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

• Docket Number: S-21-0155
• Decision Date: 25 January 2022
• Citation: 2022 WY 11
• Parties: TERRINA ROSS, Appellant (Petitioner), v. STATE OF WYOMING, ex rel., DEPARTMENT OF WORKFORCE SERVICES, WORKERS' COMPENSATION DIVISION, Appellee (Respondent).
• Court: Wyoming Supreme Court

1

2022 WY 11

TERRINA ROSS, Appellant (Petitioner), v. STATE OF WYOMING, ex rel., DEPARTMENT OF WORKFORCE SERVICES, WORKERS' COMPENSATION DIVISION, Appellee (Respondent).

No. S-21-0155

Supreme Court of Wyoming

January 25, 2022

Appeal from the District Court of Campbell County The Honorable Stuart S. Healy, III, Judge

Representing Appellant:

Corrie L. Lamb, Barney & Graham, LLC, Gillette, Wyoming.

Representing Appellee:

Bridget L. Hill, Attorney General; Mark A. Klaassen, Deputy Attorney General; Peter F. Howard, Senior Assistant Attorney General; Holli J. Welch, Senior Assistant Attorney General.

Before FOX, C.J., and DAVIS ^[*] , KAUTZ, BOOMGAARDEN, and GRAY, JJ.

FOX Chief Justice.

[¶1] Terrina Ross suffered a compensable injury to her left knee in 2007. She claimed that later injuries to her right knee ankles, and back were caused by the 2007 injury, and she requested the Department of Workforce Services, Workers' Compensation Division (Division) cover these injuries. She also applied for permanent total disability (PTD) benefits. The Division denied both requests. Ms. Ross requested a hearing before the Medical Commission (Commission), which upheld the denial. The district court affirmed. We also affirm.

ISSUES

[¶2] We rephrase the issues as:

1. Was there substantial evidence to support the Commission's finding that Ms. Ross's right knee, ankle, and back injuries were not second compensable injuries?

2. Was there substantial evidence to support the Commission's finding that Ms. Ross did not qualify for PTD benefits under the odd lot doctrine because her right knee, ankle, and back injuries were not causally related to her 2007 injury?

FACTS

[¶3] Ms. Ross injured her left knee while she was employed at Campbell County Health in 2007. The Division covered this injury and the four left knee surgeries that followed.

[¶4] Although she reported that her right knee was bothering her while recovering from surgery in 2007, she did not mention it again until 2016, when she reported that her right knee swelled, popped, and hurt when she put weight on it. An MRI showed that she had a tear in the meniscus in her right knee, so she had surgery to repair it. Around this time, Ms. Ross started to complain about back and ankle pain.

[¶5] Ms. Ross started seeing Dr. Mark Murphy for pain in both knees and ankles in 2017. She had a fifth surgery on her left knee. Soon after this surgery, Ms. Ross was diagnosed with neuropathy in her left leg, which caused a foot drop. As a result of the foot drop, Ms. Ross tripped on the sidewalk and fractured her left kneecap.

[¶6] One night in 2017, when she was walking in her kitchen, she bent her right knee at an awkward angle and immediately felt pain. She went to the emergency room, was sent home in a wheelchair, and had surgery on that knee a few months later. The Division covered the cost of the surgery.^[1] Since then, Ms. Ross has used the wheelchair whenever she leaves the house, and, when she feels tired, inside the house. Dr. Murphy did not prescribe the wheelchair, nor does he advocate her use of it. Ms. Ross's condition has gotten progressively worse since 2018, and her left leg muscles are deteriorating because she rarely walks. She testified that her legs and ankles swell if they are not elevated, that she cannot stand for more than ten minutes or walk more than twenty to thirty feet, and that she must constantly change position when sitting.

[¶7] Ms. Ross submitted requests to the Division to cover treatment for her right knee, ankles, and back. She also applied for PTD benefits. The Division denied her requests and application, and she requested a hearing. After a hearing, the Commission upheld the Division's denial of Ms. Ross's requests and PTD benefits. Ms. Ross appealed the Commission's ruling to the district court, which affirmed the ruling. Ms. Ross now appeals to this Court.

STANDARD OF REVIEW

[¶8] This Court reviews the appeal of an administrative action as if it had come directly from the agency, giving no deference to the district court's conclusions. 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) (quoting Sweetwater Cnty. Sch. Dist. No. One v. Goetz, 2017 WY 91, ¶ 23, 399 P.3d 1231, 1235 (Wyo. 2017)). Our review is limited by Wyo. Stat. Ann. § 16-3-114(c), which provides:

(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.

[¶9] "A workers' compensation claimant has the burden of proving all of the essential elements of [her] claim by a preponderance of the evidence." Matter of Worker's Comp. Claim of Vinson, 2020 WY 126, ¶ 28, 473 P.3d 299, 309 (Wyo. 2020) (quoting Middlemass v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2011 WY 118, ¶ 14, 259 P.3d 1161, 1165 (Wyo. 2011)). When both parties submit evidence, this Court will apply the substantial evidence test to fact findings. Camacho v. State ex rel. Dep't of Workforce Servs., Workers' Comp. Div., 2019 WY 92, ¶ 23, 448 P.3d 834, 843 (Wyo. 2019) (quoting Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 10, 188 P.3d 554, 558 (Wyo. 2008)). When reviewing findings of facts,

we examine the entire record to determine whether there is substantial evidence to support an agency's findings. If the agency's decision is supported by substantial evidence, we cannot properly substitute our judgment for that of the agency and must uphold the findings on appeal. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions. It is more than a scintilla of evidence.

Camacho, 2019 WY 92, ¶ 23, 448 P.3d at 843 (quoting Dale, 2008 WY 84, ¶ 11, 188 P.3d at 558).

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.

Watkins v. State ex rel. Wyo. Med. Comm'n, 2011 WY 49, ¶ 16, 250 P.3d 1082, 1086 (Wyo. 2011) (quoting Dale, 2008 WY 84, ¶ 22, 188 P.3d at 561). Our review does not turn on whether we agree with the outcome, but rather on whether the agency could reasonably conclude as it did based on all the evidence before it. McMillan v. State ex rel. Dep't of Workforce Servs., Workers' Comp. Div., 2020 WY 68, ¶ 8, 464 P.3d 1215, 1218 (Wyo. 2020) (quoting Boyce v. State ex rel. Dep't of Workforce Servs., Workers' Comp. Div., 2017 WY 99, ¶ 21, 402 P.3d 393, 399-400 (Wyo. 2017)).

[¶10] This Court applies the arbitrary and capricious standard as a "safety net" to catch other agency action that may have violated the Wyoming Administrative Procedure Act. Exaro Energy III, LLC v. Wyoming Oil & Gas Conservation Comm'n, 2020 WY 8, ¶ 11, 455 P.3d 1243, 1248-49 (Wyo. 2020) (quoting Rodgers v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2006 WY 65, ¶ 19, 135 P.3d 568, 575 (Wyo. 2006)). This standard will apply if the hearing officer "failed to admit testimony or other evidence that was clearly admissible, or failed to provide appropriate findings of fact or conclusions of law." Triplett v. State ex rel. Dep't of Workforce Servs., Workers' Comp. Div., 2021 WY 118, ¶ 35, 497 P.3d 903, 911 (Wyo. 2021) (quoting McIntosh v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2013 WY 135, ¶ 31, 311 P.3d 608, 616 (Wyo. 2013)).

[¶11] Finally, "[w]e review an agency's conclusions of law de novo and affirm only if its conclusions are in accordance with the law." Triplett, 2021 WY 118, ¶ 35, 497 P.3d at 911 (citing Wyo. Stat. Ann. § 16-3-114(c)(ii)(A)).

DISCUSSION

I. Was there substantial evidence to support the Commission's finding that Ms. Ross's right knee ankle, and back injuries were not second compensable injuries?

[¶12] Ms. Ross argues that her right knee, ankle, and back injuries were caused by her left knee injury, and thus should have been covered as second compensable injuries. The Division argues that the Commission correctly denied coverage for those injuries.

[¶13] The second compensable injury rule provides that a subsequent injury may be compensable when "an initial compensable injury ripens into a condition requiring additional medical [treatment]." Triplett, 2021 WY 118, ¶ 37 497 P.3d at 912 (alteration in original) (quoting In re Kaczmarek, 2009 WY 110, ¶ 9, 215 P.3d 277, 281 (Wyo. 2009)). "[A] subsequent injury or condition is compensable if it is causally linked to the initial compensable work injury." Ball v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2010 WY 128, ¶ 24, 239 P.3d 621, 628 (Wyo. 2010) (citing Alvarez v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2007 WY 126, ¶ 18, 164 P.3d 548, 552 (Wyo. 2007)). We have described the required causal connection between the...