totally disabled from [his] injury only." On January 6, 1988, Jackson filed a claim for permanent total disability compensation, and the Division objected. The hearing officer set a contested case hearing in the matter for October 6, 1988. The Division moved for summary judgment on September 1, 1988.

to engage in heavy work due to chronic pain, despite some prospect for improvement. Accordingly, McNaught avoided any prognosis relating to the vocational component of Jackson's disability and based his 54 percent impairment rating solely on the loss of mobility in his upper extremities. The Division granted Jackson a modification award on March 11, 1985.

In opposition to that motion, Jackson submitted two letters from Dr. McNaught, dated December 3, 1987, and September 16, 1988, concerning his prior and present evaluations of Jackson's condition. The letters outlined Jackson's history of conservative treatment and the worsening of his condition despite his efforts at rehabilitation through exercise and heat treatments. McNaught stated that Jackson now suffered a 60 percent physical impairment of the whole body and was 100 percent vocationally disabled. He explained that his earlier rating of Jackson's condition had been based solely on the loss of mobility suffered between Jackson's accident and the examination, and that, in deference to a pending assessment of his prospects for rehabilitation, no consideration had been given to Jackson's ultimate vocational disability. McNaught's "wait and see" attitude with respect to his earlier disability evaluation was consistent with the approach taken by both the University of Utah Pain Clinic and the Stress Management and Biofeedback Institute of Wyoming, and which had been implicitly approved by Jackson's employer and the Division. All prior diagnostic efforts concluded that, at the time of the examination, Jackson could not work. However, they also concluded that a final evaluation of his permanent vocational disability should await additional efforts at physical, psychological and vocational rehabilitation and a subsequent evaluation of the potential success of those efforts. The history of the employer's and the Division's acquiescence to such advice appears to reflect the good judgment that our worker's compensation scheme seeks to rehabilitate injured workers at least as much as it seeks to compensate.

The Division supported its summary judgment motion largely through the statements of Jackson's primary physician, Dr. Glen Sheppard, which indicated that, at least since the time of the 1985 permanent partial disability award, Jackson had always been totally disabled. The record suggests that the hearing officer considered the deposition testimony of Dr. Sheppard. While it did not, however, contain a copy of that deposition, it did contain a number of letters from the doctor. We have been afforded the opportunity to examine that deposition only due to its inclusion as an appendix to the Division's briefs. Although we make no determination as to whether such evidence served as a basis for the hearing officer's decision, we do observe that, had it been properly before him, he would have been forced to note that Sheppard was a general practitioner, not an orthopedist, and that he had only a passing familiarity with the manner in which disability ratings were made, never having made such a determination himself. The record clearly shows, however, that neither Sheppard, nor any physician other than McNaught, performed or purported to perform a disability evaluation on Jackson which served as the basis of a worker's compensation award.

The hearing officer concluded that Jackson had failed to establish the existence of any factual issue concerning the grounds necessary for a modification of his prior award, and granted summary judgment to

                the Division. 1  On March 29, 1989, the district court affirmed
                

DISCUSSION

When the Division objected to his application to modify the earlier disability award, Jackson became entitled to have the matter determined by the contested case procedures of the Wyoming Administrative Procedure Act (WAPA). W.S. 27-14-602(b) (June 1987 Repl.) states in pertinent part:

"If either the division or the employer object to the right of the employee to receive compensation, as to the amount of compensation or to amounts or procedures claimed for medical and health care, or at the request of the employee, the case shall be immediately referred to a hearing examiner who shall set the case for hearing at the earliest opportunity. The case shall be determined by a hearing examiner following the contested case procedures of the Wyoming Administrative Procedure Act."

We have frequently explained that a basic purpose of the WAPA is to assure that controverted issues underlying contested cases will be fully developed before agency fact finders. A record of material and substantial evidence must be created so that a reviewing court can determine whether such factual development occurred or whether, instead, the agency's actions were based on...