Tarraferro v. State, Wyoming Medical Com'n

• Decision Date: 02 December 2005
• Docket Number: No. 05-53.,05-53.
• Citation: 123 P.3d 912,2005 WY 155
• Parties: In the Matter of the Worker's Compensation Claim of: Michael TARRAFERRO, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING MEDICAL COMMISSION and Wyoming Workers' Safety and Compensation Division, Appellee (Respondent).
• Court: Wyoming Supreme Court

123 P.3d 912

2005 WY 155

In the Matter of the Worker's Compensation Claim of: Michael TARRAFERRO, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING MEDICAL COMMISSION and Wyoming Workers' Safety and Compensation Division, Appellee (Respondent).

No. 05-53.

Supreme Court of Wyoming.

December 2, 2005.

Representing Appellant: Bill G. Hibbler, Cheyenne, Wyoming.

Representing Appellee: Patrick J. Crank, Attorney General; Steve Czoschke, Senior Assistant Attorney General; and J.C. DeMers, Special Assistant Attorney General. Argument by Mr. DeMers.

Before HILL, C.J., and GOLDEN, KITE, and VOIGT, JJ., and GUTHRIE, D.J.

HILL, Chief Justice.

[¶ 1] Appellant, Michael Tarraferro (Tarraferro), contends that the Medical Commission (Commission) erred in considering inadmissible and incompetent evidence that it generated after the hearing on this matter had concluded, and that its decision that Tarraferro failed to meet his burden of proof that his use of the medication Marinol "was not experimental," as well as that its use "was necessary and reasonable," is erroneous. The only competent evidence of record requires that we reverse the Commission's order, as well as the district court's order affirming that decision, and direct that this matter be remanded to the Commission with directions that it void its decision to deny Tarraferro his Marinol prescription, and enter an order to the opposite effect.

ISSUES

[¶ 2] Tarraferro raises these issues:

I. Whether the Medical Commission order is supported by substantial evidence?

II. Whether the Medical Commission order is contrary to law because it is based upon evidence gathered sua sponte by the panel outside of the hearing, in violation of Wyoming Statute § 16-3-107(j), (o) or (r) and/or § 16-3-108(c) or (d)?

III. Whether the Medical Commission order is contrary to law because it is based upon an issue not referred to and before it?

IV. Whether the Medical Commission order is arbitrary or capricious because it ordered payment of medical benefits even though it concluded payment of those benefits is contrary to Wyoming Statute § 27-14-102(a)(xii)?

V. Whether the Medical Commission order is contrary to law because the Workers' Compensation Division violated Wyoming Statute § 27-14-605(a), by improperly redetermining either the necessity, reasonableness or experimental use of Mr. Tarraferro's Marinol prescription?

The Workers' Compensation Division (Division) poses these issues:

Is [Tarraferro] aggrieved or adversely affected for purposes of judicial review when the Medical Commission ordered payment of the actual claim at issue?

Is the Medical Commission's finding that [Tarraferro] failed to prove entitlement to Marinol, a prescription drug, as a result of his 1998 left inguinal hernia reasonable and supported by substantial evidence?

FACTS AND PROCEEDINGS

[¶ 3] On February 28, 2003, Tarraferro submitted a claim to the Division so as to be reimbursed for a pain medication, Marinol, prescribed for him by his attending physician, a pain management specialist. At the time he submitted this claim, he had been taking Marinol for 22 months. The cost of a 30-day supply of Marinol at that time was $1,037.74.

[¶ 4] The Division denied the claim on the basis that: "THIS MEDICATION IS DENIED AS IT IS TO BE USED TO ASSIST CANCER AND AIDS PATIENTS. CURRENT SYMPTOMS DO NOT APPEAR TO MEET THE CRITERIA FOR MARINOL USE PER THE FDA GUIDELINES." That notice advised Tarraferro of his right to a hearing if he disagreed with that determination. On March 19, 2003, Tarraferro asked for a hearing. The Commission issued an order appointing counsel for Tarraferro on June 5, 2003, and scheduled a hearing for February 18, 2004. A hearing was held and the Commission issued findings of fact and conclusions of law, affirming the Division's denial of Tarraferro's claim. Tarraferro further appealed his case to the district court, and the district court issued an order affirming the Commission's order.

[¶ 5] We need not detail the severe and disabling injury that Tarraferro suffered, because the fact that he suffered such an injury, and was receiving worker's compensation benefits for it, is not at issue here. The only issue was whether Tarraferro's attending physician properly prescribed Marinol for his patient's pain symptoms. The following is a physician's description¹ of what brought Tarraferro to the use of Marinol:

This is a 40 year old gentleman who reports significant pain in the penis, scrotal and perineal areas ever since a severe pelvic crush injury 2½ years ago. This pain is always there, it is up to a 10 out of 10.² He describes it as a vise grip squeezing to the penis and testis. It seems to be worse following treatment with FLOMAX or SAW PALMETTO. No alleviating factors except pain medications. Associated symptoms are pain, nausea, rash.

STANDARD OF REVIEW

[¶ 6] Our review of an administrative decision is limited to those matters specified in Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2005):

(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.

The standard of review we apply when both parties present evidence at an administrative hearing was set forth in Newman v. State ex rel. Wyoming Workers' Safety and Compensation Division, 2002 WY 91, 49 P.3d 163 (Wyo.2002).

In appeals where both parties submit evidence at the administrative hearing, Newman mandates that appellate review be limited to application of the substantial evidence test. Newman, 2002 WY 91, ¶ 22, 49 P.3d 163. This is true regardless of which party appeals from the agency decision. In addition, this court is required to review the entire record in making its ultimate determination on appeal. Newman, at ¶ 19 and ¶¶ 24-26.

The substantial evidence test to be applied is as follows:

"In reviewing findings of fact, 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."

Newman, at ¶ 12 (quoting State ex rel. Workers' Safety and Compensation Div. v. Jensen, 2001 WY 51, ¶ 10, 24 P.3d 1133, ¶ 10 (Wyo.2001)).

Even when the factual findings are found to be sufficient under the substantial evidence test, Newman further concludes this court may be required to apply the arbitrary-and-capricious standard as a "safety net" to catch other agency action which prejudiced a party's substantial right to the administrative proceeding or which might be contrary to the other [Wyoming Administrative Procedural Act] review standards.

Loomer v. State ex rel. Wyoming Workers' Safety and Compensation Division, 2004 WY 47, ¶ 15, 88 P.3d 1036, ¶ 15 (Wyo.2004).

Berg v. State ex rel. Wyoming Workers' Safety and Compensation Division, 2005 WY 23, ¶ 7, 106 P.3d 867, 870 (Wyo.2005).

DISCUSSION

[¶ 7] It was agreed by all parties and the Commission that the sole issue at the hearing was, "Whether Employee Claimant's use of Marinol is necessary and reasonable."

Is Tarraferro Aggrieved or Adversely Affected by the Commission's Decision

[¶ 8] Because this poses a threshold question which would render unnecessary further consideration of the other issues raised in this matter, we will address this question first. At the outset, we note that this issue was not called to the attention of the Commission, nor was it addressed by the district court. Until this appeal was brought before this Court, the Division, the Medical Commission, Tarraferro, and the district court perceived this to be a justiciable controversy, as well as that he was aggrieved and adversely affected by the Division's and the Commission's respective decisions. This contention is premised upon the Commission's following finding: "However, because the Division paid for 22 months of medication and denied further benefits after Mr. Tarraferro refilled his prescription, this last prescription refill should be paid by the Division." (Emphasis added.) It was apparently the Medical Commission's conclusion that, given these circumstances, the Division should have paid for the immediate prescription, but it further determined that any future benefits in this regard should be denied. To conclude that the Medical Commission's digression deprives this Court of jurisdiction to hear this appeal elevates form over substance to an extent with which we simply cannot agree. In Jacobs v. State ex rel. Workers' Safety and Compensation Division, 2004 WY 136, ¶ 8, 100 P.3d 848, 850-51 (Wyo.2004) we held:

Until Jacobs is actually denied benefits for his abdominal pain, that issue is not ripe for our review.

The ripeness doctrine is a category of justiciability "developed to identify appropriate occasions for judicial...