Snyder v. State ex rel. Wyoming Worker's Compensation Div.

Citation957 P.2d 289
Decision Date20 April 1998
Docket NumberNo. 97-16,97-16
PartiesGordon C. SNYDER, Appellant (Employee-claimant), v. STATE of Wyoming, ex rel., WYOMING WORKER'S COMPENSATION DIVISION, Appellee (Objector).
CourtUnited States State Supreme Court of Wyoming

G. Mark Garrison of Garrison & Wilmer, Sheridan, for Appellant.

William U. Hill, Attorney General; and Bernard P. Haggerty, Assistant Attorney General, for Appellee.

Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN and LEHMAN, JJ.

LEHMAN, Justice.

Gordon C. Snyder appeals the hearing examiner's determination denying additional worker's compensation benefits for a shoulder injury and denying two claims for cervical x-rays and treatments ordered by the treating physician. We affirm in part and reverse in part.

ISSUES

Appellant Gordon C. Snyder, the claimant, states three issues:

1. Whether the Office of Administrative Hearing's Order Granting and Denying Benefits is arbitrary and capricious, and contrary to law where the Hearing Examiner retroactively found previously compensable claims, non-compensable, indicating that the Claimant had not met his burden of proof, after addressing issues not raised by either the Division or the Claimant.

2. Whether the Office of Administrative Hearing's decision was arbitrary and capricious and contrary to law where the Hearing Examiner found that the Claimant had not met his burden of proof as to the initial injury, however, did find that the burden of proof for the Temporary Total Disability benefits awarded for the same injury had been met by the Claimant.

3. Whether the Hearing Examiner's decision was incorrect as a matter of law and not supported by substantial evidence where he ruled that a cervical x-ray and cervical traction therapy ordered by the Claimant's treating physician were not compensable because the Claimant had not met his burden of proof.

Appellee, Worker's Compensation Division (Division), frames the issues as:

A. Whether the hearing examiner's denial of outstanding claims for the Appellant's shoulder impingement was supported by B. Whether the Appellant forfeited his right to compensation by "flatly refusing" to submit [to] an independent medical examination required by the Division.

substantial evidence and in accordance with law.

C. Whether the hearing examiner's denial of benefits for the Appellant's neck-related claims was supported by substantial evidence and in accordance with law.

FACTS

On August 14, 1995, Snyder was carrying an air conditioning unit with a co-worker when it started slipping out of its crate, causing him to fall backwards. According to the report of injury completed by Snyder and his employer, Snyder injured his shoulder and back when he fell with the unit. The Division notified Snyder that his injury was compensable and paid Snyder's first five applications for temporary total disability benefits, covering the period of August 14, 1995 through January 31, 1996.

In response to an inquiry from the Division, Snyder's treating physician, Dr. Nickerson, sent a letter to the Division dated February 7, 1996. He stated "I think he's reached a point in his recovery where I have nothing more to offer short of surgery. * * * Without surgery, Mr. Snyder has reached maximum medical improvement. I think his condition would not substantially improve or deteriorate if surgery is not performed." That same date, Dr. Nickerson sent a sixth application for temporary total disability benefits for the period beginning January 31, 1996, indicating that "painful limited ROM" was keeping Snyder from working. Dr. Nickerson did not specify a period ending date for Snyder's temporary total disability, and did not indicate whether Snyder had sustained an ascertainable loss. 1 His attached notes state "I can't certify him as having temporary disability as I feel his situation is stable unless surgical treatment is undertaken." Dr. Nickerson submitted a seventh application, dated March 7, 1996, certifying Snyder as temporarily disabled for the period of January 31, 1996 to February 28, 1996. He again did not indicate whether Snyder suffered an ascertainable loss.

The Division sought to have Snyder undergo an independent medical evaluation (IME). Two appointments were scheduled with a doctor in Cody and subsequently canceled. On March 12, 1996, the Division sent Snyder a letter asking him to see Dr. Steven Marble in Gillette on April 6, 1996, for an IME and impairment rating. Dr. Marble was asked to give a diagnosis and recommended treatment plan, and to state whether or not Snyder suffered an ascertainable loss.

On March 20, 1996, the Division issued a final determination denying Snyder's seventh temporary total disability application, stating:

The Division has already received an application for temporary total disability for the same period and your health care provider would not certify you. The Division also received two separate correspondence [sic] from your health care provider dated February 7, 1996, stating your condition is stable at this time. Furthermore, you are scheduled for another independent medical evaluation on April 6, 1996, the Division will review this matter again on [sic] the report is reviewed. Wyoming Statute 27-14-404[.]

On April 6, 1996, Snyder arrived for the IME with Dr. Marble fifteen to twenty minutes late because the Division gave him an incorrect address. Snyder was accompanied by a friend, and he tape recorded the session without Dr. Marble's knowledge. Soon after he arrived, Snyder began yelling and using profanities in the presence of the receptionist. The receptionist took him to an examination room; and, within five to ten minutes, Dr. Marble walked in and introduced himself.

                As Dr. Marble began questioning Snyder about how his injury occurred, Snyder became very upset and again began yelling profanities.  Dr. Marble stated Snyder "had the appearance of someone who looks like they are ready to get into a fight."   Snyder put on his shirt and left the office
                

Dr. Marble reviewed Snyder's medical records, but he was unable to perform a physical examination. Based on his review, Dr. Marble concluded that Snyder likely strained his right biceps and aggravated his calcific tendinitis in his August 14, 1995 on-the-job injury, and that those conditions likely reached maximum therapeutic improvement by January 1996. He was unable to adequately determine whether Snyder was capable of returning to work, but stated his opinion that if Snyder could not return to work it was because of pre-existing degenerative changes in his shoulder, rather than the specific injury in August 1995. He also concluded that no surgery was indicated for injuries sustained in Snyder's accident at work.

The Division issued another final determination on April 16, 1996, based on Dr. Marble's report. The final determination stated:

The Workers' Compensation Division has reviewed your Independent Medical Evaluation from Western Medical Consultants. The report stated that your aggravation of the biceps tendinitis likely reached maximum therapeutic improvement by January 1996. There was no ascertainable loss or permanent impingement as a result of this lifting injury. Also no surgery is indicated for the specific injuries sustained from the work related injury.

The Division sent Snyder a letter offering to schedule another evaluation by Dr. Marble, and warned Snyder that "[i]ntentional uncooperativeness by you in this process can prejudice you later in the case and sometimes can lead to a denial of benefits." Snyder refused to see Dr. Marble again. He objected to the March 20 and April 16 final determinations and requested a hearing.

In the meantime, the Division had issued a final determination on December 12, 1995, denying a $128.40 medical bill for cervical x-rays and a portion of an office visit related to cervical complaints. The Division also denied a $248.00 medical bill for cervical traction on January 11, 1996. Both final determinations stated that the neck-related treatments were unrelated to Snyder's work-related injury to his shoulder and back. Snyder also requested hearings on those final determinations.

A contested case hearing was held on September 23, 1996. The hearing examiner found that Snyder failed to prove the cervical treatments were related to his work-related injury and denied payment of the two bills for $128.40 and $248.00. The hearing examiner granted Snyder's seventh application for temporary total disability benefits, based on Dr. Nickerson's certification. Finally, the hearing examiner determined that Snyder did not prove by a preponderance of the evidence that his current shoulder impingement problem was causally related to his accident at work and, thus, denied further benefits for shoulder-related claims. Snyder sought review in the district court, which certified the case to this court pursuant to W.R.A.P. 12.09(b).

STANDARD OF REVIEW

W.R.A.P. 12.09 provides for judicial review of agency action according to W.S. 16-3-114(c), which states:

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;

* * *

(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

W.S. 16-3-114(c) (1997). An agency's factual findings are viewed with deference:

We examine the entire record to determine if 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 Aanenson v. State ex rel. Worker's Compensation Div., 842 P.2d 1077, 1079 (Wyo.1992) (citations omitted). An agency's conclusions of law will be affirmed only if they are in accordance with law. Id.

for that of the agency, and must uphold the findings on appeal. Substantial evidence is relevant evidence which a reasonable person might...

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