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

IN THE SUPREME COURT, STATE OF WYOMING
2013 WY 62APRIL TERM, A.D. 2013
May 17, 2013
I N T H E M A T T E R O F T H E W O R K E R ’S
COMPENSATION CLAIM OF:
KIRK JACOBS,
Appellant
(Petitioner),
No. S-12-0220
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:
William G. Hibbler, Bill G. Hibbler, PC, Cheyenne, Wyoming.
Representing Appellee:
Gregory A. Phillips, Attorney General; John D. Rossetti, Deputy Attorney
General; Michael J. Finn, Senior Assistant Attorney General; Kelly Roseberry,
Assistant Attorney General.
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, Kirk Jacobs, after he experienced a workplace injury. Mr. Jacobs sought
payment for prescription medication that he claimed was related to his workplace injury.
The Division denied the claim. Mr. Jacobs requested a contested case hearing, and the
Medical Commission upheld the Division’s determination. Mr. Jacobs appealed to the
district court, which affirmed the Medical Commission’s order. He challenges the district
court’s decision in this appeal. We affirm.
ISSUES
[¶2] Mr. Jacobs states the issues as follows:
I. Was the commission decision holding that Mr. Jacobs
did not meet his burden of proof that he was entitled to
continuation of medical benefits supported by
substantial evidence?
II. Did the Division’s prior determination, assigning a
78% whole body permanent physical impairment
rating, establish as a matter of law that Mr. Jacobs’
chronic abdominal pain was directly related to his
initial compensable toe injury?
III. Did the commission properly apply the recognized
second compensable injury burden of proof?
The Division phrases the issues as follows:
I. Did the Commission apply the proper burden of proof
for a second compensable injury when it required
Jacobs to establish a causal connection between his
abdominal pain and his Keflex ingestion?
II. Did substantial evidence support the Commission’s
determination?
FACTS
[¶3] This is the fifth time Mr. Jacobs’ case has been before this Court. See State ex rel.
Wyo. Workers’ Comp. Div. v. Jacobs, 924 P.2d 982 (Wyo. 1996) (Jacobs I); Jacobs v.
State ex rel. Wyo. Workers’ Safety & Comp. Div., 2004 WY 136, 100 P.3d 848 (Wyo.
1
2004) (Jacobs II); Jacobs v. State ex rel. Wyo. Med. Comm’n, 2005 WY 104, 118 P.3d
441 (Wyo. 2005) (Jacobs III); Jacobs v. State ex rel. Wyo. Workers’ Safety & Comp.
Div., 2009 WY 118, 216 P.3d 1128 (Wyo. 2009) (Jacobs IV). This appeal, however,
represents the first time that the connection between Mr. Jacobs’ workplace injury and his
abdominal pain has been ripe for our review. Despite the long and complicated
procedural history in this case, the facts pertinent to this appeal are relatively
straightforward.
[¶4] Mr. Jacobs experienced a work-related injury in September, 1982, when he
dropped a piece of rebar on his right fifth toe. He had surgery to repair the toe in
December, 1982, and he subsequently developed an infection in the toe. His treating
physician prescribed a ten-day course of Keflex, an antibiotic, to stop the infection from
spreading. After taking the second dose of Keflex, Mr. Jacobs experienced abdominal
pain and swelling. He contacted his treating physician and told him about the pain, but
was instructed to continue taking the antibiotic. Towards the end of his course of Keflex,
Mr. Jacobs began producing loose, bloody stools. He was referred to Dr. Bertrand
Honea, an internist, who diagnosed Mr. Jacobs with antibiotic-induced colitis. Over the
next couple of years, Mr. Jacobs’ colitis periodically returned after he consumed
monosodium glutamate (MSG). The colitis eventually resolved after Mr. Jacobs started
monitoring the ingredients in the food he consumed and adjusted his diet to eliminate
MSG. However, he continued to experience chronic abdominal pain, which he claims
has never subsided.
[¶5] The Workers’ Safety and Compensation Division awarded temporary total
disability benefits to Mr. Jacobs following his workplace injury. In 1990, after initially
questioning whether Mr. Jacobs’ impairment was related to his original workplace injury,
the Division awarded permanent partial impairment benefits to Mr. Jacobs based on a
78% whole body impairment rating provided by Dr. Carol Newlin. The Division paid
impairment and medical benefits to Mr. Jacobs until March, 2003, when the Division
issued a final determination denying benefits relating to treatment of Mr. Jacobs’
abdominal pain. The Division concluded that treatment for Mr. Jacobs’ abdominal pain,
which included prescriptions for pain medication, was not related to his original
workplace injury.
[¶6] Mr. Jacobs objected to the Division’s final determination and requested a
contested case hearing. The Medical Commission held the contested case hearing on
October 28, 2003 to determine whether Mr. Jacobs’ abdominal pain was related to his
original workplace injury. However, as we explained in Jacobs IV, ¶ 7, 216 P.3d at 1131,
before the Commission could issue a decision on the merits, both the Division and
Mr. Jacobs filed competing motions requesting summary judgment on grounds of res
judicata and collateral estoppel. The Commission granted the Division’s motion after
concluding that Mr. Jacobs’ claim for benefits relating to his chronic abdominal pain was
barred by the doctrine of collateral estoppel. Id. We reversed the Commission’s decision
2
in Jacobs III, after finding that the Commission did not have subject matter jurisdiction to
decide the claim. Jacobs IV, ¶ 8, 216 P.3d at 1131. Following remand, the case was
ultimately referred to the Office of Administrative Hearings (OAH). Id., ¶ 9, 216 P.3d at
1131. Based on the evidence in the record, the OAH concluded, as the Medical
Commission had, that Mr. Jacobs’ claim for benefits related to his chronic abdominal
pain had already been decided and was barred under the doctrines of res judicata and
collateral estoppel. Id., ¶ 13, 216 P.3d at 1132-33. We reversed that decision in Jacobs
IV, after finding that, because no prior adjudication had resulted in a judgment on the
merits, the OAH should not have decided the matter on collateral estoppel. As a result,
we remanded the case once again. Id., ¶ 17, 216 P.3d at 1134.
[¶7] Upon remand from Jacobs IV, after both parties submitted disclosure statements
containing numerous exhibits, the Medical Commission held a contested case hearing on
October 28, 2010. After the hearing, the Commission issued an order affirming the
Division’s March 27, 2003 final determination denying benefits relating to treatment of
Mr. Jacobs’ abdominal pain. The Commission concluded that Mr. Jacobs had failed to
provide credible medical evidence to support the contention that his abdominal pain was
causally related to his workplace injury. Mr. Jacobs appealed the Commission’s decision
to the district court, and the district court affirmed. He timely filed this appeal.
STANDARD OF REVIEW
[¶8] 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;
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(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
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). When the hearing examiner
determines that the burdened party failed to meet his burden of proof, we will decide
whether there is substantial evidence to support the agency’s decision to reject the
evidence offered by the burdened party by considering whether that conclusion was
contrary to the overwhelming weight of the evidence in the record as a whole. Dale, ¶
22, 188 P.3d at 561.
[¶9] The arbitrary and capricious standard of review is used as a “safety net” to catch
agency action which prejudices a party’s substantial rights or which may be contrary to
the other review standards under the Administrative Procedure Act, yet is not easily
categorized or fit to any one particular standard. Dale, ¶ 23, 188 P.3d at 561. The
arbitrary and capricious standard applies if the agency failed to admit testimony or other
evidence that was clearly admissible, or failed to provide appropriate findings of fact or
conclusions of law. Id. We review an agency’s conclusions of law de novo. Id., ¶ 26,
188 P.3d at 561.
DISCUSSION
Substantial Evidence
[¶10] In his first issue, Mr. Jacobs contends that the Medical Commission’s decision
upholding the Division’s denial of benefits relating to his abdominal pain was not
supported by substantial evidence. He acknowledges that “The overwhelming weight of
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the evidence presented in this case supports that . . . NO treating or evaluating physician
is able to specifically identify either an etiology or diagnosis for Mr. Jacobs’ chronic
abdominal pain.” He asserts, however, that the temporal relationship between his
workplace injury and his abdominal pain “must be accepted as a sound medical causal
link between injury and pain.” Accordingly, Mr. Jacobs contends that the Commission
erred in disregarding evidence relating to the temporal connection between his ingestion
of Keflex and his abdominal pain.
[¶11] A claimant in a worker’s compensation case has the burden to prove all of the
elements of the claim by a preponderance of the evidence. Kenyon v. State ex rel. Wyo.
Workers’ Safety & Comp. Div., 2011 WY 14, ¶ 22, 247 P.3d 845, 851 (Wyo. 2011). A
preponderance of the evidence is “proof which leads the trier of fact to find that the
existence of the contested fact is more probable than its non-existence.” Id. It is
undisputed that Mr. Jacobs experienced a compensable, work-related injury to his toe in
September, 1982. However, Mr. Jacobs also had the burden to prove, by a
preponderance of the evidence, that his abdominal pain was causally related to his
workplace injury.
“[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)).1
1
Our precedent indicates that medical expert testimony is not always required to establish causation. See,
e.g., Gray v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2008 WY 115, ¶ 17, 193 P.3d 246, 251-52
(Wyo. 2008); Forni v. Pathfinder Mines, 834 P.2d 688, 693 (Wyo. 1992); Hansen v. Mr. D’s Food
5
[¶12] Mr. Jacobs’ abdominal pain was treated and evaluated by over twenty doctors
during the 28 years that elapsed between the onset of his abdominal pain and the Medical
Commission’s final hearing in this case. The Medical Commission devoted
approximately twenty pages of its thirty-page order to the voluminous medical history
and opinions generated by these medical providers. As indicated in the summary that
follows, despite the postulation of various diagnoses, that evidence was uniform in its
failure to provide a medical explanation for Mr. Jacobs’ symptoms.
[¶13] In January, 1984, Mr. Jacobs saw Dr. John Singleton, a Professor of Medicine
within the Division of Gastroenterology at the University of Colorado Health Science
Center, due to his ongoing abdominal discomfort. Dr. Singleton reported that Mr. Jacobs
had a “[p]uzzling complex of symptoms possibly due to monosodium glutamate (MSG)
sensitivity.” Dr. Singleton concluded, under the “Impression” section of his report, that
“I cannot make a connection between these symptoms and the Keflex administration
during which they began.” In December, 1985, Mr. Jacobs sought treatment for his
abdominal pain at the Mayo Clinic. In a letter to Dr. Honea from Dr. Craig Peine, a
gastroenterologist and internist at the Mayo Clinic, Dr. Peine indicated that Mr. Jacobs’
abdominal pain was of “unknown etiology” and suggested additional diagnoses:
When seen in Neurology by Dr. M. Silber, they found
Mr. Jacobs’ EMG within normal limits and requested a
Minnesota Multiphasic Personality Inventory, the
gastroenterology consultation, and possibly a psychiatric
consultation. It was Doctor Silber’s opinion that there was no
clinical evidence to suggest a neuropathy or radiculopathy
and that the patient’s symptoms may represent functional
disease or irritable bowel syndrome.
It was our impression that Mr. Jacobs was
experiencing abdominal wall discomfort of unknown
etiology. We were concerned with his excessive use of
Center, 827 P.2d 371, 373 (Wyo. 1992). However, in Thornberg v. State ex rel. Wyo. Workers’ Comp.
Div., 913 P.2d 863, 867 (Wyo. 1996), we recognized that “under certain circumstances, medical
testimony may be essential to establish a causal connection.” Similarly, in Middlemass, ¶ 34, 259 P.3d at
1169, we stated that “in many cases expert testimony will be required.” In those decisions, we indicated
that expert testimony may not be necessary where the medical condition complained of is “immediately
and directly or naturally and probably” the result of the workplace incident. Id., ¶ 33, 259 P.3d at 1169;
Thornberg, 913 P.2d at 867. Mr. Jacobs does not claim that the connection between his workplace
accident and his abdominal pain can be established by lay testimony, and the circumstances of this case
do not suggest that a connection could be established absent expert testimony.
6
alcohol and felt that the elevation in his liver functions was
secondary to this. We felt that the mild elevation in his serum
bilirubin probably represented Gilbert’s syndrome.
Although Mr. Jacobs was scheduled for a follow-up visit at the Mayo Clinic, Ms. Jacobs
testified that Mr. Jacobs did not keep the appointment because the physicians at the Mayo
Clinic had administered the EMG “on the wrong side” of Mr. Jacobs. In response to this
testimony, the Medical Commission stated that
Ms. Jacobs’ statement about the EMG being done incorrectly
by the Mayo Clinic is not credible. All electromyogram
(EMG) studies are done bilaterally for comparison purposes.
Even though we were not provided the actual EMG studies
that were conducted, we feel that Mr. Jacobs missed an
opportunity for follow-up care and diagnostics with the Mayo
Clinic, which is recognized throughout the medical
community as a premier medical facility.
[¶14] In June, 1987, Mr. Jacobs saw Dr. James Bush, an internist practicing in Fort
Collins, Colorado, for an evaluation of his chronic abdominal pain. In a letter written to
Mr. Jacobs’ counsel in November, 1987, Dr. Bush stated that “My diagnosis currently is
that he is suffering from irritable bowel syndrome; MSG sensitivity; question intermittent
inflammatory bowel disease. However no signs of active inflammatory process at this
time.” Dr. Bush further stated that
[T]he relationship of his current condition to the
administration of Keflex is a difficult question. Certainly
historically his problems seem to all date from that time.
Unfortunately, I can find no direct causal relationship
between the disease process at that time and his current
symptoms. One could certainly postulate that as he had no
intestinal symptoms prior to this, that there might be some
direct cause and effect. I have been unaware of this, and also
my consult in gastroenterology did not feel there was a direct
cause and effect relationship.
As indicated in his letter, Dr. Bush had referred Mr. Jacobs to Dr. Robert Simmons, a
gastroenterologist, who saw Mr. Jacobs in Fort Collins in September, 1987. In a letter to
Dr. Bush, Dr. Simmons stated as follows:
My feeling is that [t]his patient has irritable bowel syndrome.
Post prandial diarrhea, past history of hard stool, [and]
abdominal pain and tenderness are consistent with this
7
diagnosis. The presumably negative work-up also supports
this. The poor response to a variety of medications, which are
often helpful in irritable bowel syndrome[,] may represent
simply therapeutic failures of perhaps ineffective secondary
gain. It is somewhat critical as to what this patient[’]s
organic work-up consists of. The history of abnormal
sigmoidoscopies is concerning, but I think not likely real.
The history of antibiotic associated colitis is quite atypical
and I question whether he ever had that disorder. I feel that
his problem is gastrointestinal, but not likely organic.
[¶15] In July, 1988, after a review of Mr. Jacobs’ medical records, Dr. Charles Lyford,
an internist and gastroenterologist, stated in an affidavit that he agreed with the
conclusions reached by Drs. Singleton, Bush, and Simmons as to the lack of causal
connection between Mr. Jacobs’ injury and his abdominal symptoms:
13. It is [Dr. Lyford’s] opinion that Dr. John W. Singleton of
the University of Colorado Health Science Center is correct in
his conclusion that there was no causal connection between
the “puzzling complex of symptoms possibly due to
monosodium glutamate sensitivity” and the ingestion of
KEFLEX. . . .
14. It is [Dr. Lyford’s] further opinion that Dr. James F. Bush
and Robert F. Simmons are correct in their conclusion that
there is no causal connection between the ingestion of
KEFLEX and the symptoms exhibited by Mr. Jacobs after
September of 1983.
15. It is [Dr. Lyford’s] opinion that the complex of symptoms
presented by Mr. Jacobs after September of 1983 represents a
complex that is unique and which has not previously been
reported or expected from the ingestion of drugs such as
KEFLEX if, indeed, any relationship exists between the
complex of symptoms and the use of KEFLEX.
[¶16] In addition to the evidence indicating that the cause of Mr. Jacobs’ abdominal pain
was unknown, the Medical Commission was also presented with evidence of Mr. Jacobs’
heavy narcotic use, which suggested a “non-physiologic component” to Mr. Jacobs’ pain
disorder, as well as the possibility that Mr. Jacobs was motivated by a desire for
secondary gain. In June, 1998, at the request of the Division, Mr. Jacobs saw Dr. Ron
Carbaugh, a psychologist, for a psychosocial evaluation. Dr. Carbaugh noted that
Mr. Jacobs was taking MS Contin, morphine, and lorazepam for his abdominal pain. In
8
the “Conclusions and Recommendations” section of his assessment, Dr. Carbaugh stated
as follows:
This individual is currently very dependent on narcotics for
pain relief. However, despite this narcotic intake, he remains
quite dysfunctional. Neither he nor his wife are interested in
pain management strategies, and their goal appears to be to
get . . . Dr. Port[e]noy at Beth Israel in New York to have a
morphine pump inserted for pain relief.
Given Mr. Jacobs’ level of dysfunction and his opiate
dependence, he is a candidate for a pain management
program. However, an inpatient drug detoxification program
would need to be considered before a pain management
program. Prognosis for a successful outcome would be poor
at this time, since the patient’s motivation appears to be to
maintain his narcotic dependence through the use of a
morphine pump. There appears to be little distress on either
his or [his] wife’s part, given his current level of dysfunction.
As a result, they are not receptive to considering a pain
management program.
The results of this assessment do suggest a non-
physiologic component to Mr. Jacobs’ pain disorder. It
would appear that [t]his client’s pain experience is being
significantly and adversely maintained for psychosocial
reasons. Likely secondary gain issues include (1) dependency
gratification, allowing him to obtain support from others, (2)
allowing him to avoid responsibilities and demands, (3) a way
to maintain his opiate dependence.
[¶17] In September, 1998, Mr. Jacobs was seen by Dr. Russell Portenoy, a physician
specializing in pain management at the Beth Israel Medical Center in New York. The
results of that evaluation were summed up in a review of Mr. Jacobs’ medical records
conducted by Dr. Peter Perakos, a gastroenterologist in Cheyenne, in October, 1998:
During the course of his multiple evaluations, there has been
no abnormality identified in the GI system to explain his pain.
The records from the Beth Israel Medical Center Pain
Medicine & Palliative Care initial evaluation are quite
revealing. “We cannot establish the etiology of this pain from
physical exam and history, could be any intramedullary
process, neurologic disease, or could be a visceral problem
9
that set off a chronic pain syndrome. For now it is a disease
of its own.”
Further, Dr. Perakos noted that Mr. Jacobs “has at this point now become profoundly
addicted to narcotics with 3200 mg of MS CONTIN per day and an extra 160 mg of oral
MORPHINE every two to four hours.” Dr. Perakos concluded that, “In summary,
Mr. Jacobs is a narcotic addict with chronic pain of unknown etiology and unable to
perform many activities of daily living. He is dependent on others for his survival and
has become an invalid in the process.”
[¶18] The issue of Mr. Jacobs’ psychologic condition was also raised by Dr. Bruce
Lockwood, a rehabilitation specialist who provided an independent medical evaluation
(IME) of Mr. Jacobs in relation to his claim for worker’s compensation benefits for his
right and left total knee replacements. Dr. Lockwood concluded that Mr. Jacobs’ knee
replacements were not related to his 1982 workplace injury.2 Dr. Lockwood also noted
that he was concerned about the unidentified cause of Mr. Jacobs’ abdominal pain, as
well as his narcotics use:
Furthermore, in reviewing the medical records made
available to me, I have significant concerns about the lack of
a specific etiology behind [Mr. Jacobs’] recurrent abdominal
pain. It may very well have been that he [had] a Keflex-
induced pseudomembranous colitis in 1983. However, his
consistent abdominal pain and the etiology behind this
abdominal pain is not clear to me in reviewing the medical
records, nor is it clear to Mr. Jacobs and his wife.
Thus, it is exceedingly difficult to grasp the etiology
behind his recurrent abdominal pain, let alone the lack of
specific diagnosis causing this pain with multiple health care
providers and their reviews being completed and again the
specific cause not being clear. It also brings into concern his
significant amount of medications which raise concerns about
their use for this chronic pain of unclear etiology. These
include methadone, lorazepam, and Ritalin. Again, I would
recommend careful consideration of his psychologic
condition and how this may impact his perception of pain and
2
The Workers’ Compensation Division ultimately issued a final determination denying benefits relating
to Mr. Jacobs’ knee replacements. In Jacobs II, ¶ 1, 100 P.3d at 849, we noted that Mr. Jacobs did not
object to the Division’s denial of benefits relating to the knee replacements.
10
need for these medications. I would recommend critical
continued evaluations of his overall general medical condition
and his need for these medications in concert with addressing
his psychologic condition and how this may impact those
factors.
A second IME was provided by Dr. Harmon Davis, an internist practicing in Cheyenne,
in conjunction with Mr. Jacobs’ total knee replacements. In his report, Dr. Davis stated:
In reviewing and analyzing all of the data, I think that
we have a great deal of difficulty. I think that a case can be
made that [Mr. Jacobs’] current condition does relate to the
original injury. This is based on the facts of the case in that
he obviously had the onset of this unremitting chronic
abdominal pain after being given Keflex. The difficulty I
have is why that should happen. Other than the patient’s
report, I can find no documentation that this should happen.
It is quite clear that the patient relates his chronic abdominal
pain to the taking of the Keflex which was for the foot injury.
The problem is, what did the Keflex cause, if anything, or is
this an independent process and I am not capable of ferreting
those two factors out. It is quite clear to me that over the last
ten years, the patient has had very little work done toward
attempting to diagnose his abdominal pain and its cause. This
makes me very uncomfortable. What the effort has been
mostly has been to control the patient’s pain.
Ultimately, Dr. Davis concluded that “I truly feel that at the present time, we have a
gentleman who has severe neuropathic abdominal pain of an undetermined etiology
which may or may not relate to the Keflex which was originally given to him for his
original injury and we really cannot go beyond that statement.”
[¶19] After reviewing all of the evidence, the Medical Commission stated that
This Medical Panel has carefully reviewed the
voluminous medical records and reports submitted by the
parties and finds that Mr. Jacobs has not met his burden of
proof in establishing that his chronic abdominal pain is
causally related to the work-related injury of September 24,
1982, and the complications caused by the ingestion of
Keflex to treat the work injury. Mr. Jacobs’ medical workups
have been extensive and far reaching. He has been sent to the
Mayo Clinic, although he failed to follow-up with that
11
institution for additional diagnostic testing. Mr. Jacobs was
sent to Beth Israel Medical Center in New York City and to
specialists in Washington State, and in Colorado. He has
undergone numerous diagnostic workups from a variety of
specialists, as outlined above, but has not been able to provide
any credible medical evidence to show that his chronic
ongoing abdominal pain is related to the work injury or the
complications that derived from that injury. It has been noted
that a wide variety of non-work-related conditions could also
explain Mr. Jacobs’ chronic abdominal pain, including an
unrelated thoracic injury, liver dysfunction (fatty liver and
elevated CPK levels), a hiatal hernia, a rib injury, Gilbert’s
Syndrome, somatic or psychiatric issues, porphyria,
fibromyalgia or other conditions.
The Commission concluded that “It is clear that the Keflex induced colitis condition has
long since resolved and no medical specialist has been able to provide an explanation of
how a colitis condition would lead to the chronic abdominal pain that has persisted all
these years.”
[¶20] Mr. Jacobs concedes that neither his treatment providers nor the independent
medical experts employed in this case were able to provide a medical explanation for his
chronic pain symptoms. However, Mr. Jacobs contends that the Commission erred in
disregarding evidence indicating a causal connection based on the temporal relationship
between his workplace injury and his abdominal pain. In support of the claim that his
abdominal pain resulted from his workplace injury, Mr. Jacobs emphasizes the deposition
testimony of Dr. Albert Brady, an oncologist who treated Mr. Jacobs in 1990. Dr. Brady
testified that he believed that Mr. Jacobs’ ongoing pain was caused by the Keflex. More
specifically, in response to a request for his opinion as to the cause of Mr. Jacobs’
abdominal pain, Dr. Brady stated that:
Well, you know, there were [sic] just a sequence of events
that you all are painfully aware of, we’re all painfully aware
of. And it started with the injury and then the infection and
the antibiotics. And it seems that in some way the antibiotics
produced a gastrointestinal syndrome, which they’re known
to do, that then became the sort of inciting or etiologic event
in terms of creating this neuropathic syndrome that Kirk has.
Mr. Jacobs also points to the deposition testimony of Dr. Robert Seamon, an internist
who treated Mr. Jacobs between July 16, 2010 and August 25, 2010, approximately 27
years after Mr. Jacobs’ abdominal pain began. Based on the medical history provided by
Mr. Jacobs, Dr. Seamon stated that he thought it was “more probable than not” that
12
Mr. Jacobs’ abdominal pain was related to his ingestion of Keflex. Finally, Mr. Jacobs
relies on the permanent impairment evaluation performed by Dr. Newlin in 1990.
Mr. Jacobs notes that, in her report, Dr. Newlin stated that his abdominal pain was
“apparently a progression of neuropathic change (possible reflex sympathetic dystrophy)
associated with the reaction to antibiotic, 1983.”
[¶21] The record reveals, however, that the Medical Commission weighed all of this
evidence. First, the Commission briefly addressed Dr. Newlin’s impairment rating, in
which she indicated that Mr. Jacobs’ abdominal pain was “apparently” related to his
colitis. However, Dr. Newlin offered no medical explanation to support such a
connection. As a result, the Medical Commission questioned the validity of Dr. Newlin’s
impairment rating. More significantly, the Commission found that Dr. Brady provided
the strongest opinion in support of a causal connection between Mr. Jacobs’ workplace
injury and his abdominal pain. The Commission noted, however, that even Dr. Brady’s
records indicated that Mr. Jacobs’ chronic pain was of “unknown [etiology].” Indeed, in
his deposition, Dr. Brady acknowledged that in formulating his opinion as to the cause of
Mr. Jacobs’ abdominal pain, he was “most impressed with the sort of temporal
relationship and the apparent sequence of events.” When asked to set aside the temporal
relationship between Mr. Jacobs’ colitis and the onset of his chronic pain symptoms,
Dr. Brady agreed that colitis would be unlikely to cause a 20-year pain syndrome.
[¶22] The Commission also considered Dr. Seamon’s testimony regarding the temporal
relationship between Mr. Jacobs’ colitis and his pain symptoms. The Commission noted
that when asked whether he agreed with Dr. Brady’s testimony regarding the cause of
Mr. Jacobs’ abdominal pain, Dr. Seamon stated that
Well, what I’d probably have to say at the outset, in general
I’ve only seen Mr. Jacobs over the short period of time he’s
been a patient here. The broader concept of what Dr. Brady
is getting at is that even though it appears that we can’t make
a clear connection between the colitis illness, it seems likely,
at least from the standpoint of the timing, that the two are
connected, even if we can’t provide a mechanism to explain it
readily.
Dr. Seamon also stated that Mr. Jacobs’ symptoms could have resulted from irritable
bowel syndrome, which had been previously diagnosed by several of Mr. Jacobs’ medical
providers.
Well, irritable bowel can certainly cause abdominal
pain. And I think that’s probably – that’s probably the most
basic statement that you can make about it. Whether –
Unfortunately, for irritable bowel there’s no simple diagnostic
13
test that you can actually apply to make the diagnosis. It’s
partially a diagnosis of exclusion, which means you’ve
excluded other potential causes for [gastro-intestinal]
symptoms and abdominal pain.
So I think it would be like any of the other things. It
might be proposed for the mechanism of Mr. Jacobs’ pain as
a possible explanation.
Unfortunately, in some ways it’s a harder diagnosis to
establish, and many times a harder diagnosis to actually
effectively treat.
So I don’t know how one could rule it in or rule it out
in his situation.
It doesn’t seem like from what’s been stated, at least in
the available records, and even in this to some extent, that the
treatment for irritable bowel, if that’s what it was, was
effective for him.
So I’m afraid I can’t really shed too much light on that.
Dr. Seamon testified that it was difficult to say whether Mr. Jacobs’ alcoholism
contributed to his abdominal pain and stated that Mr. Jacobs had not disclosed that he
suffers abdominal pain if he consumes MSG. Additionally, Dr. Seamon acknowledged
that there were numerous other potential explanations for Mr. Jacobs’ abdominal pain
and conceded that “the only thing that argues for the connection between the illness in
1982, and the subsequent development of the abdominal pain is just the timing.” Finally,
Dr. Seamon conceded that establishing any causal connection between Mr. Jacobs’
ingestion of Keflex and his abdominal pain was “speculative from the standpoint that you
cannot readily make a direct logical connection.”
[¶23] Based on this testimony, the Medical Commission disregarded Dr. Seamon’s
opinion:
The opinion of Dr. Robert Seamon is disregarded in this
matter. Dr. Seamon has only been treating Mr. Jacobs for a
brief period of time, and has only a limited working
knowledge of Mr. Jacobs’ extensive medical history. His
opinion was primarily based upon a “temporal connection”
that exists between Mr. Jacobs’ abdominal pain and the date
of the work injury, but he could not point to any credible
14
medical evidence that would explain the connection beyond
the timing of the condition. This Panel notes that the majority
of physicians in this case have also noted the temporal
connection in this matter, even though the Keflex induced
colitis has long since resolved. There has been no credible
explanation by Dr. Seamon or others that explains how the
colitis or other complications of the work-related injury
would provide a basis for Mr. Jacobs’ chronic abdominal pain
condition that is now approximately 28-years in duration. It
is noteworthy that even Mr. Jacobs’ strongest medical
advocate, Dr. Brady, was unable to explain the etiology of the
condition and its relationship to the work injury.
[¶24] The Medical Commission’s decision to disregard the testimony of Drs. Brady and
Seamon is consistent with our precedent holding that the Medical Commission is not
bound to accept speculative medical testimony. In Anastos, 120 P.3d 658, the Medical
Commission was presented with similar testimony regarding a temporal relationship
between the claimant’s workplace accident and the subsequent onset of headaches.
While none of the doctors who examined and treated
Anastos were able definitively to diagnose the cause of his
headaches, Drs. Digre, Crane, and Whipp all acknowledged
that based on information provided by Anastos, there seemed
to be a temporal relationship between the reported headaches
and his injury. However, the Medical Commission concluded
that
the doctors who examined Mr. Anastos are unclear as
to the cause of these headaches. At best the various
doctors speculate that Mr. Anastos’ headaches may be
migraines, muscle-tension, low pressure, cervical,
positional or exertional.
We have held that speculative medical testimony is
insufficient to satisfy a claimant’s burden of proof. Frazier v.
State ex rel. Wyoming Workers’ Safety and Compensation
Div., 997 P.2d 487, 490 (Wyo. 2000). None of the tests
Anastos underwent revealed any physiological problem
causing his headaches, and no doctor ever definitively
diagnosed a cause or proper treatment.
Id., ¶ 21, 120 P.3d at 666-67. We concluded that “Because of their speculative nature,
the Medical Commission was not bound to accept the expert medical opinions in the
15
instant case.” Id., ¶ 24, 120 P.3d at 667. After noting that the Medical Commission also
determined that the claimant’s testimony regarding the cause of his headaches lacked
credibility, we affirmed the Medical Commission’s conclusion that the claimant had
failed to meet his burden of proof. Id., ¶ 24, 120 P.3d at 667-68. Similarly, in the present
case, in light of the speculative nature of Dr. Brady’s and Dr. Seamon’s testimony, the
Medical Commission did not err in concluding their testimony was insufficient to satisfy
Mr. Jacobs’ burden of proof.
[¶25] In sum, after weighing all of the evidence presented, the Medical Commission
concluded that the “overwhelming weight of the evidence submitted in this matter fails to
identify a causal link between [Mr. Jacobs’] current abdominal complaints and his 1982
work-related injury.” We find substantial evidence to support that conclusion, as well as
the Commission’s decision to reject the opinions of Drs. Brady and Seamon, which were
based solely on the timing of Mr. Jacobs’ abdominal pain. Because Mr. Jacobs was
unable to establish a causal connection between his workplace injury and his abdominal
pain, the Commission properly concluded that Mr. Jacobs failed to satisfy his burden of
proving his entitlement to benefits.
Effect of Division’s 1990 Formal Determination
[¶26] In his next issue, Mr. Jacobs contends that the Division’s formal determination,
issued March 9, 1990, awarding permanent partial impairment benefits to Mr. Jacobs,
constitutes “unrefuted substantial evidence that permanently determined the causal
relationship between the work-related injury and the chronic abdominal pain[.]”
(Emphasis omitted.) We find no merit in this claim. As noted above, the Division’s
determination was based on the impairment rating provided by Dr. Newlin. That
impairment rating, however, was rejected by the Medical Commission because it
provided no medical explanation to support a connection between Mr. Jacobs’ workplace
injury and his abdominal pain. Additionally, that impairment rating was not “unrefuted,”
as asserted by Mr. Jacobs. After the impairment rating was issued, in 1990, Mr. Jacobs
was treated and evaluated by over a dozen medical experts. As noted in our discussion of
Mr. Jacobs’ first issue, after weighing those opinions, the Medical Commission
concluded that they did not establish a causal connection between Mr. Jacobs’ workplace
accident and his abdominal pain.
[¶27] Further, as we have previously noted, the Division’s award of benefits does not
guarantee the payment of future benefits:
The Division’s uncontested award of benefits is not a
final adjudication that precludes the Division from
challenging future benefits. Tenorio v. State ex rel. Wyoming
Workers’ Compensation Div., 931 P.2d 234, 239 (Wyo.
1997). The statutory language of the Wyoming Workers’
16
Compensation Act confers finality on the benefits paid to the
employee through uncontested determinations, subject to the
exceptions found in Wyo. Stat. Ann. § 27-14-605. Id. [at
240]. The statutory language, however, does not guarantee a
claimant future benefits on the basis of a prior award nor does
public policy favor the payment of an unjustified worker’s
compensation claim. Id. Therefore, an employee/claimant
must prove that he was entitled to receive benefits for all
outstanding claims despite previous awards for the same
injury. Id. [at 239].
Hall, ¶ 14, 37 P.3d at 377. Indeed, we stated as much in Jacobs IV, ¶ 15, 216 P.3d at
1133, in response to Mr. Jacobs’ claim that the Division was precluded from denying
benefits relating to his abdominal pain:
In the proceedings below and in this appeal, the appellant
asserted that under the doctrine of collateral estoppel the
Division is precluded from denying his claims for benefits.
His argument is essentially based on the fact that the Division
previously paid for the pain medication to treat his abdominal
pain and recognized the existence of the condition in Jacobs
I. We have said that a claimant is not guaranteed future
benefits on the basis of a prior award. Snyder v. State ex rel.
Wyo. Workers’ Comp. Div., 957 P.2d 289, 293 (Wyo. 1998).
. . . Although we mentioned the appellant’s abdominal pain
in Jacobs I, the compensability of that condition was not at
issue and, as we have already discussed, the record on appeal
contains no order or final decision on the merits of that claim
that would preclude the Division from later challenging the
compensability of the appellant’s chronic abdominal pain.
Contrary to Mr. Jacobs’ assertion, the Division’s award of permanent partial impairment
benefits in 1990 does not, by itself, satisfy his burden of proving that his abdominal pain
was related to his workplace injury.
Burden of Proof
[¶28] In his final issue, Mr. Jacobs contends that the Medical Commission did not apply
the correct burden of proof to Mr. Jacobs’ claim that his injury was causally related to his
workplace accident. Mr. Jacobs correctly recognizes that he was required to prove all of
the elements of his claim by a preponderance of the evidence. Anastos, ¶ 20, 120 P.3d at
666. He asserts, however, that the Commission applied a more onerous evidentiary
burden. He bases this claim on the Commission’s statement that it did not find “credible
17
medical evidence in the record that supports Mr. Jacobs’ contention that his longstanding
abdominal pain is directly caused by the work-related injury[.]” According to
Mr. Jacobs, this statement indicates that the Commission required him “to prove that
there IS a direct causal relationship between his chronic abdominal pain and the work-
related compensable toe injury.” (Emphasis in original.) In other words, Mr. Jacobs
claims that the Commission required him to prove, with absolute certainty, instead of by
a preponderance of the evidence, that his abdominal pain was related to his workplace
accident. Again, we find no merit in Mr. Jacobs’ claim.
[¶29] Mr. Jacobs was required to prove, by a preponderance of the evidence, that there
was a direct causal relationship between his accident and his abdominal pain. The record
reveals that the Commission correctly applied the requisite burden of proof. The
Commission’s order correctly cites the applicable law regarding the burden of proof and
demonstrates its understanding that the claimant had the burden of proving the elements
of his claim by a preponderance of the evidence. The Commission concluded that
Mr. Jacobs “failed to present sufficient credible evidence to establish that his current
abdominal care and treatment is causally related to the work-related injury.” Although
the Commission did not directly state that Mr. Jacobs failed to prove the elements “by a
preponderance of the evidence,” it is clear from the context of the Commission’s order
that it applied the burden correctly. Accordingly, we find no error in the Commission’s
application of Mr. Jacobs’ burden of proof.
[¶30] Affirmed.
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