Leib v. State ex rel. Dep't of Orkforce Servs., Workers' Comp. Div.

• Court: Wyoming Supreme Court
• Writing for the Court: BURKE, Chief Justice.
• Citation: Leib v. State ex rel. Dep't of Orkforce Servs., Workers' Comp. Div., 373 P.3d 420, 2016 WY 53 (Wyo. 2016)
• Decision Date: 20 May 2016
• Docket Number: No. S–15–0235.,S–15–0235.
• Parties: In the Matter of the Worker's Compensation Claim of: Mary LEIB, Appellant (Petitioner), v. STATE of Wyoming, ex rel., DEPARTMENT OF WORKFORCE SERVICES, WORKERS' COMPENSATION DIVISION, Appellee (Respondent).

373 P.3d 420

2016 WY 53

In the Matter of the Worker's Compensation Claim of: Mary LEIB, Appellant (Petitioner)

v.STATE of Wyoming, ex rel., DEPARTMENT OF WORKFORCE SERVICES, WORKERS' COMPENSATION DIVISION, Appellee (Respondent).

No. S–15–0235.

Supreme Court of Wyoming.

May 20, 2016.

Representing Appellant: Ethelyn (Lynn) Boak, Cheyenne, Wyoming.

Representing Appellee: Peter K. Michael, Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Samantha Caselli, Assistant Attorney General.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

BURKE, Chief Justice.

[¶ 1] Appellant, Mary Leib, sought benefits from the Wyoming Workers' Compensation Division after she developed abscesses in her breasts. The Division denied the claim. Ms. Leib requested a contested case hearing, and the Medical Commission upheld the Division's determination after finding that she had not met her burden of proving that her condition was related to her employment. Ms. Leib appealed to the district court, which affirmed the Medical Commission's order. She challenges the district court's decision in this appeal. We affirm.

ISSUES

[¶ 2] Ms. Leib presents the following issues:

1. Did the Medical Commission in effect increase Appellant's burden of proof to an unsustainable standard of medical certainty by requiring the Appellant to identify the bacteria that caused her infection?

2. Did the Medical Commission give undue weight to the Division's expert witness?

FACTS

[¶ 3] Ms. Leib was employed as a maintenance worker for Laramie County Community College in Cheyenne, Wyoming. She began working on the grounds of the College in April 2012. As part of her duties as a groundskeeper, Ms. Leib was required to work with dirt that was mixed with untreated manure from livestock kept on campus and from traveling circus animals.

[¶ 4] In June 2012, approximately two weeks after she began planting flowers using the dirt and manure mixture, Ms. Leib experienced pain and swelling in both of her breasts. On June 18, she sought treatment at the emergency room. Ms. Leib was diagnosed with mastitis, an infection of the breast tissue, and treated with antibiotics and pain medication.

[¶ 5] Ms. Leib went back to work and continued to experience pain and swelling in her breasts. She returned to the emergency room on June 26 and was admitted to the hospital. This time, a breast surgeon performed an incision surgery to drain the abscesses in Ms. Leib's breasts and relieve swelling. A culture collected following her surgery indicated that Ms. Leib had a peptostreptococcus (commonly referred to as “strep”) bacterial infection.

[¶ 6] Ms. Leib returned to work on July 9 and continued to plant flowers with the dirt and manure mixture. Several weeks later, her breasts swelled again, causing her surgical incisions to split open. On August 8, 2012, she filed an injury report with the Workers' Compensation Division. She had a second incision and drainage surgery one week later. A subsequent culture indicated that several different types of peptostreptococcus bacteria were present.

[¶ 7] In September 2012, the Workers' Compensation Division denied Ms. Leib's claim for benefits. The Division found that her infections did not meet the definition of “injury” under the worker's compensation statutes and that she had not established her infections were the result of her employment. The Division referred the case to the Office of Administrative Hearings for a contested case hearing. The parties agreed that the case presented a medically complex issue, and the OAH transferred the case to the Medical Commission for a hearing.

[¶ 8] The Medical Commission held a contested case hearing on June 6, 2014. Ms. Leib's theory of her injury was that she developed her infection as a result of exposure to bacteria contained in the dirt and manure mixture at LCCC. Ms. Leib presented expert testimony via deposition from Dr. Howard Willis, a primary care physician and ER doctor. He testified that Ms. Leib's infection most likely occurred in the context of her employment. Dr. Willis' testimony was disputed by expert testimony from Dr. Mark Dowell, an infectious disease physician. He testified that there was no causal relationship between Ms. Leib's work and the abscesses in her breasts.

[¶ 9] Following the hearing, the Medical Commission issued a decision upholding the Division's final determination. The Commission concluded that Dr. Dowell was more credible than Dr. Willis:

The Medical Panel finds that the employee/claimant has not met her burden of proof in establishing that the workplace was the cause of her breast infections. Evidence was not provided that would credibly establish that the streptococcus was actually determined to exist in the dirt/manure that she was working with. As Dr. Dowell indicated, those organisms are found in a wide variety of locations, and cannot be specifically attributed to her workplace. In addition, we weighed the relative credibility and qualifications of the competing expert medical opinions in this matter and find that Dr. Dowell, as a board-certified infectious disease specialist, has far more credibility on these issues than Dr. Willis, who is far more generally trained as an osteopathic physician, and he does not carry the board certifications provided by Dr. Dowell.

We find that Dr. Dowell testified credibly, and indicated that under the circumstances, he could not attribute her medical condition to the workplace. Dr. Willis, on the other hand, is not board certified and has limited experience in the infectious disease field. Dr. Willis, much like Ms. Leib, placed exceptionally heavy weight on the temporal connection between the abscesses and the workplace, but failed to make a credible connection tying the two specifically together to the condition of the workplace. The offending manure/dirt pile was never tested or examined in any fashion. The creation, maintenance and makeup of any substance in the materials from the pile was never established.

Under the circumstances, with the burden of proof being Ms. Leib's in this matter, we find and conclude that the employee/claimant has failed to meet her burden of proof. There are simply too many possibilities of exposure outside the workplace to substantiate her claim that her condition was caused by and due to her workplace exposure. Therefore, the Final Determination of the Division of September 6, 2012, denying coverage for the care and treatment is hereby affirmed.

(Emphasis in original.) The district court upheld the Medical Commission's decision. This appeal followed.

STANDARD OF REVIEW

[¶ 10] When we consider an appeal from a district court's review of an administrative agency's decision, we review the case as though it had come directly from the administrative agency. Newman v. State ex rel. Dep't of Workforce Servs., 2015 WY 14, ¶ 8, 341 P.3d 1066, 1069 (Wyo.2015) (citing CalCon Mut. Mortg. Corp. v. State ex rel. Wyo. Dep't of Audit, 2014 WY 56, ¶ 6, 323 P.3d 1098, 1101 (Wyo.2014) ). Review of an administrative agency's action is governed by the Wyoming Administrative Procedure Act, which provides that we 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.

Wyo. Stat. Ann. § 16–3–114(c)(ii) (LexisNexis 2013).

[¶ 11] Pursuant to this statute, we review an administrative agency's findings of fact using the substantial evidence test. Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 22, 188 P.3d 554, 561 (Wyo.2008). Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's decision. Id., ¶ 11, 188 P.3d at 558. Findings of fact are supported by substantial evidence if, from the evidence in the record, this Court can discern a rational premise for the agency's findings. Middlemass v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2011 WY 118, ¶ 11, 259 P.3d 1161, 1164 (Wyo.2011). We defer to the hearing examiner's determination of witness credibility unless it is clearly contrary to the overwhelming weight of the evidence. Leavitt v. State ex rel. Wyo. Workers' Safety & Comp. Div.,

2013 WY 95, ¶ 18, 307 P.3d 835, 840 (Wyo.2013). As always, we review an agency's conclusions of law de novo, and “ ‘[w]e will affirm an agency's legal conclusion only if it is in accordance with the law.’ ” Dale, ¶ 26, 188 P.3d at 561–62 (quoting Diamond B Services, Inc. v. Rohde, 2005 WY 130, ¶ 12, 120 P.3d 1031, 1038 (Wyo.2005) ).

DISCUSSION

[¶ 12] A compensable injury is one “arising out of and in the course of employment[.]” Wyo. Stat. Ann. § 27–14–102(a)(xi) (LexisNexis 2013). In order to show that the compensable injury arises out of or in the course of employment, the worker's compensation claimant has the burden of proving each of the essential elements of the claim by a preponderance of the evidence, including a causal connection between the work-related incident and the injury. Stevens v. State ex rel. Dep't of Workforce Servs., 2014 WY 153, ¶ 35, 338 P.3d 921, 929 (Wyo.2014). The claimant must show the causal connection to a reasonable degree of medical probability. Typically, this requires expert medical testimony that it is more probable than not that the work contributed in a material fashion to the precipitation, aggravation, or acceleration of the injury. Id., ¶ 50 n. 6, 338 P.3d at 932 n. 6.

[¶ 13] In her first issue, Ms. Leib claims the Medical Commission improperly elevated her burden of proof by requiring her to identify the bacteria that caused her infection. Based on the Commission's...