In the Matter of the Worker's Compensation Claim of: Allen Trump v. State of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division

IN THE SUPREME COURT, STATE OF WYOMING
2013 WY 140
OCTOBER TERM, A.D. 2013
November 8, 2013
IN THE MATTER OF THE WORKER’S
COMPENSATION CLAIM OF:
ALLEN TRUMP,
Appellant
(Petitioner),
No. S-13-0071
v.
STATE OF WYOMING, ex rel., WYOMING
WORKERS’ SAFETY AND COMPENSATION
DIVISION,
Appellee
(Respondent).
Appeal from the District Court of Laramie County
The Honorable Peter G. Arnold, Judge
Representing Appellant:
Robert A. Nicholas, Nicholas Law Office, Cheyenne, Wyoming.
Representing Appellee:
Gregory A. Phillips, Attorney General; John D. Rossetti, Deputy Attorney
General; Michael J. Finn, Senior Assistant Attorney General; Peter Howard,
Student Intern.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers
are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming
82002, of any typographical or other formal errors so that correction may be made before final publication in
the permanent volume.
BURKE, Justice.
[¶1] The Wyoming Workers’ Safety and Compensation Division awarded benefits to
Appellant, Allen Trump, after he experienced a workplace injury to his knees in 1993. In
2009, Mr. Trump sought payment for a left knee arthroscopy that he claimed was related
to his workplace injury. The Division denied the claim. Mr. Trump requested a
contested case hearing, and the hearing examiner upheld the Division’s decision to deny
benefits. Mr. Trump appealed to the district court, which affirmed the hearing
examiner’s order. He challenges the district court’s decision in this appeal. We affirm.
ISSUES
[¶2] Mr. Trump presents the following issues:
1. Is the OAH’s decision supported by substantial evidence?
2. Did the OAH abuse its discretion in excluding hearsay
testimony from Mr. Trump regarding the medical opinion
of his treating physician?
FACTS
[¶3] Mr. Trump experienced a workplace injury on August 11, 1993 while working on
a sewer excavation project for his employer, Mendez Excavation. According to his initial
report of injury, Mr. Trump injured his “leg [and] knee” when he stood up from a
squatting position he had held in order to set a cover for a sewer pipe. He was taken to
the hospital after the incident for “right knee pain,” where he reported that when he stood
up, he “heard [his knee] pop, more on the right than the left.” In the emergency room,
Mr. Trump was seen by Dr. Thomas J. Gasser, who placed him on crutches and advised
him to keep his knee immobilized.
[¶4] Three weeks later, Dr. Gasser ordered an MRI of the right knee, which revealed a
tear in Mr. Trump’s medial meniscus. Dr. Gasser performed a right knee arthroscopy and
partial medial meniscectomy on September 21, 1993. However, Mr. Trump continued to
experience pain in his right knee after surgery. After attempting to treat the pain with
oral anti-inflammatories and a steroid injection, Mr. Trump elected to have a second right
knee arthroscopy on February 7, 1994.
[¶5] In January, 1994, approximately three months after his initial right knee surgery,
Mr. Trump filed a second report of injury indicating that when he injured his right knee,
he also experienced pain in his left knee. Three months later, in April, 1994, Dr. Gasser
ordered an MRI of Mr. Trump’s left knee, which revealed a medial meniscus tear. The
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MRI report also stated that “No meniscal displacement is evident and there is
preservation of meniscal height.” Dr. Gasser performed a left knee arthroscopy and
partial medial meniscectomy on May 9, 1994.
[¶6] At a follow-up visit with Dr. Gasser on May 26, 1994, Mr. Trump reported that his
left knee was doing well and was causing him only a small amount of pain, but that his
right knee continued to bother him. Mr. Trump began a physical therapy program in
July, and the strength and flexibility of his left knee showed immediate and continued
improvement through the summer and fall of 1994. A physical therapy report from late
July noted that Mr. Trump “reports left knee is feeling good,” but that he “complains of
right knee pain, popping and grinding.” Similarly, in September, Mr. Trump’s physical
therapist reported that his “left knee is feeling a lot better,” but that “[h]e continues to
have a lot of right knee pain.”
[¶7] Mr. Trump continued to see Dr. Gasser during the fall of 1994. The notes from
those visits reveal that Mr. Trump had consistent right knee pain, but they make no
mention of his left knee. Due to the continuing problems with Mr. Trump’s right knee,
Dr. Gasser performed a third arthroscopy and partial medial meniscectomy on the right
knee in September, 1994. During a follow-up visit in December, Dr. Gasser noted that
Mr. Trump’s knees were “working quite well,” but indicated that Mr. Trump would
benefit from weight loss.
[¶8] Dr. Gasser continued to see Mr. Trump on a monthly, and sometimes bi-monthly,
basis during the first six months of 1995. During this period, Mr. Trump reported pain in
both knees, and sometimes reported that his right knee hurt worse than the left.
Dr. Gasser treated Mr. Trump’s pain using various combinations of prescription and
over-the-counter anti-inflammatory medications, and provided Mr. Trump with braces to
wear on both knees. In July, 1995, Dr. Gasser sent a letter to the Division stating that
Mr. Trump was “at a stable situation and therefore has probably reached [maximum
medical improvement]. I will rate him for this if you wish.” In a treatment note from
July, 1995, Dr. Gasser assigned a 10% impairment rating to Mr. Trump’s left knee.
Following an examination in December, 1995, Dr. Gasser reported that “Patient’s knees
are working well. Both patellas are tracking well. He is not wearing his braces anymore.
He is really quite comfortable. The knees occasionally pop[] still but he doesn’t have
much pain when they do.”
[¶9] Mr. Trump saw Dr. Gasser for routine examinations at approximately three month
intervals during 1996 and 1997. Dr. Gasser consistently noted that Mr. Trump’s knees
were “moving” and “working” well. However, Dr. Gasser’s notes during this period also
reveal that Mr. Trump was “still having some knee pain on occasion,” which he was able
to control by limiting his activity. Dr. Gasser’s notes reflect that Mr. Trump was also
experiencing shoulder and chest pain. Throughout 1996 and 1997, Dr. Gasser instructed
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Mr. Trump to treat his pain as needed with Orudis, which at that time was an over-the-
counter non-steroidal anti-inflammatory drug.
[¶10] After 1997, Dr. Gasser saw Mr. Trump on four occasions at irregular intervals. In
April, 1998, Dr. Gasser noted that Mr. Trump stopped taking Orudis because it was
causing stomach pain and that he began having shoulder and knee pain as a result.
Dr. Gasser also noted, however, that “The knees track well. There is no effusion in either
one. Cruciate and collateral ligaments are intact to stress.” Dr. Gasser prescribed
Arthrotec as a substitute for Orudis that would be gentler on Mr. Trump’s stomach. In
August, 1998, Dr. Gasser noted that the Arthrotec was “controlling [Mr. Trump’s] knee
pain very nicely,” and he instructed Mr. Trump to continue taking it as needed. In the
“Objective” section of his notes, Dr. Gasser stated that “Neither knee is swollen today.
He is moving well. He is walking well without limp.” Following Mr. Trump’s next visit,
in December, 1999, Dr. Gasser noted that “The knee is not swollen. It moves smoothly
without significant crepitation. There is no effusion and no joint line tenderness.”
Similarly, after Dr. Gasser’s last examination of Mr. Trump, in July, 2001, he noted that
“His knee is working very well today. . . . It moves smoothly and without crepitation.”
Although Dr. Gasser’s notes from the 1999 and 2001 examinations indicate that
Mr. Trump continued to take Arthrotec, those notes refer only to Mr. Trump’s “knee,”
without specifying which knee had been examined.
[¶11] In July, 2002, Mr. Trump sought treatment from Dr. Meade Davis for pain in his
right knee, which had been hurting him for about ten days. Dr. Davis ordered an MRI of
the right knee, which revealed a medial meniscus tear. Dr. Davis subsequently performed
right knee arthroscopies on Mr. Trump in August, 2002 and February, 2003. Three
weeks after his fifth right knee surgery, in February, 2003, Mr. Trump submitted to a
comprehensive physical examination. Notes from that exam indicate that Mr. Trump was
obese and that he smoked a pack of cigarettes per day. The examining physician stated
that Mr. Trump “needs to lose weight and needs to stop smoking” and that “Smoking
cessation and dietary restriction with weight loss should be the next thing on his agenda.”
[¶12] In August, 2003, Dr. Davis wrote a letter to the Division stating that Mr. Trump
had reached maximum medical improvement in his right knee and concluded that
Mr. Trump had a 27% total impairment to his right knee. In April, 2004, after Mr. Trump
complained of intense pain in his right knee, Dr. Davis ordered an MRI, which revealed a
complete tear in Mr. Trump’s anterior cruciate ligament (ACL). Mr. Trump, however,
opted not to undergo another surgery at that time. There is no indication in the record
that Mr. Trump sought any treatment for his left knee from Dr. Davis.
[¶13] In June, 2004, Mr. Trump began seeing Dr. Pete Kuhn to treat the tear in his right
ACL. Although Dr. Kuhn’s notes indicate that Mr. Trump initially presented with an
“ACL minus left knee,” Dr. Kuhn later clarified that he had intended to refer to
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Mr. Trump’s right ACL. Similarly, after an examination in September, 2004, Dr. Kuhn
wrote “Left knee follow-up but also right knee arthritis,” but he later acknowledged that
he had reversed the references to Mr. Trump’s knees in his dictation. Dr. Kuhn surgically
repaired Mr. Trump’s right ACL in July, 2006. During a follow-up visit in December,
2006, in addition to discussing the condition of Mr. Trump’s right knee, Dr. Kuhn noted
that Mr. Trump was experiencing “medial joint line pain on the left knee.” However, no
treatment plan with respect to the left knee was discussed. Approximately one month
later, in January, 2007, Dr. Kuhn performed a second operation on Mr. Trump’s right
knee to remove a screw that had been used to reconstruct the ACL. The record indicates
that Mr. Trump did not see Dr. Kuhn again until May, 2008. Dr. Kuhn’s notes from that
visit indicate that Mr. Trump was experiencing instability and grinding in his right knee.
There is no mention of Mr. Trump’s left knee.
[¶14] On July 28, 2009, over a year after his previous office visit, Mr. Trump sought
treatment from Dr. Kuhn for pain in his left knee, the condition at issue in this case.
Dr. Kuhn requested preauthorization from the Division to perform an arthroscopy on
Mr. Trump’s left knee. In response to Dr. Kuhn’s request, the Division asked Dr. Mark
Rangitsch for an independent medical evaluation to determine whether there was a causal
connection between Mr. Trump’s left knee pain and his 1993 workplace injury. After
setting forth Mr. Trump’s medical history and the results of his physical examination,
Dr. Rangitsch provided the following evaluation:
At this point, I feel the patient does have an internal
derangement to his left knee with likely a medial meniscus
tear. In addition, he may have some chondromalacia in the
knee, probably of the medial femoral condyle. As to any
specific relation of the current left knee problems to an injury
on August 11, 1993, this would be total conjecture. The fact
that the patient has not had treatment for this for greater than
14 years, it is my opinion that it is highly unlikely that the
current left knee problems are directly related to his injury
back in 1993, therefore, I would not pre-authoriz[e] a left
knee arthroscopy.
The Division issued a final determination on November 4, 2009, denying benefits relating
to treatment of Mr. Trump’s left knee.
[¶15] Mr. Trump objected to the Division’s final determination and requested a
contested case hearing before the Office of Administrative Hearings (OAH). Prior to the
hearing, Mr. Trump sought a second opinion from Dr. Jay Carson. In his initial
assessment, Dr. Carson noted that Mr. Trump had “Progressive left knee arthritis, likely
traumatic in nature,” and that “This could be associated with his Workers’ Comp injury,
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but secondary to the long time differential, it is difficult to make that direct association.”
Mr. Trump requested that his care be transferred to Dr. Carson, despite Dr. Carson’s
recommendation that he continue to follow-up with Dr. Kuhn. In a subsequent
assessment, Dr. Carson noted that Mr. Trump reported that he had undergone “at least”
two surgeries on his left knee. Dr. Carson ordered an MRI of Mr. Trump’s left knee,
which revealed a “posterior horn tear of the medial meniscus.” Despite Dr. Carson’s
opinion that there were “significant limitations” to relieving Mr. Trump’s pain through
surgical intervention, and that surgery would not “fix” his left knee issues, Mr. Trump
asked Dr. Carson to perform a left-knee arthroscopy. Dr. Carson proceeded with the
arthroscopy on September 3, 2010.1
[¶16] Mr. Trump’s contested case hearing was held on March 17, 2011. The hearing
examiner received documentary evidence relating to Mr. Trump’s medical history, as
well as the deposition testimony of Drs. Kuhn and Rangitsch, and testimony from
Mr. Trump. Following the hearing, the OAH issued an order concluding that Mr. Trump
“did not prove, by a preponderance of the evidence, his left knee injury and symptoms
treated by Dr. Kuhn and Dr. Carson, were caused by or related to his August 11, 1993,
work related accident.” Importantly, the hearing examiner found Dr. Rangitsch’s
testimony to be more persuasive than Dr. Kuhn’s testimony. Mr. Trump filed a petition
for judicial review in district court and the district court affirmed. Mr. Trump filed a
timely appeal from the district court’s decision. Additional facts will be presented as
1
Although Dr. Carson stated that an arthroscopy would not “fix” Mr. Trump’s knee pain, the Division did
not raise the issue of whether the procedure was “medically necessary.” We recently explained the
meaning of “medically necessary” treatment in In re Beall, 2012 WY 38, ¶ 22, 271 P.3d 1022, 1032
(Wyo. 2012):
One of the benefits provided by the Worker’s Compensation Act
is payment of medical expenses for work-related injuries. “The expense
of medical and hospital care of an injured employee shall be paid from
the date of the compensable injury . . . .” Wyo. Stat. Ann. § 27-14-
401(a). As indicated in the definition of “medical and hospital care,”
however, medical care must be reasonable and necessary in order for an
expense to be covered by the Act: “‘Medical and hospital care’ when
provided by a health care provider means any reasonable and necessary
first aid, medical, surgical or hospital service . . . .” Wyo. Stat. Ann. §
27-14-102(a)(xii). The Rules and Regulations of the Workers’
Compensation Division provide further guidance as to the meaning of the
phrase “medically necessary”: “‘Medically necessary treatment’ means
those health services for a compensable injury that are reasonable and
necessary for the diagnosis and cure or significant relief of a condition
consistent with any applicable treatment parameter.” Rules, Regulations
and Fee Schedules of the Wyoming Workers’ Safety and Compensation
Division, Ch. 1, § 4(al).
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necessary in the discussion below.
STANDARD OF REVIEW
[¶17] Review of an administrative agency’s action is governed by the Wyoming
Administrative Procedure Act, which provides that:
(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.
Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2009). We review an administrative
agency’s findings of fact pursuant to the substantial evidence test. Dale v. S & S
Builders, LLC, 2008 WY 84, ¶ 22, 188 P.3d 554, 561 (Wyo. 2008). Substantial evidence
is relevant evidence which a reasonable mind might accept in support of the agency’s
conclusions. Id., ¶ 11, 188 P.3d at 558. Findings of fact are supported by substantial
6
evidence if, from the evidence in the record, this Court can discern a rational premise for
the agency’s findings. Middlemass v. State ex rel. Wyo. Workers’ Safety & Comp. Div.,
2011 WY 118, ¶ 11, 259 P.3d 1161, 1164 (Wyo. 2011).
[¶18] Where the hearing examiner determines that the burdened party failed to meet his
burden of proof, we must decide whether that determination was contrary to the
overwhelming weight of the evidence. Leavitt v. State ex rel. Wyo. Workers’ Safety &
Comp. Div., 2013 WY 95, ¶ 18, 307 P.3d 835, 840 (Wyo. 2013). We defer to the hearing
examiner’s determination of witness credibility unless it is clearly contrary to the
overwhelming weight of the evidence. Id.
[¶19] With respect to the standard of review applied to questions of admissibility of
evidence in administrative proceedings, we have stated that “Admissibility of evidence is
committed to the discretion of the hearing examiner. A hearing examiner abuses his
discretion when his decision shocks the conscience of the court and appears to be so
unfair and inequitable that a reasonable person could not abide it.” Morris v. State ex rel.
Wyo. Workers’ Safety & Comp. Div., 2012 WY 71, ¶ 28, 276 P.3d 399, 406 (Wyo. 2012).
DISCUSSION
I. Substantial Evidence
[¶20] In Mr. Trump’s first issue, he contends the hearing examiner’s conclusion that
there was no causal connection between Mr. Trump’s 1993 workplace injury and his
2009 left knee pain is not supported by substantial evidence. He asserts that
Dr. Rangitsch’s opinion that there was no causal relationship is unreliable because it rests
on the false premise that Mr. Trump received no treatment for his left knee between 1994
and 2009. Mr. Trump claims the evidence demonstrated that he “received continuing
treatment for his left knee from 1993 to 1998 and from 1999 to 2004 and thereafter.” He
also claims the hearing examiner ignored “undisputed” evidence that “Mr. Trump
continued to use a knee brace on his left knee, including between 1999 and 2004 and
thereafter.” Finally, Mr. Trump contends there was no evidentiary support for the
hearing examiner’s conclusion that “the left knee injury and accident suffered by Trump
on August 11, 1993, was not one which one would expect to be causally connected to a
left knee condition diagnosed and treated 16 years later.”
[¶21] A claimant in a worker’s compensation case has the burden of proving all of the
elements of the claim by a preponderance of the evidence. Mitcheson v. State ex rel.
Wyo. Workers’ Safety & Comp. Div., 2012 WY 74, ¶ 11, 277 P.3d 725, 730 (Wyo. 2012).
As part of that burden, the claimant must prove a causal connection exists between a
work-related injury and the injury for which workers’ compensation benefits are sought.
Id. A preponderance of the evidence is “proof which leads the trier of fact to find that the
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existence of the contested fact is more probable than its non-existence.” Id. (quoting
Kenyon v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2011 WY 14, ¶ 22, 247 P.3d
845, 851 (Wyo. 2011)). It is undisputed that Mr. Trump experienced a compensable
injury to his left knee in August, 1993. However, Mr. Trump also had the burden to
prove, by a preponderance of the evidence, that his 2009 left knee pain was causally
related to his workplace injury.2
[¶22] As we have previously stated,
“[T]he causal connection between an accident or condition at
the workplace is satisfied if the medical expert testifies that it
is more probable than not that the work contributed in a
material fashion to the precipitation, aggravation or
acceleration of the injury. We do not invoke a standard of
reasonable medical certainty with respect to such causal
connection. Testimony by the medical expert to the effect that
the injury ‘most likely,’ ‘contributed to,’ or ‘probably’ is the
product of the workplace suffices under our established
standard . . . .
[U]nder either the ‘reasonable medical probability’ or ‘more
probable than not’ standard, [a claimant succeeds] in
demonstrating the causal connection by a preponderance of
the evidence.”
Anastos v. Gen. Chem. Soda Ash, 2005 WY 122, ¶ 20, 120 P.3d 658, 666 (Wyo. 2005)
(quoting Hall v. State ex rel. Wyoming Workers’ Compensation Div., 2001 WY 136, ¶ 16,
37 P.3d 373, 378 (Wyo. 2001)). However, where there is conflicting expert testimony
with respect to causation, as in the present case, the hearing examiner must determine the
2
In the proceedings below, the OAH also denied Mr. Trump’s claim for benefits under the second
compensable injury rule even though that claim had not been specifically asserted. The “second
compensable injury” rule applies “when an initial compensable injury ripens into a condition requiring
additional medical intervention.” Hoffman v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2012 WY
164, ¶ 9, 291 P.3d 297, 301 (Wyo. 2012) (quoting Rogers v. State ex rel. Wyo. Workers’ Safety & Comp.
Div., 2012 WY 117, ¶ 14, 284 P.3d 815, 819 (Wyo. 2012)). “Under the second compensable injury rule,
a subsequent injury or condition is compensable if it is causally related to the initial compensable injury.”
Hoffman, ¶ 9, 291 P.3d at 301. We have noted that “the burden of proof for a second compensable injury
is no different than the burden applied to all claimants to show the causal connection between their
injuries and their work.” Kenyon, ¶ 22, 247 P.3d at 852. Accordingly, Mr. Trump’s burden of proof with
respect to causation remained the same regardless of whether the second compensable injury rule was
applied. He does not address the second compensable injury rule in this appeal.
8
relative weight to be accorded to each expert’s testimony:
When conflicting medical opinions are presented at the
contested case hearing, the agency has the
responsibility, as the trier of fact, to determine
relevancy, assign probative value, and ascribe the
relevant weight given to the evidence presented. Clark
v. State ex rel. Wyoming Workers’ Safety &
Compensation Div., 934 P.2d 1269, 1271 (Wyo. 1997).
The [agency] is in the best position to judge and weigh
medical evidence and may disregard an expert opinion
if it finds the opinion unreasonable or not adequately
supported by the facts upon which the opinion is
based. Id.; Matter of Goddard, 914 P.2d 1233, 1238
(Wyo.1996).
Spletzer v. State ex rel. Wyo. Workers’ Safety & Comp. Div.,
2005 WY 90, ¶ 21, 116 P.3d 1103, 1112 (Wyo. 2005). We do
not re-weigh the evidence, but defer to the agency’s decision
so long as it is based on relevant evidence that a reasonable
mind might accept as supporting that decision. Id., ¶ 22, 116
P.3d at 1112.
Hayes v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2013 WY 96, ¶ 16, 307 P.3d
843, 849 (Wyo. 2013).
[¶23] Mr. Trump’s claim that the hearing examiner’s decision was not supported by
substantial evidence is based, in large part, on the assertion that the hearing examiner did
not properly weigh the expert testimony presented at the contested case hearing. He
contends that both the hearing examiner and Dr. Rangitsch misapprehended the
frequency and extent of treatment for his left knee between the time of his left knee
surgery, in 1994, and his complaints of left knee pain in 2009. He contends the hearing
examiner’s reliance on Dr. Rangitsch’s opinion was misplaced because Dr. Rangitsch
ignored the fact that he had reported left knee pain and received treatment on a consistent
basis between 1994 and 2009. Contrary to the hearing examiner’s findings, Mr. Trump
claims that he had “continual treatment, including pharmaceutical treatments, for his left
knee between 1994 and 2009” and that it is “undisputed” that he “continued to use a knee
brace on his left knee, including between 1999 and 2004 and thereafter.” Our review of
the record, however, reveals only a few instances, separated by significant intervals, in
which Mr. Trump reported left knee pain following his 1994 surgery and rehabilitation.
9
[¶24] While the evidence contained in the record does indicate that Mr. Trump reported
left knee pain during 1997 and 1998 visits with Dr. Gasser, and during a 2006
examination by Dr. Kuhn, that evidence cannot be stretched to support Mr. Trump’s
assertion that he received “continuous” treatment for his left knee. The examination
notes generated by Mr. Trump’s treatment with Dr. Gasser, from 1995 to 2001,
frequently indicate that Mr. Trump was not experiencing pain in his knees, often fail to
distinguish whether Mr. Trump was experiencing pain in his left or right knee, and
indicate sources of pain other than Mr. Trump’s knees for which anti-inflammatory
medications were needed. The ambiguity resulting from Dr. Gasser’s failure to identify
whether one or both knees were being treated is especially significant in light of
Mr. Trump’s medical history, which, even at this early stage, reflects a much greater
emphasis on the condition and treatment of his right knee. The next mention of left knee
pain in the record is from a 2006 examination by Dr. Kuhn. However, there is no
indication that any treatment was provided for Mr. Trump’s left knee at that time.
[¶25] Additionally, although Mr. Trump testified that, up to the date of the hearing, he
had periodically worn braces on both of his knees when they were “not comfortable [] or
hurting to walk on,” there is no indication in Mr. Trump’s medical records that he wore a
brace on his left knee after 1995. Indeed, in December, 1995, Dr. Gasser stated
Mr. Trump was “not wearing his braces anymore,” and his subsequent treatment notes do
not indicate that Mr. Trump continued to wear a brace on his left knee. Further, although
Mr. Trump claims that Dr. Kuhn provided him with “wrap around knee braces” for both
knees in June, 2004, after an MRI revealed a tear in Mr. Trump’s right ACL, Dr. Kuhn’s
notes actually refer to Mr. Trump’s “knee brace” in the singular, within the context of a
discussion of Mr. Trump’s right knee. Accordingly, although Mr. Trump’s medical
records do not reflect a complete absence of treatment for his left knee, the record reveals
that the treatment was not nearly as extensive as Mr. Trump suggests.
[¶26] More importantly, however, despite the scattered references in the record to the
use of anti-inflammatory medications to treat Mr. Trump’s left knee pain, Dr. Rangitsch’s
statements indicate that this is not the kind of “treatment” he would have relied on to
establish a causal connection considering the condition of Mr. Trump’s left knee in 2009.
On September 30, 2010, Dr. Rangitsch wrote a letter to the Division responding to
Dr. Kuhn’s deposition testimony, which is discussed below. In that letter, Dr. Rangitsch
suggested that the lack of a causal connection between Mr. Trump’s 1993 injury and his
2009 left knee pain was indicated by the absence of any surgical intervention over a 15-
year interval:
The patient had one procedure in 1994, and despite having
multiple appointments and visits, as well as multiple
procedures on his right knee, had no treatment for his left
knee. Therefore, the fact that he had an injury in 1993 and a
10
procedure in 1994, and now is requesting authorization for a
surgery some fourteen to fifteen years later, there is no direct
link. Therefore, I feel there is certainly some intervening
interval, which would have caused the patient to require
surgery, as the timeframe of fifteen years bodes that he did
not have a continuing meniscal problem for fifteen years and
he sought no medical treatment for this.
[¶27] Ultimately, however, even if we were persuaded by Mr. Trump’s attempt to
discredit the testimony of Dr. Rangitsch, we would still be unable to determine that the
hearing examiner’s decision was clearly contrary to the overwhelming weight of the
evidence in light of the testimony of Dr. Kuhn, Mr. Trump’s own expert. In his
deposition, Dr. Kuhn stated that he believed Mr. Trump had traumatic arthritis as a result
of his workplace injury. He also stated that Mr. Trump had a history of gout, which
contributed to inflammatory arthritis in his knee. Dr. Kuhn explained that, in contrast to
traumatic arthritis, the presence of inflammatory arthritis is “more developmental,
genetic, [and depends on] how heavy a person is and how good their body is at
metabolizing the proteins one takes in.” When he saw Mr. Trump in July, 2009, he
believed that Mr. Trump “had just flared up an abnormal knee,” which, as he explained in
his testimony, may have occurred spontaneously or may have been caused by “weather
change, activity change, [or] a twist.” Dr. Kuhn initially stated that he thought
Mr. Trump’s 2009 left knee pain was caused by his “longstanding arthritis,” and that
Mr. Trump’s 1993 injury and 1994 surgery were “components” of his traumatic arthritis.
Immediately after expressing this opinion, however, Dr. Kuhn stated that there was “a
very strong possibility his knee’s going to hurt just because he’s heavy and he has gout.”
[¶28] When Dr. Kuhn was asked, on direct examination, whether he could relate
Mr. Trump’s 2009 knee pain to his 1993 injury, Dr. Kuhn stated that he could not:
Q: Then as you – as you may know, the reason that we’re
having a hearing in this Workers’ Compensation case is to
determine whether or not the recommended outpatient
arthroscopy that you have recommended is related in any way
to the original 1993 injury and subsequent treatment that
[Mr. Trump] had [on] his left knee after that. Do you have an
opinion on that issue?
A: It’s very difficult to say it was a majority. The symptoms
that he had on July 28, 2009 were in majority due to the 1993
work injury. I’d have to tie it more to what I found on his
right knee, where he presented with a joint full of blood and
that. So I think it would be very difficult for me to give
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majority, especially in light of the fact that I know he has
hyperuricemia [gout].
Q: And when you say majority, are you saying that most –
more than 50 percent of his treatment is for the pre[-]existing
injury? What do you mean by majority?
A: Well, if I sit here today and say that the reason it was
indicated for arthroscopy was more than a 50 percent
chance due to the work injury of 1993, I don’t have any
basis for that.
(Emphasis added.) Dr. Kuhn further stated that “My thought is I don’t even know what
his work injury was in 1993. I know that he reported an injury to both knees, but I don’t
know if he had blood in his knee or not. So it could have been a tweaking because he had
gout.”
[¶29] In response to hypothetical questions from Mr. Trump’s counsel, which asked
Dr. Kuhn to assume a “change of the course of the knee” resulting from Mr. Trump’s
1993 injury and 1994 surgery, Dr. Kuhn stated that the resulting abnormality in the left
knee would have contributed to his need for treatment in 2009. However, on cross-
examination, Dr. Kuhn acknowledged that he knew “nothing” about the original
mechanism of injury to Mr. Trump’s left knee in 1993. After Dr. Kuhn was presented
with Mr. Trump’s original report of injury, as well as medical records relating to his 1994
surgery, he again stated that he could not say Mr. Trump’s 2010 surgery was causally
related to his 1993 injury:
Q: Doctor, knowing what you do now about the – well, about
the mechanism of injury back in 1993, would it be fair to say
that claimant’s left knee condition at the time that you saw
him cannot be related on a direct basis to the original work
injury within a reasonable degree of medical probability?
...
A: It goes to what I said earlier, I don’t – even with this
information, I don’t know that there was any internal
derangement that day. There’s no, you know, complaints,
and there’s no real findings. And then you have the
pathology as the symptoms presented and the MRI was done.
But the date of injury, I don’t know that there was a major
change in his anatomy with my review of this information for
12
the first time. I can’t pinpoint a change in his anatomy
equating an injury in my mind on the 1993 date.
Q: So just so I’m clear, you cannot state that it’s more
probable than not that this work incident and the injury
resulting therefrom is the cause of his need for treatment in
2009?
A: On his left knee?
Q: Correct.
A: Yes.
Q: And that’s all we’re here about.
A: Yes.
Notwithstanding this admission, on re-direct examination, Dr. Kuhn stated that he
disagreed with Dr. Rangitsch’s statement that “it is highly unlikely [that Mr. Trump’s]
current left knee problems are directly related to his injury in 1993.” However, when
asked whether his disagreement with Dr. Rangitsch caused him to conclude that there
was “a relation in some way or another to the 1993 injury and subsequent surgery,”
Dr. Kuhn noted that he had “concerns” based on Mr. Trump’s 1993 knee symptoms, but
stated that Mr. Trump’s medical history was “complicated by the gout, which I think is
real.” Further, on re-cross examination, Dr. Kuhn stated that Mr. Trump would have the
same problems with his knee if he hadn’t experienced an injury in 1993 due, in part, to
Mr. Trump’s gout. When he was asked by Mr. Trump’s counsel how he could say that
Mr. Trump’s condition would be “basically the same” if he had not injured himself in
1993, Dr. Kuhn stated:
Because we don’t know what’s causing his pain, and he has
terrible medical comorbidity. So whether or not he tore his
cartilage in 1993, his knees are going to present today like
they are, independent of injury, simply from the metabolic.
And he’s always been a patient that’s had more pain than just
the anatomic abnormality described on his MRI’s, both right
and left side. . . . He’d still have pain complaints because of
his gout.
Dr. Kuhn also stated that the mechanism of Mr. Trump’s 1993 injury would not normally
result in a tear of the medial meniscus.
13
[¶30] On October 18, 2012, Dr. Kuhn provided a written response to Dr. Rangitsch’s
September, 2010 letter to the Division, which further explained Dr. Kuhn’s opinions and
deposition testimony. Dr. Kuhn set forth his conclusions as follows:
As to the fact that he had an injury in 1993 and a procedure in
1994 requesting authorization for a surgery some 14-15 years
later, there is no direct link. I think one has to look at his
Workman’s Compensation reports at that time to see what
was documented. Obviously if there was work related injury
at that time he would certainly have propagation of cartilage
change thought to be meniscal, thought to be articular and
then complicated by the fact that he systematically is getting
knee pain from a metabolic direction, i.e. the gout. I think as
far as his time frame and not having a continuing meniscal
problem for 15 years is more related to the configuration of
the tear. Certainly as he presented with activity of daily
living and then internal derangement symptoms in the July of
2009 interval, it is well within probability that he would have
delamination of the articular cartilage and/or propagation of
any kind of meniscal pathology that then would have caused
him to have significant symptoms and indicate the
arthroscopy.
In summary, I think once there is damage to cartilage
in the knee there can be probability of symptoms from
internal derangement from continuing breakdown of that
cartilage either articular or meniscal and I think another sub-
population we see this in are the athletes that don’t
necessarily have an acute injury but develop ongoing
symptoms and then have interval arthroscopy to remove the
abnormal cartilage and get a little settling down of the
internal derangement symptoms and the function again on
these knees.
After reviewing Dr. Kuhn’s deposition testimony and the letter supplementing his
testimony, the hearing examiner determined that Dr. Kuhn’s opinions relating to
causation “were not helpful because they were based upon an ambiguous understanding
of the 1993 mechanism of injury, a confused understanding of which knee he was
treating and because his stated opinions were equivocal and not strongly stated.”
[¶31] In light of the evidence noted above, we agree with the hearing examiner’s
14
conclusion that Dr. Kuhn’s opinions were equivocal and not strongly stated. We note,
however, that at least some of the opinions expressed by Dr. Kuhn during his deposition
strongly suggest the absence of a causal connection between Mr. Trump’s 1993 injury
and his 2009 knee pain. Indeed, Mr. Trump’s counsel seemed to acknowledge this fact
during the deposition when, in response to an objection alleging that he had asked a
leading question, he stated that a leading question was appropriate because Dr. Kuhn had
“[b]ecome an adverse witness.” Ultimately, however, we find the hearing examiner
reasonably assigned greater weight to Dr. Rangitsch’s testimony in light of the manner in
which Dr. Kuhn repeatedly reversed and qualified his opinions. Consequently, we are
unable to conclude that the hearing examiner’s finding with respect to the lack of a causal
connection between Mr. Trump’s 1993 workplace injury and his 2009 left knee pain was
contrary to the overwhelming weight of the evidence.
[¶32] Finally, we are not persuaded by Mr. Trump’s claim that the hearing examiner
inappropriately found that “the left knee injury and accident suffered by Trump on
August 11, 1993, was not one which one would expect to be causally connected to a left
knee condition diagnosed and treated 16 years later.” To the extent Mr. Trump’s
argument is intended to suggest that causation could be established in the present case
absent expert testimony, we do not agree. We recently noted in Jacobs v. State ex rel.
Wyo. Workers’ Safety & Comp. Div., 2013 WY 62, ¶ 11 n.1, 301 P.3d 137, 142 n.1
(Wyo. 2013), that expert medical testimony is not always necessary to establish
causation. Expert medical testimony may not be required where the medical condition
complained of is “immediately and directly or naturally and probably” the result of the
workplace incident. Id. (citing Middlemass, ¶ 34, 259 P.3d at 1169). In the present case,
however, neither Dr. Rangitsch nor Dr. Kuhn suggested that Mr. Trump’s 2009 meniscus
tear was an expected or natural result of his 1993 injury. Rather, as noted by the hearing
examiner, both experts testified that a torn meniscus typically results from acute trauma
to the knee, such as forceful twisting or shearing. Additionally, the simple fact that
nearly 16 years had elapsed between Mr. Trump’s accident and the condition at issue in
this case suggests the need for expert testimony in order to establish causation. For these
reasons, we conclude that the hearing examiner’s finding is supported by substantial
evidence.
II. Exclusion of Hearsay Testimony
[¶33] In his second issue, Mr. Trump challenges the hearing examiner’s decision to
exclude his proposed testimony regarding statements alleged to have been made by
Dr. Carson. That testimony was excluded during the following exchange, which led to an
offer of proof:
Counsel for Petitioner: In your discussions with Dr. Carson,
did you ask him if there was any relationship between the
15
problems that he did surgery on in 2010 as compared to the
original injury in 1993?
Counsel for Division: We object to this line of questioning as
an effort to bring in Dr. Carson’s opinions. We have no idea
what it would be based on. Dr. Carson is not here for us to
cross-examine. And we don’t consider it appropriate – an
appropriate means to attempt to bring in medical causation
evidence in this case.
Hearing Examiner: Any response, [Counsel for Petitioner]?
Counsel for Petitioner: Well, the hearsay rule is – is not
applicable [in] this situation. And it’s – if it’s what his
treating physician tells him, he has the right to testify about
what his doctor told him. The Division has Dr. Carson’s
medical records. They had the opportunity to take
Dr. Carson’s deposition, and they didn’t do it. And so I think
we have the right to have him testify as to what his doctor
told him.
Hearing Examiner: I’m going to sustain the objection. We
have two doctors who testified by deposition. And while it
may be of limited relevance, I think at this point it’s so far
afield that I’m going to sustain the objection.
Counsel for Petitioner: I would just, then, submit an offer of
proof that had he testified, that he would have testified that
Dr. Carson told him that there is a [correlation] -- or a
relationship between the arthritis in his knee and the original
injury, because the surgeries and the injury then led up to the
degenerative process in his knee which has resulted in the tear
and the need for the surgery. So I would just submit that as an
offer of proof.
Hearing Examiner: That’s fine. Thank you.
Mr. Trump contends the hearing examiner erred as a matter of law in excluding this
testimony because the Wyoming Administrative Procedure Act “clearly allows for the
admission of hearsay[,] and the opinion of the physician who actually performed the left
knee surgery is relevant and material to the issue that was before the OAH.” As noted
above, we review a hearing examiner’s decision regarding the admissibility of evidence
16
for an abuse of discretion.
[¶34] Wyo. Stat. Ann. § 16-3-108 (LexisNexis 2009) governs the admissibility of
evidence in administrative proceedings. That statute provides, in pertinent part, as
follows:
§ 16-3-108. Contested cases; admissible evidence; cross-
examination; judicial notice.
(a) In contested cases irrelevant, immaterial or unduly
repetitious evidence shall be excluded and no sanction shall
be imposed or order issued except upon consideration of the
whole record or such portion thereof as may be cited by any
party and unless supported by the type of evidence commonly
relied upon by reasonably prudent men in the conduct of their
serious affairs. Agencies shall give effect to the rules of
privilege recognized by law. Subject to these requirements
and agency rule if the interests of the parties will not be
prejudiced substantially testimony may be received in written
form subject to the right of cross-examination as provided in
subsection (c) of this section.
(b) Documentary evidence may be received in the form of
copies or excerpts, if the original is not readily available.
Upon request, parties shall be given opportunity to compare
the copy with the original.
(c) A party may conduct cross-examinations required for a
full and true disclosure of the facts and a party is entitled to
confront all opposing witnesses.
...
We have said that hearsay is admissible in administrative proceedings when it satisfies
the requirements of Wyo. Stat. Ann. § 16-3-108 and it is “probative, trustworthy and
credible.”
[A]dministrative agencies acting in a judicial or quasi judicial
capacity are not bound by technical rules of evidence that
govern trials by courts or juries, and it is usually held that
evidence will not be excluded merely because it is hearsay.
Where hearsay evidence is by statute admissible in
administrative proceedings, it is often held that it must be
17
probative, trustworthy and credible; and, although it may not
be the sole basis for establishing an essential fact and is
insufficient to support an administrative decision, it may be
considered as corroborative of facts otherwise established.
Watkins v. State ex rel. Wyo. Med. Comm’n & Wyo. Workers’ Safety & Comp. Div., 2011
WY 49, ¶ 21, 250 P.3d 1082, 1089 (Wyo. 2011).
[¶35] We find a closely analogous ruling and argument presented in Whaley v. Alaska
Workers’ Comp. Bd., 648 P.2d 955 (Alaska 1982). In that case, the Alaska Supreme
Court considered whether the Alaska Workers’ Compensation Board had erred in
excluding the claimant’s testimony regarding an alleged causal relationship between his
original injury and a subsequently arising condition, as related to him by his physicians.
Citing supporting authority from other jurisdictions, the Court concluded that the Board
had not erred in excluding the claimant’s hearsay testimony because the testimony was
not trustworthy:
Whaley reasons on appeal that the liberalization of the
rules of evidence in hearings before the Board requires the
Board to accept all hearsay evidence. The provisions cited
above, however, do not contain such a requirement. The
statute states that all relevant evidence, even if hearsay,
“shall” be admitted in Board hearings provided it is evidence
“responsible persons are accustomed to rely on in the conduct
of serious affairs.” AS 44.62.460(d). This language gives the
board discretion to exclude hearsay evidence where it appears
untrustworthy. Reynolds Metals Co. v. Industrial
Commission, 98 Ariz. 97, 402 P.2d 414, 417-18 (Ariz. 1965);
Bergan v. Gallatin Valley Milling Co., 138 Mont. 27, 353
P.2d 320, 321 (Mont. 1960); see 3 Larson, Workmen’s
Compensation Law §§ 79.22-.23 (1976). Boards in other
jurisdictions have thus excluded as untrustworthy testimony
by a claimant regarding a discussion with a physician
concerning the cause and extent of a medical condition.
Kelsey v. Industrial Commission, 79 Ariz. 191, 286 P.2d 195,
198 (Ariz. 1955); Pacific Employers Insurance Co. v.
Industrial Accident Commission, 47 Cal. App. 2d 494, 118
P.2d 334, 338 (Cal. Dist. Ct. App. 1941). Because Whaley’s
testimony on this subject could be considered untrustworthy
for a number of reasons, including intentional fabrication,
misunderstanding of the impact of the doctors’ statements, or
because the doctors’ statements themselves were casual and
18
ill-considered, and because it did not corroborate direct
evidence in the [doctors’] letters, the Board’s exclusion of his
hearsay testimony was not error.
Id., 648 P.2d at 958 (emphasis omitted).
[¶36] While we agree that Mr. Trump’s hearsay testimony was relevant to the issue of
causation, that testimony, for reasons similar to those stated in Whaley, was not helpful or
trustworthy. According to Mr. Trump’s counsel, Mr. Trump would have testified that
Dr. Carson told him his 2009 injury was related to the original workplace injury.
However, following Mr. Trump’s examination by Dr. Carson in July, 2010, Dr. Carson
noted as follows:
ASSESSMENT/PLAN: Progressive left knee arthritis, likely
traumatic in nature. This could be associated with his
Workers’ Comp injury, but secondary to the long time
differential, it is difficult to make that direct association.
The patient feels like he would like to further work this up.
We discussed options of treatment. He would like to proceed
with an MRI with gadolinium and re-evaluate at that time. He
is considering the possibility of another arthroscopy, which he
brought up on his own, but we cautioned him that there are
significant limitations with this, particularly in light of the
previous surgeries and likely damage that is in the knee, but
we will re-evaluate that in the coming 2 weeks.
(Emphasis added.)3 Mr. Trump’s proposed testimony, as related by his counsel, would
have contradicted Dr. Carson’s written statements that the treatment sought “could be
associated” with Mr. Trump’s 1993 injury, but that “it is difficult to make that direct
association.” Additionally, we note that Mr. Trump’s hearsay testimony had limited
probative value absent Dr. Carson’s ability to explain the reasons supporting his alleged
opinion. In light of these concerns, we are unable to conclude that the exclusion of
Mr. Trump’s hearsay testimony was an abuse of discretion.
[¶37] Affirmed.
3
Dr. Carson’s notes indicate that Mr. Trump told Dr. Carson that he had undergone more than one
surgery on his left knee. The record indicates that Mr. Trump had only one surgery, in 1994, on his left
knee prior to the 2010 arthroscopy.
19