Palmer v. State ex rel. Wyo. Workers' Comp.

• Decision Date: 08 September 2008
• Docket Number: No. S-07-0244.,S-07-0244.
• Citation: 2008 WY 105,192 P.3d 125
• Parties: In the Matter of the Worker's Compensation Claim of Roberta J. PALMER, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).
• Court: Wyoming Supreme Court

192 P.3d 125

2008 WY 105

In the Matter of the Worker's Compensation Claim of Roberta J. PALMER, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).

No. S-07-0244.

Supreme Court of Wyoming.

September 8, 2008.

Representing Appellant: David M. Gosar, Gosar Law Office, Jackson, Wyoming.

Representing Appellee: Bruce A. Salzburg, Attorney General; John William Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; Kristi Marie Radosevich, Assistant Attorney General.

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

BURKE, Justice.

[¶1] In 1998, Roberta Palmer was diagnosed with degenerated spinal disks in her lower back. She received various medical and chiropractic treatments, but chose not to undergo surgery when that was recommended by her doctor. In 2003, Ms. Palmer injured her back while at work. She received medical treatments and eventually surgery was performed on her back. The Wyoming Workers' Safety and Compensation Division denied her request for benefits, taking the position that her back problems were preexisting, and therefore not compensable. Ms. Palmer requested a hearing, and the hearing examiner determined that she had sustained a compensable workplace injury affecting part of her back, but that her other degenerative back problems were preexisting and therefore not compensable. Ms. Palmer has appealed that decision. We affirm in part and reverse in part.

ISSUES

[¶2] Ms. Palmer presents three issues, which we consider in this order:

1. Does substantial evidence support the hearing examiner's decision awarding partial benefits and/or is the decision arbitrary and capricious?

2. Did the Office of Administrative Hearings err as a matter of law when it apportioned Ms. Palmer's injury between her preexisting condition and the new injury caused by her workplace accident?

3. Did the Office of Administrative Hearings err as a matter of law by failing to apply the ancillary treatment principle to award full benefits in this case?

FACTS

[¶3] In January of 1998, Ms. Palmer slipped on some ice and fell, causing pain in her back and right groin. Upon seeking treatment, Ms. Palmer was diagnosed with a degenerative spinal condition affecting her disks at the L3-L4, L4-L5, and L5-S1 levels, along with an annular tear at L3-L4. Ms. Palmer received medical and chiropractic treatments over the following months. In August of that year, her treating physician, Dr. Mary Neal, recommended spinal fusion surgery at the L3 through S1 levels. For various reasons, Ms. Palmer chose not to have the surgery.

[¶4] Later that year, Ms. Palmer received a chiropractic "bone traction" treatment. She testified that this treatment largely relieved her back problems, although her chiropractor, Dr. Christopher Koch, testified that Ms. Palmer sought additional treatments in 2002 and 2003 relating, at least in part, to pain in her lower back.

[¶5] On the morning of May 30, 2003, Ms. Palmer injured her lower back lifting inventory at the convenience store where she worked. She left work early and, when the pain continued through the afternoon, sought treatment from Dr. Koch. He advised her to use an over-the-counter anti-inflammatory, to apply ice packs, and to rest at home. The pain persisted, however, and when Ms. Palmer went back to Dr. Koch, he referred her to the hospital emergency room.

[¶6] At the hospital, Ms. Palmer was given pain medication. When that proved ineffective in relieving her pain, she was admitted to the hospital for further evaluation and treatment. An MRI indicated several spinal conditions, including "advanced degenerative changes in her lumbar spine." Over the next several months, Ms. Palmer was treated with varying degrees of success by spinal injections and other medications. Although Ms. Palmer continued to suffer pain in her lower back and right leg, Dr. Neal this time recommended against surgery.

[¶7] In April of 2004, Ms. Palmer obtained a second opinion from Dr. Narotzky, a neurosurgeon. He diagnosed many of the same conditions reflected in Ms. Palmer's earlier medical records, along with a new injury that he noted as "probable foraminal disk herniation at the L4-L5 level compressing the L4 nerve root at the right side." Dr. Narotzky concluded that this compression was causing Ms. Palmer's pain and the weakness in her lower back and right leg. He recommended surgery. In July of 2004, Dr. Narotzky performed the surgery, during which he was able to confirm his diagnosis that Ms. Palmer had suffered a herniated disk at level L4-L5. Significantly, the surgery was not limited to fusion at the L4-L5 level where the disk was herniated, but included fusion at the level above, L3-L4, and at the level below, L5-S1.

[¶8] The Wyoming Workers' Safety and Compensation Division denied benefits for Ms. Palmer's injury, maintaining that her condition was preexisting and not compensable. Ms. Palmer contested the Division's denial of benefits, and the Office of Administrative Hearings heard her case in July of 2005. The hearing examiner admitted deposition testimony from Drs. Neal, Narotzky, and Koch, and heard live testimony from Ms. Palmer, her husband, and a representative of Ms. Palmer's employer. Ms. Palmer continued to assert that she was entitled to compensation for all of her medical bills, on the basis that her condition was caused by her work-related injury. The Division maintained that Ms. Palmer's condition was not compensable because it was due entirely to a preexisting condition. The hearing examiner reached a position somewhere between the parties' contentions. His final order includes these determinations:

1. The lower lumbar condition at L4-L5, specifically the foraminal herniation, is a work related injury under the Wyoming Workers' Compensation Act. [Ms. Palmer] is awarded benefits in accordance with the Wyoming Workers' Compensation Act, Rules and Regulations and Fee Schedules of the Workers' Safety and Compensation Division.

2. The degenerative condition at levels L3-L4 and L5-S1 and the annular tear at L3-L4 ... is not a work related injury under the Wyoming Workers' Compensation Act. [Ms. Palmer]'s claim for benefits is denied.

The district court affirmed the hearing examiner's decision, and Ms. Palmer timely appealed to this Court.

STANDARD OF REVIEW

[¶9] We review administrative agency decisions pursuant to Wyo. Stat. Ann. § 16-3-114(c)(ii) (LexisNexis 2007), which requires us to:

(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.

We recently reiterated that under "the plain language of the statute, reversal of an agency finding or action is required if it is `not supported by substantial evidence.'" Dale v S & S Builders, LLC, 2008 WY 84, ¶ 21, 188 P.3d 554, 561 (Wyo.2008). Substantial evidence is "relevant evidence which a reasonable mind might accept" as supporting the agency's decision. Id., ¶ 11, 188 P.3d at 558. "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." Id., ¶ 22, 188 P.3d at 561. An agency's conclusions of law are reviewed de novo, however, and are affirmed only if they are in accordance with the law. Id., ¶ 26, 188 P.3d at 561-62.

DISCUSSION

[¶10] To be compensable under the Wyoming Workers' Compensation Act, an injury must arise "out of and in the course of employment while at work." Wyo. Stat. Ann. § 27-14-102(a)(xi). Benefits are not available for an "injury or condition preexisting at the time of employment with the employer against whom a claim is made." Id., § 27-14-102(a)(xi)(F). The hearing examiner found that Ms. Palmer's foraminal herniation at level L4-L5 was a work-related injury, and therefore compensable. He found that the degenerative condition at levels L3-L4 and L5-S1 was not work-related, but preexisting, and therefore not compensable.

[¶11] Whether an employee's injury is work-related or preexisting is a question of fact. Taylor v. State ex rel. Wyoming Workers' Safety & Comp. Div., 2005 WY 148, ¶ 9, 123 P.3d 143, 146 (Wyo.2005). Accordingly, we will affirm the hearing examiner's findings if they are supported by substantial evidence, and set them aside if they are not. Our review of the record indicates that there is substantial evidence to sustain the hearing examiner's findings.

[¶12] The evidence of record establishes that Ms. Palmer suffered from preexisting back problems. She had been diagnosed in 1998 with degenerative disks at levels L3-L4, L4-L5, and L5-S1. Her back pain at that time was noted as "chronic," and she received numerous medical and chiropractic treatments for her back. As the hearing examiner accurately noted, both Dr. Neal and Dr. Narotzky "agree that [Ms. Palmer] had a degenerative disk disease ... prior to May 30, 2003." There is substantial evidence supporting the hearing examiner's determination that Ms. Palmer's degenerative disk condition was preexisting, not work-related, and not compensable for that reason.

[¶13] The evidence of record also establishes that Ms. Palmer's incident at work on May 30, 2003, resulted in injury to her back. Dr. Narotzky testified that an MRI indicated foraminal disk herniation at level L4-L5, along with the preexisting degenerative disk condition. He testified that the foraminal herniation was "clearly caused" by her work injury. According to Dr....