Workers' Safety and Comp. Div. V. Faulkner, 06-22.

CourtUnited States State Supreme Court of Wyoming
Citation152 P.3d 394,2007 WY 31
Docket NumberNo. 06-22.,06-22.
PartiesSTATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION; and FMC Corporation, Appellants (Petitioner/Employer), v. Lawrence FAULKNER, Appellee (Respondent).
Decision Date22 February 2007

LLC, Rawlins, Wyoming; George Lemich, of Lemich Law Center, Rock Springs, Wyoming.

Representing Appellee: Michael D. Newman, Rock Springs, Wyoming.

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

BURKE, Justice.

[¶ 1] The Wyoming Workers' Compensation Division ("Division") and FMC Corporation ("Employer") challenge the Medical Commission's permanent partial impairment rating awarded to Mr. Faulkner. We affirm.


[¶ 2] The issue on appeal is:

Whether the Medical Commission erred as a matter of law in failing to allow apportionment of the employee-claimant's impairment award between his non-work related condition and his compensable work related injury.


[¶ 3] The underlying facts of this case are not in dispute. Mr. Faulkner began his employment with FMC Corporation in 1988 as an instrument and electrical technician. In May of 1995, Mr. Faulkner sought medical treatment for non-work related back pain. Surgery was performed in July and Mr. Faulkner returned to his regular duty employment in December 1995.

[¶ 4] In 1999, Mr. Faulkner suffered a work-related low back injury, which required additional surgery. He applied for, and received, worker's compensation benefits. Mr. Faulkner did not receive a worker's compensation impairment rating for this injury. He again returned to his employment without restrictions.

[¶ 5] On December 28, 2000, Mr. Faulkner sustained the work-related injury at issue in this case. On that day, Mr. Faulkner was driving a golf cart while at work. The golf cart had been modified by the installation of a rail. It was necessary for Mr. Faulkner to lift his legs over the rail each time he mounted and dismounted from the cart. The injury occurred when, after lifting his legs over the rail, Mr. Faulkner felt a "pop" in his lower back. As he walked across the shop floor, he developed "excruciating pain" in his lower back and down his right leg. As a result of this incident, Mr. Faulkner was diagnosed with a work-related disc herniation. Two surgeries were performed. Mr. Faulkner's condition did not improve with the surgical intervention. He has been unable to work since the date of the incident.

[¶ 6] Mr. Faulkner filed a claim seeking permanent partial impairment worker's compensation benefits. As a result of this claim, Mr. Faulkner underwent two independent medical examinations ("IME"). Dr. Ruttle performed the first IME and rated Mr. Faulkner's whole person impairment at twenty-three percent (23%). Dr. Ruttle qualified the rating by noting that "[a]pproximately 95% of [Mr. Faulkner's] current disability appears related to prior back injuries and surgeries that preceded alleged injury on December 28, 2000. The patient's total percent impairment secondary to injury December 28, 2000, is approximately 1%." Mr. Faulkner objected to Dr. Ruttle's one-percent impairment rating.

[¶ 7] A second evaluation was performed by Dr. Dall and his conclusions paralleled those of Dr. Ruttle:

In discussing causation and apportionment, I think it is necessary to look at the patient's rating hypothetically at various points in time. Following his first surgery in 1995, based on our current rating criteria, he would have already qualified for a DRE lumbar category IV impairment (20-23%). Therefore, the second, third and fourth surgeries, while contributing to the patient's current state of disability, would not contribute significantly to his impairment rating. Given that he was doing well and was able to return to heavy duty work, I would have certainly placed him in the lower end of the category (20%) at that time. At most, therefore, the incidents that have occurred between then (1995 and now) would add three percent whole person impairment . . . I, therefore, [concur] with Dr. [Ruttle] that the vast majority of the above impairment award is causally related to his pre-existing conditions of 1995 and 1999. I do not have sufficient medical records between 1995 and 1999 to better apportion between those two but, as indicated above, if the decision were to be made upon ratings at previous points in time, the vast majority would be apportioned to the 1995 incident.

Dr. Dall ultimately rated Mr. Faulkner's impairment at three percent (3%). After receiving the results of the two exams, the Division issued its final determination awarding Mr. Faulkner a three percent (3%) impairment rating.

[¶ 8] Mr. Faulkner timely requested a hearing claiming apportionment of the rating was improper. The matter was referred to the Medical Commission pursuant to Wyo. Stat. Ann. § 27-14-405(m).1 After receiving evidence, the Medical Commission determined that Mr. Faulkner's injury was a material aggravation of a preexisting condition and rated his impairment at twenty-three percent (23%). The Medical Commission did not apportion the rating between Mr. Faulkner's pre-existing condition and the work-related injury, concluding that apportionment was not authorized under Wyoming law.

[¶ 9] Following the Medical Commission's final determination, the Division filed a timely Petition for Judicial Review with the district court. The district court affirmed the Medical Commission's decision. This appeal followed.


[¶ 10] When reviewing administrative decisions, we are limited to a determination of the factors specified in Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2005), 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:

(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.

We have also stated:

"The interpretation and correct application of the provisions of the Wyoming Worker's Compensation Act are questions of law over which our review authority is plenary. Conclusions of law made by an administrative agency are affirmed only if they are in accord with the law. We do not afford any deference to the agency's determination, and we will correct any error made by the agency in either interpreting or applying the law."

Bailey v. State ex rel. Wyo. Workers' Safety and Compensation Div., 2002 WY 145, ¶ 9, 55 P.3d 23, 26 (Wyo.2002) (internal citations omitted) (quoting State ex rel. Workers' Safety and Compensation Div. v. Garl, 2001 WY 59, ¶ 9, 26 P.3d 1029, 1032 (Wyo.2001)). We review this case as if it had come directly to this Court from the agency and do not afford any deference to the district court's decision. Bailey, ¶ 6, 55 P.3d at 25.


[¶ 11] Mr. Faulkner applied for permanent partial impairment benefits in accordance with Wyo. Stat. Ann. § 27-14-405(f) (LexisNexis 2005), which provides that "[a]n injured employee suffering an ascertainable loss may apply for a permanent partial impairment award . . . ." An "ascertainable loss" is defined as "that point in time which it is apparent that permanent physical impairment has resulted from a compensable injury, the extent of the physical impairment due to the injury can be determined and the physical impairment will not substantially improve or deteriorate because of the injury." Wyo. Stat. Ann. § 27-14-102(a)(ii) (LexisNexis 2005). In determining whether an employee has suffered a compensable injury, we have recognized that a preexisting injury may present a compensable claim "if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the . . . disability for which compensation is sought." Lindbloom v. Teton International, 684 P.2d 1388, 1390 (Wyo.1984) (citing 1 Larson's Workmen's Compensation Law, § 12.20, p. 3-276). See also Romero v. Davy McKee Corp., 854 P.2d 59, 61 (Wyo. 1993); State ex rel. Wyo. Workers' Comp. Div. v. Fisher, 914 P.2d 1224, 1226 (Wyo. 1996); Haynes v. State ex rel. Wyoming Workers' Compensation Div., 962 P.2d 876, 878 (Wyo.1998); Wyo. ex. rel. Wyo. Workers' Safety & Comp. Div. v. Parrish, 2004 WY 144, ¶ 27, 100 P.3d 1244, 1254 (Wyo.2004).

[¶ 12] It is undisputed that Mr. Faulkner was injured in the course of his employment and that the injury materially aggravated a pre-existing condition. Although Mr. Faulkner had prior surgery involving his lower back, at the time of the incident giving rise to this claim Mr. Faulkner was employed on a full-time basis with no medical or physical restriction impacting his employment. He had previously received worker's compensation benefits for injuries involving his lower back; however, there is no indication in the record that he had received an impairment rating or a permanent disability award. The Division and the Employer do not dispute that Mr. Faulkner's two back surgeries...

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