McMillan v. State

• Decision Date: 05 June 2020
• Docket Number: S-19-0218
• Citation: 464 P.3d 1215
• Parties: Brent MCMILLAN, Appellant (Petitioner), v. STATE of Wyoming, EX REL. DEPARTMENT OF WORKFORCE SERVICES, WORKERS' COMPENSATION DIVISION, Appellee (Respondent).
• Court: Wyoming Supreme Court

464 P.3d 1215

Brent MCMILLAN, Appellant (Petitioner),

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

S-19-0218

Supreme Court of Wyoming.

June 5, 2020

Representing Appellant: Donna D. Domonkos, Domonkos Law Office, LLC, Cheyenne, Wyoming.

Representing Appellee: Bridget L. Hill, Wyoming Attorney General; Michael J. McGrady, Deputy Attorney General; JC Demers, Senior Assistant Attorney General; Kelly D. Mullen, Assistant Attorney General.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

BOOMGAARDEN, Justice.

[¶1] Brent McMillan sought workers' compensation benefits listing various symptoms he experienced while working for Unit Drilling Company. Doctors ultimately diagnosed Mr. McMillan with smoldering multiple myeloma

. The Wyoming Workers' Safety and Compensation Division (the Division) denied benefits because Mr. McMillan failed to establish a causal connection between his injury and employment.¹ The Medical Commission (the Commission) upheld the denial, rejecting the opinions of Mr. McMillan's medical experts. The district court affirmed the Commission's decision. We too affirm.

ISSUE

[¶2] Is the Commission's determination that Mr. McMillan failed to meet his burden under Wyo. Stat. Ann. § 27-14-603(a) for an injury occurring over a substantial period of time contrary to the overwhelming weight of the evidence?

FACTS

[¶3] Mr. McMillan worked for Unit Drilling Company for two and a half years—from mid-2011 until November 2013—as a "floor hand" on an oil rig in Sublette County, Wyoming. In that capacity, he "managed the drilling fluid" and helped maintain the rig. When handling dry chemicals, he wore a dust mask, a face shield, and safety glasses. He worked a 12-hour shift for 14 days in a row and then had 14 days off.

[¶4] In spring of 2013, Mr. McMillan visited his primary physician because he felt tired and achy. His physician attributed these symptoms to his age and job, as he was a 40-year-old working with 20-year-olds. Over the course of a couple weeks in November 2013, Mr. McMillan had three separate "episodes" at work. During the first episode in early November, he felt dizzy and nauseous; he also had a migraine and blurry vision. During the second episode a week later, he had severe abdominal pain and temporarily lost control of his legs, bladder, and bowels. During the third episode in mid to late November, he had muscle spasms, nausea, headache, blurred vision, numbness in his hands, arms, and feet, a burning sensation in his legs, and tremors. Mr. McMillan finished his two-week shift and sought medical treatment. A diagnosis proved elusive until spring of 2015, when Charles Petrunin, M.D., diagnosed him with smoldering multiple myeloma

.²

[¶5] In October 2015, Mr. McMillan filed a Report of Injury with the Division claiming he injured his entire body on November 13, 2013, while working for Unit Drilling Company. The report stated his injury consisted of nerve demyelination

, neuropathy, chronic pain, attack of the central nervous system, seizure-like symptoms and loss of bowel and bladder control. It further stated his doctors believed toxic chemical absorption and inhalation caused his injury. The Division denied benefits because Mr. McMillan did not submit evidence establishing a causal connection between his injury and employment as required by Wyo. Stat. Ann. § 27-14-603(a). Mr. McMillan objected and the Office of Administrative Hearings referred his claim to the Commission.

[¶6] The Commission held an evidentiary hearing in May 2018. In support of his claim, Mr. McMillan submitted hundreds of pages of medical records, and deposition transcripts from David Carpenter, M.D., Dr. Gillespie, and Dr. Petrunin. Mr. McMillan testified at the hearing. He generally asserted that his medical condition related to the high concentration of different chemicals released into the air during drilling and fracking, noting that during his last year of employment two fracking rigs were located within 800 feet of his oil rig and those workers wore hazardous material suits and respirators. In opposition, the Division relied on Mr. McMillan's deposition transcript, which revealed alternative sources of chemical exposure and possible explanations for some of his symptoms unrelated to his employment at Unit Drilling Company.

[¶7] The Commission "ultimately found the opinions of Drs. Carpenter, Gillespie, and Petrunin lacked expertise or lacked foundation[.]" In sum, the Commission determined Dr. Carpenter based his opinion on a study of air concentrations of volatile compounds near oil and gas production sites geographically distanced from those Mr. McMillan worked on. Dr. Gillespie admitted he "did not possess the requisite expertise to opine on the issue of causation[.]" And Dr. Petrunin's opinions "were medically sound but [ ] lacked an underlying factual basis as applied to [Mr. McMillan]." Having rejected those opinions, the Commission concluded Mr. McMillan failed to meet his burden of proof under Wyo. Stat. Ann. § 27-14-603(a)(i)–(iii) and upheld the Division's denial of benefits.³ The district court affirmed the Commission's decision. Mr. McMillan timely appealed.

STANDARD OF REVIEW

[¶8] "We review an administrative appeal as if it came directly from the administrative agency, giving no deference to the district court's ruling on the appeal." Boyce v. State ex rel. Dep't of Workforce Servs., Workers' Comp. Div. , 2017 WY 99, ¶ 20, 402 P.3d 393, 399 (Wyo. 2017) (citing Price v. State ex rel. Wyo. Dep't of Workforce Servs., Workers' Comp. Div. , 2017 WY 16, ¶ 7, 388 P.3d 786, 789 (Wyo. 2017) ). The Wyoming Administrative Procedure Act governs our review and requires we "[h]old unlawful and set aside agency action, findings and conclusions found to be ... [u]nsupported 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)(E) (LexisNexis 2019); Camacho v. State ex rel. Dep't of Workforce Servs., Workers' Comp. Div. , 2019 WY 92, ¶ 23, 448 P.3d 834, 843 (Wyo. 2019) (citation omitted) (where both parties present evidence, the substantial evidence test applies). "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." Boyce , ¶ 21, 402 P.3d at 399 (quoting Price , ¶ 7, 388 P.3d at 790 ). Because the Commission decided Mr. McMillan failed to meet his burden of proof,

we will decide whether there is substantial evidence to support the [Commission]'s decision to reject the evidence offered by [Mr. McMillan] by considering whether that conclusion was contrary to the overwhelming weight of the evidence in the record as a whole. If, in the course of its decision making process, the [Commission] 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 [Commission] could reasonably conclude as it did, based on all the evidence before it.

Id. ¶ 21, 402 P.3d at 399–400 (quoting Price , ¶ 7, 388 P.3d at 790 ).⁴

DISCUSSION

[¶9] Mr. McMillan contends the Commission's reasons for rejecting Dr. Carpenter's and Dr. Petrunin's causation opinion were not valid and, thus, the Commission's decision is contrary to the overwhelming weight of the evidence. He concedes the Commission rationally rejected Dr. Gillespie's opinion.

[¶10] The parties do not dispute Mr. McMillan's burden of proof. Mr. McMillan bore "the burden of proving the elements of [his] claim by a preponderance of the evidence." Sanchez v. State ex rel. Wyoming Workers' Safety & Comp. Div. , 2006 WY 64, ¶ 7, 134 P.3d 1255, 1257 (Wyo. 2006) (citation omitted). Because his injury occurred over a substantial period of time, Wyo. Stat. Ann. § 27-14-603(a) enhanced his burden. Id. ¶ 10, 134 P.3d at 1258 (citing Yenne-Tully v. Workers' Safety & Comp. Div., Dept. of Empl. , 12 P.3d 170, 172 (Wyo. 2000) ) (footnote omitted). Mr. McMillan had "to prove by competent medical authority that his claim arose out of and in the course of his employment [for Unit Drilling Company]" and he had "to prove by a preponderance of evidence that":

(i) There is a direct causal connection between the condition or circumstances under which the work is performed and the injury;

(ii) The injury can be seen to have followed as a natural incident of the work as a result of the employment;

(iii) The injury can fairly be traced to the employment as a proximate cause;

(iv) The injury does not come from a hazard to which employees would have been equally exposed outside of the employment; and

(v) The injury is incidental to the character of the business and not independent of the relation of employer and employee.

Wyo. Stat. Ann. § 27-14-603(a) (LexisNexis 2019).⁵ We have recognized that because these statutory requirements "are closely related," the same evidence often pertains to several elements. Sanchez , ¶ 10, 134 P.3d at 1258–59 (quoting Sinclair Trucking v. Bailey , 848 P.2d 1349, 1353 (Wyo. 1993), overruled on other grounds by Newman v. State ex rel. Wyo. Workers' Safety & Comp. Div. , 2002 WY 91, ¶ 24, 49 P.3d 163, 172 (Wyo. 2002) ).

[¶11] The Commission may disregard an expert medical opinion related to causation "if it ‘finds the opinion unreasonable, not adequately supported by the facts upon which the opinion is based, or based upon an incomplete or inaccurate medical history[.]’ " Boyce , ¶ 26, 402 P.3d at 400–01 (quoting Price , ¶ 15, 388 P.3d at 791–92 ). "In weighing the medical opinion testimony, the fact finder considers: (1) the opinion; (2) the reasons, if any, given for it; (3) the strength of it; and (4) the qualifications and credibility of the witness or witnesses...