In the Matter of the Worker's Compensation Claim Of: Rick D. Bodily v. State of Wyoming, Ex Rel., Wyoming Workers' Safety & Compensation Division

IN THE SUPREME COURT, STATE OF WYOMING
2014 WY 39
OCTOBER TERM, A.D. 2013
March 13, 2014
IN THE MATTER OF THE WORKER’S
COMPENSATION CLAIM OF:
RICK D. BODILY,
Appellant
(Petitioner),
S-13-0128
v.
STATE OF WYOMING, ex rel.,
WYOMING WORKERS’ SAFETY &
COMPENSATION DIVISION,
Appellee
(Respondent).
Appeal from the District Court of Natrona County
The Honorable David B. Park, Judge
Representing Appellant:
Stephenson D. Emery of Williams, Porter, Day & Neville, P.C., Casper, WY
Representing Appellee:
Peter K. Michael, Wyoming Attorney General; John D. Rossetti, Deputy Attorney
General; Michael J. Finn, Senior Assistant Attorney General; and Jessica Y. Frint,
Assistant Attorney General
Before KITE, C.J., and HILL, VOIGT*, BURKE, and DAVIS, JJ.
*Justice Voigt retired effective January 3, 2014.
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.
HILL, Justice.
[¶1] Rick Bodily suffered work-related injuries to his back for which he received
Worker’s Compensation benefits in 1996 and 2004. In 2008 and 2011, Bodily underwent
surgeries to treat a herniated disc in his low back. The Wyoming Workers’
Compensation Division (Division) denied Bodily’s application for benefits to cover the
two surgeries and any other expenses after June 2005. Bodily appealed, contending that
the herniated disc in his low back was a direct result of his 1996 and 2004 injuries and
was therefore a second compensable injury for which he was entitled to benefits. The
Office of Administrative Hearings (OAH) upheld the denial of benefits, and the district
court affirmed. Bodily appeals, claiming that the denial of benefits was contrary to the
great weight of the evidence. We affirm.
ISSUE
[¶2] Bodily states the issue on appeal as follows:
Is the Office of Administrative Hearings’ decision
denying benefits clearly contrary to the great weight of
evidence proving a causal connection between Bodily’s 1996
and 2004 work injuries and his pain complaints after 2005 –
and resulting surgeries in 2008 and 2011 – such that he
suffered a second compensable injury?
FACTS
[¶3] On March 11, 1996, Bodily suffered a back injury while working for JTL Group in
Casper, Wyoming. Bodily’s injury report described the injury as one to his middle back,
and the emergency room report stated as follows concerning the injury:
This is a 30-year-old white male, who while at work
today, was lifting and turning to put a muffler onto a piece of
heavy machinery. In the course of lifting and twisting he
began having pain in his midback region rather suddenly. He
denies any numbness or tingling anywhere but has significant
muscle spasms in his back which are making him very
uncomfortable. He denies any prior history of problems with
his back. He denies any other areas of pain.
[¶4] The emergency room report on Bodily’s 1996 injury also noted that “[x]-ray
evaluation of the thoracic spine appears unremarkable.” Bodily’s 1996 injury was
diagnosed as a midback strain, and he was prescribed medication, physical therapy, and
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light duty. The Division paid all hospital, medication, and other treatment costs related to
the 1996 incident.
[¶5] On July 7, 2004, Bodily suffered another work-related injury to his back while
working for JTL Group. This time the injury occurred when Bodily turned and twisted
his back while carrying a box down a flight of stairs. Bodily described his 2004 injury as
“lower back pain and right hip pain into the legs,” and he saw a chiropractor for
treatment. A radiological report for x-rays taken on July 9, 2004, reported a “[n]egative
lumbar spine series” and included the following findings:
Routine views of the lumbar spine demonstrate the
disc spaces and vertebral bodies to be of normal height and
alignment. No osteolytic or blastic lesions, spondylolysis,
fracture or other osseous abnormalities are identified.
[¶6] On November 18, 2004, the Division issued a Final Determination Opening Case
for the 2004 back injury. The Division paid the medical expenses related to the 2004
injury, and Bodily continued to receive benefits until June 2, 2005.
[¶7] Thereafter, Bodily sought treatment on a number of occasions for back pain that
was either unrelated to his work at JTL Group or unrelated to work. In October 2005,
Bodily sought treatment for back pain he experienced while pushing a vehicle that was
parked where Bodily’s employer was doing asphalt work. Bodily was working for
Ramshorn Construction at that time and did not file an injury report. In March 2006,
Bodily received treatment for an acute lumbar strain with radicular symptoms that
reportedly occurred when he tried to catch a falling transmission. The record contains no
injury report for the 2006 incident. In March 2007, Bodily received treatment for back
pain experienced after lifting a kitchen table. In May 2007, he received treatment for
continuing back pain, and in September 2007, he received treatment for back pain after
lifting landscape rocks.
[¶8] On October 19, 2007, Bodily consulted Dr. Debra Steele, a neurosurgeon, for
treatment of his back pain. An MRI ordered by Dr. Steele on that same date reported the
following impression:
L5-S1 degenerative disc disease with broad-based disc bulge
eccentric to the left; there is some effacement of the left
lateral recess with possible impingement of the left S1 nerve
root and mild left-sided foraminal impingement. No disc
herniation or significant spinal stenosis.
[¶9] Dr. Steele noted that the MRI showed “decreased disc height with disc desiccation
at the L5-S1 level and a disc herniation slightly eccentric to the left.” Dr. Steele reported
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her impression as “[l]ow back and left lower extremity pain secondary to the L5-S1
level,” and recommended epidural steroid injections.
[¶10] On November 28, 2007, Bodily wrote to the Division requesting benefits to cover
the medical expenses he had incurred in 2007 to treat his back pain. He wrote, in part:
. . . I have enclosed doctor & prescription bills that I have
incurred since March of this year that I have paid for out of
my pocket. As you know from my Workers Comp notes I
have dealt with and this going (sic) back injury originating at
JTL in March 1996. I dealt with back pain from the original
injury the best I could until July 2004 when I requested the
case be reopened because the pain was more than I could
tolerate. At that point I doctored it the best I could until it
was tolerable again. It has continuously gotten worse and I
have had to seek more drastic medical treatment such as
injections to get through daily life. I have requested
Wyoming Neurosurgery to forward you notes and bills that I
have incurred in the last couple months.
[¶11] On December 4, 2007, the Division responded to Bodily with a request for
additional information. The Division received the additional information from Bodily on
December 20, 2007.
[¶12] In the meantime, Bodily continued to see Dr. Steele with reports of continuing and
increased pain with activity and travel. Dr. Steele ordered a repeat MRI, which was done
on January 3, 2008. The MRI report contained the following impression:
1. Small L5-S1 disc protrusion, asymmetric to the left,
which mildly displaces the descending left S1 nerve root
posteriorly.
2. Minimal, if any, right lateral L4-L5 disc protrusion.
Overall, no significant change from 10/19/2007.
[¶13] Dr. Steele reviewed the MRI and reported that the MRI reflected “disc desiccation
present at L5-S1 with a significant disc bulge.” On January 9, 2008, Dr. Steele
performed an L5-S1 microlumbar discectomy. At a January 18, 2008 follow-up
appointment, Bodily reported that he was no longer experiencing back pain, or numbness
and tingling in his lower extremities.
[¶14] On January 28, 2008, the Division issued a final determination denying benefits
for Bodily’s back injury for any treatment after June 2, 2005, stating as the basis for the
denial that such treatment was “not related to the resolved work injury of July 8, 2004.”
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Bodily objected to the denial and requested a hearing, and the matter was referred to the
OAH. The OAH entered summary judgment in favor of the Division, and Bodily
appealed. Bodily v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2011 WY 149, ¶ 1,
265 P.3d 995, 995 (Wyo. 2011). This Court reversed the summary judgment and
remanded for a contested case hearing on the question of whether Bodily’s back pain
after June 2005 was related to his work-related injuries in 1996 and 2005. Id., ¶¶ 16-17,
265 P.3d at 1000-01.
[¶15] While Bodily’s appeal was pending, he received treatment for low back pain that
had returned some time after the surgery by Dr. Steele. On September 27, 2011, Bodily
sought treatment from Dr. Kenneth Pettine and reported to Dr. Pettine that he was
experiencing “chronic severe, incapacitating back pain with some radiating leg symptoms
but predominantly severe ongoing low back pain.” Dr. Pettine diagnosed Bodily as
suffering from “[s]evere discogenic back pain with disc abnormalities at L5-S1.” On
December 14, 2011, Dr. Pettine performed surgery on Bodily’s spine, which included a
complete discectomy with implant of an artificial disc at L5-S1.
[¶16] Following this Court’s decision reversing summary judgment, the Division
referred the denial of Bodily’s claim to the OAH for a contested case hearing. An
evidentiary hearing was held on July 12, 2012, and on August 13, 2012, the OAH issued
its Findings of Fact, Conclusions of Law, and Order upholding the Division’s denial of
benefits. In so ordering, the OAH found that the testimony presented by the Division’s
expert was more persuasive than that presented by Bodily’s treating physician. Relying
on the Division’s expert testimony, the OAH concluded that Bodily’s back pain in 2007
and the surgeries in 2008 and 2011 were not related to the 1996 or 2004 work injuries
and were instead caused by continuing degenerative disc disease.
[¶17] Bodily sought judicial review of the OAH decision, and the district court affirmed.
Bodily thereafter filed a timely notice of appeal.
STANDARD OF REVIEW
[¶18] In an appeal from a district court’s appellate review of an administrative decision,
we review the case as if it came directly from the administrative body, affording no
special deference to the district court’s decision. Stallman v. State ex rel. Wyo. Workers’
Safety & Comp. Div., 2013 WY 28, ¶ 27, 297 P.3d 82, 89 (Wyo. 2013); DeLoge v. State
ex rel. Wyo. Workers’ Safety & Comp. Div., 2011 WY 154, ¶ 5, 264 P.3d 28, 30 (Wyo.
2011). Our review of administrative decisions is governed by the Wyoming
Administrative Procedure Act, which provides:
(c) To the extent necessary to make a decision and when
presented, the reviewing court shall decide all relevant
questions of law, interpret constitutional and statutory
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provisions, and determine the meaning or applicability of the
terms of an agency action. In making the following
determinations, the court shall review the whole record or
those parts of it cited by a party and due account shall be
taken of the rule of prejudicial error. The reviewing court
shall:
(i) Compel agency action unlawfully withheld or
unreasonably delayed; and
(ii) Hold unlawful and set aside agency action, findings and
conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or
otherwise not in accordance with law;
(B) Contrary to constitutional right, power, privilege
or immunity;
(C) In excess of statutory jurisdiction, authority or
limitations or lacking statutory right;
(D) Without observance of procedure required by
law; or
(E) Unsupported by substantial evidence in a case
reviewed on the record of an agency hearing provided
by statute.
Wyo. Stat. Ann. § 16-3-114(c)(ii) (LexisNexis 2013).
[¶19] In keeping with the APA’s statutory framework, our review is as follows:
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).
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
5
examiner’s determination of witness credibility unless it is
clearly contrary to the overwhelming weight of the evidence.
Id.
Trump v. State ex rel. Wyo. Workers’ Comp. Div., 2013 WY 140, ¶¶ 17-18, 312 P.3d 802,
808 (Wyo. 2013).
DISCUSSION
[¶20] Bodily contends that the OAH failed to consider the evidence as a whole and erred
in failing to give weight to Bodily’s testimony and in giving greater weight to the opinion
of the Division’s independent medical examiner than to the opinion of Bodily’s treating
physician, Dr. Pettine. Based on our review of the record and the hearing examiner’s
reasoning in weighing the expert testimony, we conclude that the hearing examiner’s
decision was supported by substantial evidence and not contrary to the overwhelming
weight of the evidence.
[¶21] Bodily asserts that the treatment for his back pain after June 2005 is compensable
under the “second compensable injury rule.” The second compensable injury rule is a
causation rule that “applies when ‘an initial compensable injury ripens into a condition
requiring additional medical intervention.’” In re Workers’ Comp. Claim of Kaczmarek
ex rel. Wyo. Workers’ Safety & Comp. Div., 2009 WY 110, ¶ 9, 215 P.3d 277, 282 (Wyo.
2009) (quoting Yenne–Tully v. State ex rel. Wyo. Workers’ Safety and Compensation
Div., 12 P.3d 170, 172 (Wyo. 2000)). Our analysis under the rule is as follows:
“Under the second compensable injury rule, a subsequent
injury or condition is compensable if it is causally related to
the initial compensable injury.” [Rogers v. State ex rel. Wyo.
Workers’ Safety & Comp. Div., 2012 WY 117, ¶ 14, 284 P.3d
815, 819 (Wyo. 2012).] As with claims for benefits arising
from an initial injury, an employee claiming entitlement to
benefits under the second compensable injury rule has the
burden of proving “a causal connection exists between a
work-related injury and the injury for which worker’s
compensation benefits are being sought.” Davenport, ¶ 21,
268 P.3d at 1044 (citation omitted).
Hoffman v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2012 WY 164, ¶ 9, 291
P.3d 297, 301 (Wyo. 2012).
[¶22] In support of his claim that the 1996 work injury caused his L5-S1 disc herniation,
Bodily presented evidence that included his own testimony and the testimony of two of
his treating physicians, Dr. Steele and Dr. Pettine. In response, the Division presented
6
the opinion of its independent medical examiner, Dr. Anthony Dwyer. We will set forth
the relevant portions of this evidence and then address Bodily’s contentions regarding the
evidence.
[¶23] In support of his causation argument, Bodily testified that following his injury in
1996, his back pain remained constant.
Q. Between 1996 and the fall of 2007 did your
lower back ever return to how it was prior to that first back
injury?
A. I would say there was never a week throughout
that period that I did not spend the evenings on ice and heat,
that I self-medicated myself to try to – um, I did not want to
be a black eye to JTL. I was trying to – um, prosper at this
company. And from what I had heard and been told, to be
filing these huge claims and everything was – it was
definitely not a good check.
So I – I just basically – my – my wife knew when I
came home to have the heating pad ready, the ice pack ready.
And I continued that self-therapy ever since 1996.
[¶24] Bodily also presented the opinion of Dr. Steele. Dr. Steele performed Bodily’s
first surgery, and she provided deposition testimony concerning the cause of the L5-S1
disc herniation she treated. That same deposition testimony was submitted during the
summary judgment and contested case proceedings, and this Court quoted as follows
from the testimony when we reversed the OAH’s entry of summary judgment:
[Question by counsel for Mr. Bodily]. One of the questions I
have is, based upon actually seeing that disc and also having
reviewed it on the MRI, can you date the onset of that
herniation, of the lesion, whatever you call it, and say, yes,
that disc herniated back in 1996 or 1999 or 2004? Can you
say that at all?
[Dr. Steele]. No.
Q. Did it look like something that had occurred within the
last three months or four months? Can you date it that way?
A. Cannot say.
...
7
Q. So, your opinion that you have expressed here today about
the causation of this disc herniation that you addressed in the
surgery on January 9th is dependent upon the accuracy of the
history that Mr. Bodily provided you.
...
A. I don’t know what caused his disc herniation. The history
given by Mr. Bodily does guide the treatment plan, however.
Q. And it’s certainly possible that he herniated his disc back
in 2004 during this incident?
A. It is possible, yes.
Q. It’s not inconceivable.
A. Correct.
Q. It’s medically possible given what you have seen and
your training that he could have herniated his disc back in
2004 as described here on this report.
A. Yes, that is possible.
Later, Dr. Steele testified as follows:
[Question by Division]. My first question is, have you
reviewed any other medical records from any source other
than your own regarding Mr. Bodily?
A. No.
Q. Let me show you what we’re going to mark as Exhibit 3.
This is a record from Dr. Rita Emch. Would you please
review that quickly?
...
Q. Do you see where he goes in and gives a history of lifting
a Buick?
A. Yes.
Q. Could an event such as this have caused the herniation
that you operated on in 2008?
8
A. Yes.
Q. I have another medical record from Urgent Care. Now,
progress notes dated 3–27–07 we’ll mark as Exhibit 4. I
would like you to look at where he gives a history of present
illness on that. Do you see where it says he lifted a kitchen
table on Friday?
A. Yes.
Q. Pain on Sunday in his back and hips radiating down both
legs?
A. Yes.
Q. Could this event have caused the disc herniation at L5–S1
that you operated on in January of 2008?
A. It could have.
Q. I am going to mark this one Number 5. This is from
InstaCare of Casper dated September 2, 2007. If you could
look at this, patient’s complaints there. Do you see where he
complains of lifting landscaping rock and injuring his back?
A. Yes.
Q. Could this event have caused the disc herniation which
you operated on in January of 2008?
A. It could have.
...
Q. Looking at Exhibits A, B and C, which are other records
of Mr. Bodily, is it possible for you to give an opinion to a
reasonable degree of medical probability what caused his disc
herniation which you operated on in January 2008?
A. I cannot knowingly state if he had a disc herniation in
1999 or if any one of these events caused the appearance of
his abnormal disc that was noted on the 2007 MRI.
Bodily, ¶ 8, 265 P.3d at 997-98.
[¶25] Finally, Bodily presented the opinion of Dr. Pettine on the relationship between
Bodily’s 1996 work injury and his later diagnosed disc herniation. Dr. Pettine performed
9
the second surgery on Bodily, replacing the L5-S1 disc with an artificial disc. He
testified as follows on direct examination by Bodily’s counsel:
Q. … What I’m wondering is, in your opinion, to a
reasonable degree of medical probability, is it more probable
than not that the surgery that Dr. Steele performed in 2008
ripened out of or arose from those prior workplace injuries?
...
A. … I definitely believe that’s the case to a degree of
medical probability.
Q. Explain your thinking in that regard, Doctor.
A. Yes. Well, I would relate it – an analogy I just thought of
is if – is if Rick had broken his leg in a work injury in ‘96.
And let’s just say he had that leg treated, but the fracture
never healed. And so basically he’s been walking on a bone
that hasn’t healed in his leg, and intermittently he injures it
and exacerbates his symptoms. You know, I think, likewise,
he fractured or tore his disk in his back in ‘96 and has had
intermittent exacerbations that have gradually gotten worse.
One of those exacerbations occurred in 2008, which required
the discectomy. And, unfortunately, he had ongoing
symptoms consistent with discogenic pain which resulted in
the replacement of his disk, which occurred at the end of
2011.
Q. How does the overlay of degenerative disk disease, what
role does that play?
A. That is a sequelae of the original injury in ‘96. In other
words, it’s well known that if you tear a disk or damage it,
that it undergoes fairly rapid degeneration, which I think Mr.
Bodily demonstrates.
Q. So is it your opinion that the 1996 and the 2004 injuries
eventually developed to the point where he needed that
surgery in 2008 and he needed the surgery in 2011?
A. Yes.
10
Q. And that’s because they – because of the degenerative
disk disease or –
A. No. Because he tore the disk in '96.
[¶26] On cross-examination, Dr. Pettine testified:
Q. And what’s the basis for your opinion that [Bodily] did, in
fact, tear a disk at L5-S1 in 1996?
A. Based on his history and what I observed at the time of
surgery.
Q. And is that based on history solely from the patient, or did
your review medical records or have some other source?
A. No. That was from the patient’s history.
Q. Have you reviewed any of the medical records from that
work injury in 1996?
A. No.
Q. Have you reviewed any medical records from any source
besides your own chart, which we’ve discussed here today –
A. No.
Q. -- indicating Mr. Bodily?
A. No.
Q. And tell me how you can say that, based on the
appearance of the disk at surgery, he must have torn it in
1996.
A. Oh, just based on the tears that I observed.
Q. Could other incidents or injury have caused those tears?
A. It’s possible.
Q. What other types of injuries would that be?
11
A. Oh, if he had a history of falling off a roof or getting
tossed off a horse or something along those lines.
Q. Can lifting heavy objects cause those kinds of tears?
A. It’s possible.
Q. What did Mr. Bodily tell you occurred in the work injury
in 1996?
A. He was trying to pull a muffler off of a piece of
equipment.
Q. Would that, in your opinion, be something that could
cause a disk herniation at L5-S1?
A. Yeah.
Q. Did he tell you that he herniated a lumbar disk in that
work injury in 1996?
A. Yes.
[¶27] The Division retained Dr. Dwyer, an orthopedic surgeon, to perform an
independent medical examination of Bodily. Dr. Dwyer’s report was admitted into
evidence, but he did not testify. In completing his evaluation, Dr. Dwyer interviewed and
examined Bodily, and also reviewed records relating to Bodily’s back injury, including:
1. First Report of Injury
2. Medical report order.
3. Legal documents.
4. Deposition of Debra Steele.
5. Radiology, July 9, 2004 to December 3, 2010.
6. Laboratory studies, February 26, 1999 to January 3,
2008.
7. Cheyenne Regional Medical Center, January 9, 2008
to January 10, 2008.
8. Wyoming Medical Center, November 22, 1989 to
February 7, 2005.
9. Urgent Care Now, March 27, 2007 to May 15, 2007.
10. InstaCare of Casper, September 2, 2007.
11. Kenneth Pettine, M.D., September 27, 2011.
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12. Debra Steele, M.D., October 19, 2007 to February 19,
2008.
13. Rita Emch, M.D., March 11, 1996 to October 14,
2005.
14. Madeline Stout, D.C., July 8, 2004 to May 9, 2005.
[¶28] After completing his interview, examination, and record review, Dr. Dwyer
provided the following assessment of Bodily’s condition:
It is my opinion within medical probability that the patient’s
conditions are as follows:
1. Chronic low back pain.
2. Lumbar degenerative disc disease, specifically at L5-
S1.
3. Status postop left L5-S1 decompression of January
2008 and total disc replacement at L5-S1 of December
2011.
[¶29] In response to the Division’s specific interrogatives, Dr. Dwyer opined as follows:
1. What was the precipitating condition or incident
that is the source of current complaints?
I consider that Mr. Bodily has sustained a number of injuries
to the lumbar spine of a twisting nature, which can be
classified as a lumbar sprain or strain. His current lumbar
condition is also largely related to continuing lumbar disc
degeneration. I base this opinion on the history details given
to me by Mr. Bodily and specifically on the objective
information in the plain x-rays of the lumbar spine dated July
9, 2004, with the impression “Negative lumbar spine series.”
Though there was no MRI on this date, the fact that there was
maintenance of normal lumbar disc height indicates the
reason for the radiologist’s conclusion.
My opinion of continuing disc degeneration is also supported
by the objective findings on the first MRI available to me of
October 19, 2007, which indicates, “There is minimal loss of
disc space height with some end plate sclerosis at the L5-S1
level consistent with degenerative disc disease.”
The next MRI of October 2007 has a report indicating
degenerative disc disease at L5-S1 with the addition of a
13
“broad-based disc bulge slightly eccentric to the left.”
Following this MRI, Dr. Steele noted increasing symptom
following a long Thanksgiving drive.
The next available MRI report of January 3, 2008 indicates
some continuing deterioration, with the impression of “Small
L5-S1 disc protrusion.” The report also states, “There is loss
of T2 disc signal and disc height at L5-S1 secondary to
degenerative disc disease, unchanged.” This MRI report was
comparing the findings to those of the October 2007 report.
However, this is the first radiological report of loss of disc
height in the lumbar spine since the plain lumbar films of July
9, 2004, which indicated “Negative lumbar spine series.”
The last MRI report available to me was that of December 3,
2010, which indicated postoperative changes following the
left L5-S1 procedure. It notes “Loss of disc space height at
L5-S1, lumbar disc otherwise relatively well preserved.”
...
3. Are current symptoms or complaints due to a work
injury claimed from 1996 or 7-8-2004?
The patient affirms that he considers that his current problems
are all related to the injury of 1996 and not to the July 2004
injury.
As stated above, I consider that the patient’s current
symptoms and complaints, and indeed the two surgeries
performed in January 2008 and December 2011, are not
simply and solely related to the listed episodes of trauma but
also to a large degree to continuing degeneration.
4. Was the back surgery at L5-S1 in 2008 required,
reasonable and necessary due to a work related injury?
In my medical opinion within medical probability, Mr. Bodily
sustained a number of twisting injuries to the spine or sprains,
and the initial films of July 9, 2004 indicated a negative
lumbar spine series. It is my opinion that the majority of
causation and need for the lumbar surgery in January 2008
was related to continuing lumbar degeneration and not to the
listed episode of sprain and strain of July 8, 200[4], which
14
was not associated with significant loss of work or lifting
restrictions. History indicates that they responded to the
passage of time and to chiropractic treatment in a way that
would be expected with lumbar sprain or strain.
5. Was the back surgery (artificial disk replacement)
performed on 12/14/11 required, reasonable and
necessary due to a work related injury?
No. My answer to this interrogative is the same as that listed
under interrogative number 4, with the addition that the
trauma to the L5-S1 disc sustained in the January 2008
surgery would be considered to have increased the degree of
lumbar disc degeneration.
[¶30] Where a hearing examiner is presented with conflicting expert testimony on the
question of causation, we recognize that it is the hearing examiner’s task to determine the
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.
Trump, ¶ 22, 312 P.3d at 810 (quoting Hayes v. State ex rel. Wyo. Workers’ Safety &
Comp. Div., 2013 WY 96, ¶ 16, 307 P.3d 843, 849 (Wyo. 2013)).
[¶31] In performing the task of weighing the expert testimony in the present case, the
15
hearing examiner considered four factors this Court has observed as useful in weighing
conflicting medical opinions: the opinion; the reasons for the opinion; the strength of the
opinion; and the qualifications and credibility of the expert giving the opinion. See
Baxter v. Sinclair Oil Corp., 2004 WY 138, ¶ 9, 100 P.3d 427, 431 (Wyo. 2004). The
hearing examiner concluded:
98. Thus, weighing the factors set forth in Baxter,
this Hearing Examiner found Dr. Dwyer’s opinion and, to
some extent, Dr. Steele’s opinions[,] more helpful than the
opinion of Dr. Pettine and weighed Dr. Dwyer’s opinions
more heavily than it weighed the opinions of Dr. Pettine.
This Hearing Examiner finds and concludes Dr. Dwyer’s
opinions that continuing degenerative disc disease was the
primary cause of Bodily’s back condition and pain symptoms
and the two documented work injuries were not, were
supported by the evidence and more clearly explained. The
opinions of Dr. Pettine were not as clearly supported by the
evidence or justified, as he had not reviewed any of Bodily’s
other medical records, and he did not recall reviewing the
imaging studies in the record, other than the MRI he ordered.
....
106. This Hearing Examiner finds and concludes Dr.
Pettine opined Bodily’s pain symptoms and back condition in
2007 and the surgeries in 2008 and 2011 were causally
related to the 1996 work-related injury, based upon the
history of a herniated disc in 1996, provided by Bodily, and
Dr. Pettine’s observations concerning the L5/S1 disc at the
time of the 2011 surgery. This Hearing Examiner finds and
concludes the opinions of Dr. Pettine are given little, if any,
weight, as they are based on a herniated disc in 1996, not
supported by the imaging studies, and that Dr. Pettine had not
reviewed any medical records, other than his own, or
reviewed the other imaging studies other than the one he
ordered.
107. This Hearing Examiner finds and concludes Dr.
Dwyer opined Bodily’s pain complaints in 2007 and the
subsequent surgeries in 2008 and 2011 were not related to the
1996 or 2004 work injuries and were caused by continuing
degenerative disc disease. This Hearing Examiner finds and
concludes Dr. Dwyer’s opinions that continuing degenerative
disc disease was the primary cause of Bodily’s back condition
16
and pain symptoms, and the two documented work injuries
were not, were supported by the evidence and more clearly
explained.
[¶32] Bodily argues that the hearing examiner’s conclusions were flawed because they
disregarded Bodily’s hearing testimony, which Bodily contends was credible evidence of
causation. We disagree that the hearing examiner disregarded Bodily’s testimony or that
Bodily’s testimony was sufficient in itself to establish causation.
[¶33] The hearing examiner made detailed findings concerning Bodily’s testimony,
acknowledged Bodily’s testimony that he had recurring and ongoing back pain from 1996
to 2008, and found Bodily to be credible and believable. The hearing examiner thus
clearly did consider Bodily’s testimony. The hearing examiner also noted, however, that
under the applicable law, expert testimony is required to establish causation unless the
injury is “immediately and directly or naturally and probably the result of an accident.”
We agree with this statement of the law, and our recent application of this law illustrates
why Bodily’s testimony alone was insufficient to establish causation:
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.
Trump, ¶ 32, 312 P.3d at 813-14.
[¶34] This case presents a similar set of circumstances. Drs. Steele, Pettine, and Dwyer
provided varying opinions, but none of them opined that the presence of recurring back
pain alone was sufficient to establish the timing and cause of Bodily’s disc herniation.
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Also, similar to Trump, more than eleven years elapsed between the date of Bodily’s
original work injury in 1996 and his herniation diagnosis in 2007. Because the record
contains no evidence suggesting that Bodily’s herniation “immediately and directly or
naturally and probably” resulted from the 1996 work incident, we find no error in the
hearing examiner’s reliance on the expert testimony, rather than on Bodily’s testimony, to
answer the causation question.
[¶35] We turn then to the conflicting opinions and Bodily’s argument that the hearing
examiner’s weighing of those opinions was likewise flawed. Bodily argues that Dr.
Dwyer’s opinion should have been given less weight for two reasons. First, Bodily
contends that Dr. Dwyer’s opinion lacked foundation because he did not perform either
surgery and never “saw inside” or “laid hands on” Bodily, as did Dr. Steele and Dr.
Pettine. Second, Bodily contends that Dr. Dwyer’s opinion was less reliable because it
was not provided through sworn testimony or subject to cross-examination. We reject the
argument that either of these contentions provides a basis for this Court to reweigh the
conflicting expert opinions.
[¶36] The argument that Dr. Dwyer’s opinion is less credible because he did not operate
on Bodily apparently presumes that an inside view of the disc would reveal some
characteristic of the damage, which would in turn disclose the cause and timing of the
herniation. As reflected in Dr. Pettine’s above-quoted testimony, however, he did not
explain how an inside look at the disc could or did inform his viewpoint. Moreover, even
with his internal look at the tears, Dr. Pettine agreed that other causes of the herniation
were possible. Dr. Pettine’s opinion of the timing and cause of the herniation, based on
the tears he observed, was thus far from definitive. Additionally, Dr. Pettine’s
observations were undermined by the testimony of Dr. Steele’s, who also operated on
Bodily’s herniated L5-S1 disc. Despite her internal view of the damage, Dr. Steele
testified that she could not say what caused the herniation or when it occurred. We
therefore conclude that the record does not support Bodily’s argument that Dr. Pettine’s
opinion should have been afforded greater weight simply because he was one of the
operating physicians.
[¶37] With respect to Bodily’s argument that Dr. Dwyer’s opinion is entitled to less
weight because it was not provided through sworn testimony, we agree with the district
court’s analysis in rejecting this argument:
The Hearing Examiner in this case performed a
thorough review of the case. He was confronted with a
difficult decision; on one hand, [Bodily] presented Dr. Pettine
who testified and was subject to cross-examination.
However, Dr. Pettine conceded that his review of [Bodily’s]
medical history was extremely limited. On the other hand,
the Division presented the report of Dr. Dwyer, whose review
18
of the medical records was more exhaustive, but Dr. Dwyer
did not testify under oath and he was not subjected to cross-
examination. The Hearing Examiner then had to choose
between sworn, but somewhat incomplete testimony at one
end of the spectrum, and a more complete but unsworn or
challenged medical report at the other end.
....
[Bodily] did not object to Dr. Dwyer’s report, and
apparently chose not to either depose him or call him as a
witness in this matter. [Bodily] argues that the report should
be accorded lesser weight than the sworn testimony of Dr.
Pettine, but he offers no authority to support this contention.
Therefore, there is no basis in law to accord this report lesser
weight than was given to the testimony of Dr. Pettine. This
Court does not re-weigh the evidence or second-guess the fact
finder. The Hearing Examiner determined that the opinions
of Dr. Dwyer and Dr. Steele were more persuasive than that
of Dr. Pettine. The evidence in support of this decision is
clearly more than a scintilla of evidence. The Court finds that
the Hearing Examiner’s findings are supported by substantial
evidence in the record.
[¶38] The hearing examiner gave greater weight to Dr. Dwyer’s opinion than to Dr.
Pettine’s opinion because he found Dr. Dwyer’s opinion to be better and more fully
explained and because Dr. Pettine’s opinion was based on an incomplete medical history.
That determination is supported by the record, and we find no error in the hearing
examiner’s decision. See Taylor v. State ex rel. Wyo. Workers’ Safety & Comp. Div.,
2005 WY 148, ¶ 15, 123 P.3d 143, 148 (Wyo. 2005) (“[A] hearing examiner is entitled to
disregard an expert opinion if he finds the opinion unreasonable, not adequately
supported by the facts upon which the opinion is based, or based upon an incomplete and
inaccurate medical history provided by the claimant.”).
CONCLUSION
[¶39] The OAH decision upholding the Division’s denial of benefits was supported by
substantial evidence and not contrary to the overwhelming weight of the evidence.
Affirmed.
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