Middlemass v. State Ex Rel. Wyo. Workers' Safety, S–11–0007.

• Decision Date: 11 August 2011
• Docket Number: No. S–11–0007.,S–11–0007.
• Citation: 2011 WY 118,259 P.3d 1161
• Parties: Carol J. MIDDLEMASS, Appellant (Petitioner),v.STATE of Wyoming ex rel. WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).
• Court: Wyoming Supreme Court

259 P.3d 1161

2011 WY 118

Carol J. MIDDLEMASS, Appellant (Petitioner),

v.STATE of Wyoming ex rel. WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).

No. S–11–0007.

Supreme Court of Wyoming.

Aug. 11, 2011.

Representing Appellant: Matthew D. Winslow of Keegan & Winslow, P.C., Cody, Wyoming.Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General; Kelly Roseberry, Assistant Attorney General.Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.KITE, Chief Justice.

[¶ 1] Carol J. Middlemass appeals from the district court's affirmance of the Office of Administrative Hearings (OAH) decision upholding the Wyoming Workers' Safety and Compensation Division's (Division) denial of her request for worker's compensation benefits for an injury to her shoulder. She claims the OAH's determination that she failed to meet her burden of proving the injury resulted from her work activities is not supported by substantial evidence and the OAH erred by ruling that medical evidence was necessary to establish the cause of her shoulder injury.

[¶ 2] We affirm.

ISSUES

[¶ 3] Although Ms. Middlemass articulates the issues differently, the issues we must decide are:

1. Is there substantial evidence to support the hearing examiner's conclusion that Ms. Middlemass did not meet her burden of proving that her shoulder injury was caused by her work activities?

2. Did the OAH correctly conclude that expert medical evidence was necessary to establish causation? ¹

FACTS

[¶ 4] Ms. Middlemass was involved in a serious car accident in 1987. She suffered many injuries, including a broken right shoulder. Ms. Middlemass spent two to three months in the hospital and then underwent several months of physical therapy. She recovered and was able to use her shoulder normally.

[¶ 5] Ms. Middlemass was a packer for Y–Tex Corporation in Cody, Wyoming. Her job was to retrieve newly molded livestock ear tags from a conveyor belt, place insecticide tabs in the ear tags, fill plastic bags with twenty ear tags, seal the bags and place the bags in a box for shipping. She sat on a swiveling chair and the work area was set up in a semi-circle around her. Ms. Middlemass stated that on February 12, 2009, she injured her right shoulder when she reached for some tags. She continued to work until shortly before her shift ended, but stated that she was in significant pain. The next day she was unable to work because of the pain. Ms. Middlemass was examined at an urgent care center and referred to orthopedist, Jimmie Biles, M.D.

[¶ 6] At Dr. Biles' office, Ms. Middlemass was seen by Mary Phillips, an orthopedic specialty nurse practitioner. Ms. Middlemass underwent an MRI which showed three areas of pathology—a complete tear of the supraspinatus at the top part of the rotator cuff; a partial tear of the infraspinatus at the back part of the rotator cuff; and a tear of the labrum, the cartilage inside the shoulder joint around the socket.

[¶ 7] Ms. Middlemass filed an injury report and applied for worker's compensation benefits, but the Division denied her claim due to her preexisting condition from the 1987 automobile accident. Ms. Middlemass objected and the Division referred the matter to the OAH for a contested case hearing. At the hearing, Ms. Middlemass, her employer, and the Division presented evidence, including the deposition testimony of Dr. Biles. Ms. Middlemass conceded that the supraspinatus and labrum tears were attributable to her preexisting condition and focused on obtaining worker's compensation coverage for the infraspinatus tear.

[¶ 8] The hearing examiner issued a decision upholding the Division's denial of Ms. Middlemass' claim. He concluded that she had failed to meet her burden of proving that the infraspinatus tear was caused by her work activities. In particular, he stated that, because of her preexisting right shoulder condition, causation needed to be established by medical evidence and Dr. Biles was equivocal in his testimony about the cause of the infraspinatus tear and had incorrect information about the circumstances of her February 2009 injury.

[¶ 9] Ms. Middlemass filed a petition for review with the district court, which affirmed the OAH decision. She then appealed to this Court.

STANDARD OF REVIEW

[¶ 10] When an appeal is taken from a district court's review of an administrative agency's decision, we consider the case as if it had come directly from the administrative agency without giving any deference to the district court's decision. Dutcher v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2010 WY 10, ¶ 9, 223 P.3d 559, 561 (Wyo.2010); Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 8, 188 P.3d 554, 557 (Wyo.2008). Our review is governed by Wyo. Stat. Ann. § 16–3–114(c) (LexisNexis 2011):

(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.

[¶ 11] In accordance with § 16–3–114(c), we review the agency's findings of fact by applying the substantial evidence standard. Dale, ¶ 22, 188 P.3d at 561. Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Bush v. State ex rel. Wyo. Workers' Comp. Div., 2005 WY 120, ¶ 5, 120 P.3d 176, 179 (Wyo.2005) (citation omitted). See also, Kenyon v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2011 WY 14, ¶ 11, 247 P.3d 845, 849 (Wyo.2011). “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.” Kenyon, ¶ 11, 247 P.3d at 849, quoting Bush, ¶ 5, 120 P.3d at 179.

[¶ 12] Reviewing an agency's determination that the claimant did not satisfy her burden of proof, we apply the following standard:

If the hearing examiner determines that the burdened party failed to meet his burden of proof, we will decide whether there is substantial evidence to support the agency's decision to reject the evidence offered by the burdened party 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 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. 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.

Dale, ¶ 22, 188 P.3d at 561 (citations omitted).

[¶ 13] “ ‘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.’ ” Kenyon, ¶ 13, 247 P.3d at 849, quoting Moss v. State ex rel. Wyo. Workers' Comp. Div., 2010 WY 66, ¶ 11, 232 P.3d 1, 4 (Wyo.2010); Dale, ¶ 26, 188 P.3d at 561–62.

DISCUSSION

[¶ 14] A worker's compensation claimant has the burden of proving all of the essential elements of her claim by a preponderance of the evidence. State ex rel. Wyo. Workers' Safety & Comp. Div. v. Slaymaker, 2007 WY 65, ¶ 13, 156 P.3d 977, 981 (Wyo.2007); Sanchez v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2006 WY 64, ¶ 7, 134 P.3d 1255, 1257 (Wyo.2006). “This burden includes establishing the cause of the condition for which compensation is claimed and proving that the injury arose out of and in the course of employment.” Hanks v. City of Casper, 2001 WY 4, ¶ 6, 16 P.3d 710, 711 (Wyo.2001). See also, State ex rel. Wyo. Workers' Comp. Div. v. Espinoza, 924 P.2d 979, 981 (Wyo.1996). Preexisting conditions are excluded from the definition of compensable injury. Wyo. Stat. Ann. § 27–14–102(a)(xi)(F) (LexisNexis 2011).

[¶ 15] Nevertheless, an employee who has a pre-existing condition may still recover if her “employment aggravated, accelerated, or combined with the disease or infirmity to produce the death or disability for which compensation is sought.” Dutcher, ¶ 14, 223 P.3d at 562, quoting Lindbloom v. Teton Int'l, 684 P.2d 1388, 1389 (Wyo.1984). “ ‘To prove aggravation of a preexisting condition, a claimant must demonstrate by a preponderance of the evidence that the work contributed to a material degree to the aggravation of the condition.’ ” Dutcher, ¶ 15, 223 P.3d at 562, citing Slaymaker, ¶ 14, 156 P.3d at 981–82.

[¶ 16] The OAH reached the following conclusions regarding the evidence of the cause of Ms. Middlemass' shoulder injury:

19. As Claimant concedes, she has had for a substantial period of time a rotator cuff injury consisting of a full thickness tear of the supraspinatus muscle-tendon and a long standing cartilage abnormality inside the shoulder joint itself, all quite obviously stemming from the 1987 motor vehicle accident. The question becomes whether the partial tear of the infraspinatus can be said to have been...