Worker's Comp. Claim of Rodgers v. State

• Citation: 135 P.3d 568,2006 WY 65
• Decision Date: 31 May 2006
• Docket Number: No. 05-144.,05-144.
• Parties: In the Matter of the WORKER'S COMPENSATION CLAIM OF Milton RODGERS, Appellant (Employee/Claimant), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Objector/Defendant).
• Court: United States State Supreme Court of Wyoming

Page 568

135 P.3d 568

2006 WY 65

In the Matter of the WORKER'S COMPENSATION CLAIM OF Milton RODGERS, Appellant (Employee/Claimant), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Objector/Defendant).

No. 05-144.

Supreme Court of Wyoming.

May 31, 2006.

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Kirk A. Morgan of Gage & Moxley, P.C., Cheyenne, Wyoming, for appellant.

Patrick J. Crank, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; Kristi M. Radosevich, Assistant Attorney General; for appellee. Argument by Ms. Radosevich.

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

GOLDEN, Justice.

[¶ 1] Milton Rodgers suffered a work related back injury in 1983. Since then, Rodgers has undergone twenty-one neck and back surgeries and has suffered chronic pain, which his physicians have treated with numerous narcotic pain medications. In 1997, Rodgers began experiencing gastrointestinal problems caused by the narcotic pain medications. The Wyoming Workers' Compensation Division (Division) paid Rodgers' claims relating to his gastrointestinal problems until 2002. The Division thereafter denied Rodgers' claims on the ground that the gastrointestinal problems for which Rodgers was treated after 2002 were no longer related to his pain medications. After a contested case hearing, the Medical Commission Hearing Panel upheld the denial of Rodgers' claim. Rodgers appealed to the district court, which affirmed the Medical Commission's decision. Rodgers now appeals to this Court.

[¶ 2] This Court finds that the Medical Commission's order denying benefits violates the Wyoming Administrative Procedures Act ("Wyoming APA") by failing to set forth basic findings of fact to support its ultimate findings and by improperly taking judicial notice of certain facts. Where an agency order is facially insufficient to permit review, it is this Court's preference to remand for entry of a new order correcting the deficiencies. In this case, though, we also find that the order denying benefits contains inaccurate findings and that it is on those inaccuracies that the Medical Commission based its decision to uphold the denial of benefits. Under these narrow circumstances, where we are correcting an inaccuracy in the findings of fact without reweighing the evidence, this Court will reverse the district court's decision and remand with directions to vacate the order denying benefits. Further, the district court is to remand the case to the Medical Commission for entry of an order awarding benefits for the diagnosis and treatment of Rodgers' gastrointestinal problems and esophageal stricture.

ISSUES

[¶ 3] Rodgers presents the following issues for our review:

I. Whether the Medical Commission's holding, regarding Mr. Rodgers's gastrointestinal disorders, [is] supported by substantial evidence when the record is viewed in its entirety.

II. Whether the Medical Commission erred, as a matter of law, by providing findings of fact and conclusions of law that are inadequate and contrary to W.S. § 16-3-110 regarding Mr. Rodgers's gastrointestinal problems.

III. Whether the Medical Commission's holding, regarding Mr. Rodgers's esophageal stricture, is supported by substantial evidence when the record is viewed in its entirety.

IV. Whether the Medical Commission's decision was arbitrary and capricious because it illegally took judicial notice of a contested fact and failed to follow the procedures required by W.S. § 16-3-108(d) when taking judicial notice.

The Division reframes the issues as:

I. Whether substantial evidence supports the Medical Commission's decision denying workers' compensation benefits to Appellant?

II. Whether the Medical Commission properly evaluated conflicting medical evidence and set out findings of fact which indicated which evidence the Medical Commission considered probative?

FACTS

[¶ 4] On December 27, 1983, Rodgers suffered a work-related back injury, which was diagnosed as an "acute traumatic lumbo-sacral sprain-strain complex." Since his injury, Rodgers has undergone twenty-one failed back and neck surgeries and suffers from chronic back pain. Rodgers' physicians have treated his chronic pain with numerous narcotic and non-narcotic pain medications.

[¶ 5] In March 1997, Rodgers began to experience abdominal pain for which he was seen by his primary care physician, Dr. Marion N. Smith. Dr. Smith attributed Rodgers' abdominal pain to his pain medication and referred him to Dr. Thomas G. Tietjen, a gastroenterologist. Dr. Tietjen ordered an esophagogastroduodenoscopy (EGD), which was performed on April 3, 1997. The EGD showed a "[d]uodenal ulcer with gastric outlet obstruction. Diffuse gastritis with hemorrhage. Severe duodenitis with erosions." Dr. Tietjen prescribed Prilosec for Rodgers and directed him to return for a follow-up visit in four weeks.

[¶ 6] Four weeks later, on April 30, 1997, a second EGD was performed on Rodgers. The second EGD showed (1) a "duodenal ulcer with less obstruction than on last EGD four weeks ago;" (2) "[m]oderately severe erosive gastritis;" and (3) "[n]ormal esophagus." Dr. Tietjen took biopsies on this same date to rule out Helicobacter pylori ("H. pylori") bacteria and to confirm that Rodgers' condition was benign. The biopsy results showed normal tissue and no identifiable H. pylori bacteria.

[¶ 7] Rodgers saw Dr. Tietjen for abdominal pain on three subsequent occasions, with the last recorded visit on April 24, 2000. Findings during those visits included internal hemorrhoids, diverticulosis, ileus and/or nonmechanical gastric outlet obstruction resulting from narcotic medications, a normal esophagus, and mild erosive gastritis and a single acute ulcer in the postbulbar region of the duodenum caused by aspirin in the Fiorinal Rodgers was taking for pain.

[¶ 8] On May 17, 2001, Dr. Smith ordered an upper GI series and pharyngogram. The tests showed no evidence of any stricture, mass or ulceration in the esophagus and no anatomic abnormalities of the pharynx or esophagus. Dr. Smith referred Rodgers to the Center for Gastroenterology at Poudre Valley Hospital in Fort Collins, Colorado, where Dr. Hugh P. McElwee on July 9, 2001, performed an endoscopy, and on July 24, 2001, performed an esophageal motility test. Following these procedures, Dr. McElwee noted:

Milton has what sounds like a proximal dysphagia. We did further evaluation with upper endoscopy on July 9, 2001 that showed a Schatzki's ring and some gastritis. We did esophageal dilation and biopsy for H-pylori and the latter was negative. He got little or no benefit from the dilation and still has difficulty swallowing pills and other foods. He locates all of his distress in the upper esophagus. Esophageal motility was done . . . and this was a normal study without obvious motility explanation for his dysphagia.

[¶ 9] Rodgers began seeing Dr. Charles Kuckel, a gastroenterologist, in October 2002. On October 16, 2002, following two exams, an endoscopy and a biopsy, Dr. Kuckel diagnosed Rodgers with "dysphagia secondary to esophageal stricture/ulcer with gastritis secondary to H. pylori as well as duodenitis and duodenal ulcer." Dr. Kuckel prescribed antibiotics to treat the H. pylori infection and directed Rodgers to see him again in one month, noting that "it is most likely at that juncture we will have to have a repeat EGD in order to dilate that stricture."

[¶ 10] Rodgers saw Dr. Kuckel again on December 20, 2002, at which time Dr. Kuckel repeated his diagnosis of "dysphagia secondary to esophageal stricture as well as gastritis and duodenitis." He added that Rodgers "also has symptoms of gastroparesis which are most likely secondary to his pain medications." Dr. Kuckel thereafter performed an EGD on Rodgers on January 15, 2003, which "revealed the previously observed stricture with irregular and thickened mucosa was still present in the distal esophagus along with erosive esophagitis," erosive gastritis, and a hiatal hernia. Dr. Kuckel performed an esophageal dilatation and ordered a repeat endoscopy and dilatation within the next month.

[¶ 11] On February 14, 2003, Rodgers underwent the repeat EGD and dilatation. On February 27, 2003, Dr. Kuckel followed up with Rodgers and noted:

Mr. Milton Rodgers is a 63-year-old Caucasian male with multiple medical problems who has dysphagia secondary to an esophageal stricture secondary to reflux and gastroparesis secondary to his chronic use of pain medication who is now improved with dilatation, EGD, and high-dose antacid-secretory medication.

Dr. Kuckel also noted that Rodgers would likely require another esophageal dilatation within the next two months.

[¶ 12] On February 27, 2003, Rodgers also saw Dr. Peter G. Perakos, at the Division's direction, for an independent medical examination (IME). Dr. Perakos opined as follows:

There is not an issue of causation with respect to the injury causing Mr. Rodgers' back pain. I presume the issue may well be if the medications that he has been taking have caused his esophageal stricture. This is a very difficult issue in that apparently the Division has already felt that there is a causal relationship. As we do not have most of Dr. Tietjen's records I cannot be convinced that there is a causal relationship between his medications and causing his esophageal strictures or dysmotility of his esophagus, particularly in the setting of a normal esophageal motility study by Dr. McElwee within the past two years. Based upon the information we have to a reasonable degree of medical probability there is not a probable causal relationship between the current complaint and the medications used and whatever is being referred to as a spinal stroke. We would like to have much more information with respect to the "spinal stroke" as we have difficulty with the anatomic understanding of what symptoms may...