Rodriguez v. State ex rel. Dep't of Workforce Servs.

Decision Date30 December 2022
Docket NumberS-22-0131
Citation522 P.3d 164
Parties Fernando RODRIGUEZ, Appellant (Petitioner), v. STATE of Wyoming, EX REL. DEPARTMENT OF WORKFORCE SERVICES, WORKERS’ COMPENSATION DIVISION, Appellee (Respondent).
CourtWyoming Supreme Court

Representing Appellant: Herbert K. Doby, Torrington, Wyoming.

Representing Appellee: Bridget Hill, Wyoming Attorney General; Mark Klaassen, Deputy Attorney General; Peter Howard, Senior Assistant Attorney General; Holli J. Welch, Senior Assistant Attorney General.


FOX, Chief Justice.

[¶1] Fernando Rodriguez suffered a left wrist and right knee injury after falling from a truck in a 2007 work accident. After years of treatment, he claimed his pain persisted and spread throughout his body, leaving him unable to work. He applied for permanent total disability benefits under the odd-lot doctrine in 2019, which the Department of Workforce Services denied. After a contested case hearing, the Medical Commission upheld the denial, finding Mr. Rodriguez did not meet his burden to prove a degree of obvious physical impairment. The district court affirmed as do we.


[¶2] Mr. Rodriguez argues two issues on appeal which we rephrase:

1. Was there substantial evidence to support the Commission's determination that Mr. Rodriguez failed to show his degree of obvious physical impairment, coupled with other facts, qualified him for odd-lot treatment?
2. Were the Commission's credibility determinations arbitrary and capricious?

[¶3] Mr. Rodriguez injured his left wrist, left shoulder, and right knee after falling out of a truck bed while employed at Gregory & Cook Construction in 2007. Mr. Rodriguez had two wrist surgeries, but was released to light-duty work within a few days of his first surgery, with lifting restrictions on his left wrist. Mr. Rodriguez did not return to work despite his employer's accommodations and was terminated weeks later.

[¶4] Mr. Rodriguez applied for temporary disability benefits and underwent two impairment ratings for his injuries, which assigned him a two- to three-percent impairment rating. He was awarded temporary partial disability and temporary total disability benefits between November 2007 and April 2008 for injuries to his left wrist, left shoulder, and right knee. The Medical Commission (Commission) determined his other complaints; injuries to his head, neck, face, back, and heart, were unrelated to his workplace injury and therefore not compensable.

[¶5] In the following months and years, Mr. Rodriguez continued to report pain throughout his body. He has not worked since the accident and has not looked for work. He has consistently seen Dr. Harlan Ribnik, a pain specialist, for pain management. Despite extensive testing, no objective medical evidence of injury was found to support Mr. Rodriguez's complaints of pain.

[¶6] In August of 2019, Mr. Rodriguez applied for permanent total disability (PTD) benefits under the odd-lot doctrine. In his application, he reported he was unable to work because standing, sitting, or walking caused him extensive pain and he could not lift, bend over, or concentrate. Mr. Rodriguez is a fifty-three-year-old Mexican immigrant who lives in Rawlins, Wyoming. He speaks limited English, has a sixth-grade education, and has worked full-time in labor-intensive jobs since he was fifteen years old. Mr. Rodriguez asserts, due to his injury and limited qualifications, he is unable to work in the Rawlins community and thus qualified for odd-lot treatment.

[¶7] The Department of Workforce Services, Workers’ Compensation Division (Division) denied Mr. Rodriguez's PTD application. He requested a hearing before the Medical Commission which upheld the denial. The Commission concluded Mr. Rodriguez "failed to show by a preponderance of evidence that ‘the degree of obvious physical impairment, coupled with other facts, such as mental capacity, education, training, or age’ qualify him for odd-lot treatment." He appealed the ruling to the district court which also affirmed the Commission's denial. Mr. Rodriguez now appeals to this Court.


[¶8] We review the appeal of an administrative action without deference to the district court's conclusions. Ross v. State ex rel. Dep't of Workforce Servs. , 2022 WY 11, ¶ 8, 503 P.3d 23, 27 (Wyo. 2022) (citing Mirich v. State ex rel. Bd. of Trs. of Laramie Cnty. Sch. Dist. Two , 2021 WY 32, ¶ 15, 481 P.3d 627, 632 (Wyo. 2021) ). An agency action may be set aside under certain circumstances:

(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:
(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.

Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2021).

[¶9] A worker's compensation claimant has the burden to prove all essential elements of a claim by a preponderance of the evidence. Ross , 2022 WY 11, ¶ 9, 503 P.3d at 28 (citing Matter of Worker's Comp. Claim of Vinson , 2020 WY 126, ¶ 28, 473 P.3d 299, 309 (Wyo. 2020) ). When both parties submit evidence, we apply the substantial evidence test to factual findings, which requires this Court to examine the entire record for "relevant evidence which a reasonable mind might accept in support of the agency's conclusions." Id. (quoting Camacho v. State ex rel. Dep't of Workforce Servs., Workers’ Comp. Div. , 2019 WY 92, ¶ 23, 448 P.3d 834, 843 (Wyo. 2019) ). The agency may disregard certain evidence if it explains its reasons for doing so based on credibility determinations. Boylen v. State ex rel. Dep't of Workforce Servs., Workers’ Comp. Div. , 2022 WY 39, ¶ 8, 506 P.3d 765, 769 (Wyo. 2022) (citing Hood v. State ex rel. Dep't of Workforce Servs., Workers’ Comp. Div. , 2016 WY 104, ¶ 14, 382 P.3d 772, 776 (Wyo. 2016) ).

[¶10] This Court will not substitute the agency's judgment with its own unless the agency's decision is "contrary to the overwhelming weight of the evidence on record." Watkins v. State ex rel. Wyo. Med. Comm'n , 2011 WY 49, ¶ 16, 250 P.3d 1082, 1086 (Wyo. 2011). We also review an agency decision under the arbitrary and capricious standard to catch "potential mistakes such as inconsistent or incomplete findings of fact[.]" In re Pickens , 2006 WY 54, ¶ 11, 134 P.3d 1231, 1235 (Wyo. 2006) (quoting Padilla v. State ex rel. Wyo. Workers’ Safety & Comp. Div. , 2004 WY 10, ¶ 6, 84 P.3d 960, 962 (Wyo. 2004) ).

[¶11] We review an agency's conclusions of law de novo. Ross , 2022 WY 11, ¶ 11, 503 P.3d 23, 29 (citing Triplett v. State ex rel. Wyo. Workers’ Safety & Comp. Div. , 2021 WY 118, ¶ 35, 497 P.3d 903, 911 (Wyo. 2021) ).


[¶12] Mr. Rodriguez argues he is entitled to PTD benefits under the odd-lot doctrine. The doctrine allows a claimant who is not totally incapacitated but is so handicapped he "will not be employed regularly in any well[-]known branch of the labor market" to receive PTD benefits. Ross , 2022 WY 11, ¶ 20, 503 P.3d at 30 (quoting Schepanovich v. U.S. Steel Corp. , 669 P.2d 522, 525 (Wyo. 1983) ). However, the claimant must demonstrate he is incapacitated "from performing work at any gainful occupation for which [he] is reasonably suited by experience or training." Id. The claimant must make a prima facie showing: 1) he was disabled by a work-related injury and is now unable to work at his previous job; and 2) " ‘the degree of obvious physical impairment, coupled with other facts, such as mental capacity, education, training, or age’ qualify him for odd[-]lot treatment." Pickens , 2006 WY 54, ¶ 14, 134 P.3d at 1236 (quoting City of Casper v. Bowdish , 713 P.2d 763, 765 (Wyo. 1986) ).

I. Substantial evidence supported the Commission's denial.

[¶13] It is undisputed Mr. Rodriguez was unable to return to his previous heavy-labor job and therefore the first prong is met. The dispositive issue then, is whether substantial evidence supported the Commission's determination that Mr. Rodriguez was not eligible for odd-lot treatment because he failed to show an ascertainable degree of obvious physical impairment. To satisfy this prong, a claimant must show: 1) he has a degree of obvious physical impairment; and 2) that degree of obvious physical impairment, coupled with other factors, make him de facto unemployable. See Stallman v. State ex rel. Wyo. Workers’ Safety & Comp. Div. , 2013 WY 28, ¶ 39, 297 P.3d 82, 93 (Wyo. 2013).

A. The Commission's Factual Findings.

[¶14] After an extensive review of medical testimony, records, and reports, the Commission concluded "that there is no objective evidence by which to determine the ‘degree of obvious physical impairment.’ " We review the record as a whole for substantial evidence to support that conclusion.

1. Three IMEs find two- to three-percent impairment rating.

[¶15] Mr. Rodriguez had three Independent Medical Evaluations (IMEs) that determined his impairment rating was between two and three percent and he could return to the workforce in some capacity.

Dr. Kaplan

[¶16] Dr. Michael Kaplan conducted the first IME in April of 2008, approximately six months after Mr. Rodriguez's injury. He reviewed all of Mr. Rodriguez's medical history including his complaints of pain in his wrist,...

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