IN THE SUPREME COURT, STATE OF WYOMING
2015 WY 1
OCTOBER TERM, A.D. 2014
January 6, 2015
IN THE MATTER OF THE WORKER’S
COMPENSATION CLAIM OF DAVID J.
HARTMANN.
STATE OF WYOMING, ex rel.,
DEPARTMENT OF WORKFORCE
SERVICES, WORKERS’ SAFETY AND
COMPENSATION DIVISION,
S-14-0105
Appellant
(Respondent),
v.
DAVID J. HARTMANN,
Appellee
(Petitioner).
Appeal from the District Court of Campbell County
The Honorable Michael N. Deegan, Judge
Representing Appellant:
Peter K. Michael, Wyoming Attorney General; John D. Rossetti, Deputy Attorney
General; Michael J. Finn, Senior Assistant Attorney General; Samantha Caselli,
Assistant Attorney General.
Representing Appellee:
Peter J. Timbers of Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming.
Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, 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 typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KITE, Justice.
[¶1] The Office of Administrative Hearings (OAH) found that David J. Hartmann failed
to prove a causal link between his dizzy spells and an earlier work injury. Mr. Hartmann
petitioned for review in district court, which held that the OAH failed to apply the second
compensable injury rule and its decision was not supported by substantial evidence. The
district court reversed the OAH determination and remanded the case for reconsideration
under the second compensable injury rule.
[¶2] Rather than pursuing the case before the OAH, the Wyoming Workers’ Safety and
Compensation Division (Division) appealed to this Court claiming the district court’s
decision was in error. We hold that the district court’s ruling was not an appealable
order. However, we exercise our discretion to convert the notice of appeal to a petition
for review. We conclude the OAH failed to invoke and apply the applicable law. We
further conclude that when the applicable law is applied, the OAH decision to reject Mr.
Hartmann’s evidence is against the overwhelming weight of the evidence. We affirm the
district court’s order to the extent it held the OAH failed to apply the second
compensable injury rule but reverse the order remanding the case to the OAH for
reconsideration. Applying the second compensable injury rule, we hold that Mr.
Hartmann was entitled to benefits. We remand to the district court for an order
remanding the case to the OAH for entry of an order awarding Mr. Hartmann benefits.
ISSUES
[¶3] The issues we consider are:
1. Whether the district court’s order is a final appealable order.
2. Whether the OAH properly applied the applicable law.
3. Whether the OAH findings and conclusions are supported by substantial evidence
when the applicable law is applied.
FACTS
[¶4] On February 24, 2010, Mr. Hartmann was driving a 240-ton truck at the North
Antelope Rochelle Mine in the course of his employment with Peabody Powder River
Services, LLC when he was struck from behind by a shovel bucket. His testimony that
the shovel bucket was large enough to hold a couple of Volkswagen Beetles was
undisputed. The shovel bucket hit the headache rack, a protective steel barrier between
the cab and bed of the truck. Mr. Hartmann testified that when the shovel bucket hit the
truck, his body went numb, he was nearly knocked unconscious and he did not know
where he was for a short time. He was taken to the emergency room where he
1
complained of neck pain. After an x-ray and CT scan, the emergency room physician
diagnosed Mr. Hartmann with cervical strain and released him to return to work with the
recommendation that he follow up in three to seven days with Dr. Lawrence Jenkins, a
doctor Mr. Hartmann had previously seen for symptoms related to a C5-6 disc herniation.
[¶5] On March 4, 2010, Mr. Hartmann saw Dr. Jenkins. Mr. Hartmann reported that he
was having persistent numbness and tingling in his arms as a result of the February 24,
2010, work injury. Dr. Jenkins concluded that the injury had exacerbated the C5-6
herniation. Expressing hope that the exacerbation was temporary, Dr. Jenkins advised
Mr. Hartmann to take an anti-inflammatory daily, prescribed physical therapy and asked
him to return in three weeks.
[¶6] On April 6, 2010, Mr. Hartmann saw Dr. Kenneth Pettine. Mr. Hartmann reported at
that time that his neck symptoms had gotten much worse. Upon examining Mr.
Hartmann, Dr. Pettine found:
He has a 50% loss of cervical motion and pain to palpation in
the paraspinal/suboccipital area with muscle spasm present.
He has a positive Spurling’s compression test. He had motor
weakness and sensory changes in a C6 distribution. There is
minimal evidence of intrinsic shoulder/elbow pathology but
no evidence of acute skin changes, distal swelling or vascular
changes. 1
Dr. Pettine advised Mr. Hartmann there was a 90% chance his condition would improve
within three months and prescribed an anti-inflammatory.
[¶7] Mr. Hartmann returned to Dr. Pettine’s office on June 8, 2010, complaining of
ongoing neck pain, headaches and interscapular pain. Comparing a new MRI to earlier
MRIs, Dr. Pettine found “a definite disc herniation at C5-6.” Dr. Pettine advised Mr.
Hartmann that his options were to live with his symptoms or undergo surgery. He noted
that Mr. Hartmann was “quite miserable and unable to work due to his symptoms” and
“anxious to proceed with an artificial disc replacement in his cervical spine in an attempt
to decrease pain and increase function.”
[¶8] At a subsequent exam in October, 2010, Dr. Pettine reported that Mr. Hartmann’s
neck continued to be a problem – “[h]e has ongoing severe neck pain, headaches,
interscapular pain and radiating arm pain.” To address those issues, Dr. Pettine
1
Dr. Pettine also noted Mr. Hartmann had “motor weakness and sensory changes in an L5 and S1 type
distribution.” To resolve that issue, Dr. Pettine performed a discectomy at L5-S1 in the summer of 2010.
That injury is the subject of a separate workers’ compensation case and is not at issue in this appeal.
2
performed a cervical disc replacement at C5-6. Up to this point, the Division paid
benefits for the treatment related to the February, 2010 neck injury.
[¶9] In February, 2011, a year after suffering the compensable neck injury and four
months after his surgery, Mr. Hartmann began experiencing dizzy spells. His primary
care physician referred him to Dr. Angelo Santiago, a neurologist and neurophysiologist.
After performing a neurological exam and testing, the results of which were normal, Dr.
Santiago concluded Mr. Hartmann might be suffering from benign paroxysmal positional
vertigo. He referred Mr. Hartmann to Kathy Blair, a doctor of physical therapy, board
certified orthopedic clinical specialist and certified vestibular therapist, for further
examination and treatment.
[¶10] Dr. Blair performed testing and determined that Mr. Hartmann did not have
paroxysmal positional vertigo. After further testing and based upon Mr. Hartmann’s
history of neck problems, Dr. Blair concluded he was suffering from cervicogenic
dizziness. Dr. Blair treated the condition with manual therapy, therapeutic exercises and
needle point triggering. The treatment significantly lessened Mr. Hartmann’s dizziness.
[¶11] In the meantime, Dr. Santiago had submitted bills to the Division for his treatment
related to Mr. Hartmann’s dizziness. The Division concluded Mr. Hartmann’s dizziness
was not related to his February, 2010, work injury and issued final determinations
denying payment of Dr. Santiago’s bills. Mr. Hartmann objected and requested a
contested case hearing. After the hearing, the OAH concluded Mr. Hartmann did not
meet his burden of proving his dizziness was related to his February 2010 work injury.
However, the OAH concluded Dr. Santiago’s testing was reasonable and necessary to
rule out any serious cause of the dizziness and benefits should be awarded for the
treatment he provided in March of 2011.
[¶12] Mr. Hartmann filed a petition for review in district court. After considering the
parties’ respective briefs and the record, the district court reversed the OAH’s decision
denying benefits for treatment for dizziness after Dr. Santiago’s March 2011
examinations. The district court concluded the OAH had failed to apply the second
compensable injury rule. The district court also noted that several of the OAH’s findings
appeared to be contrary to the overwhelming weight of the evidence. The district court
remanded the case to the OAH for reconsideration of all issues under the second
compensable injury rule. The Division appealed the district court’s order to this Court.
DISCUSSION
1. Appealable Order
[¶13] Before addressing the merits of the Division’s appeal, we must first address
whether the district court’s order is appealable. The issue of whether the district court’s
3
order is final and appealable is one of law subject to de novo review. Northwest Bldg.
Co., LLC v. Northwest Distributing Co., Inc., 2012 WY 113, ¶ 26, 285 P.3d 239, 245
(Wyo. 2012).
[¶14] Pursuant to W.R.A.P. 1.05, an appealable order is “an order affecting a substantial
right in an action, when such order, in effect, determines the action and prevents
judgment[.]” In Schwab v. JTL Group, Inc., 2013 WY 138, ¶ 13, 312 P.3d 790, 794
(Wyo. 2013), we concluded the order from which the appeal was taken was not an
appealable order. After an initial determination denying benefits, the Division issued a
redetermination awarding benefits. Id., ¶¶ 4-5, 312 P.3d at 792. The employer failed to
object and request a hearing within the time the Division allowed. Id., ¶ 7, 312 P.3d at
792. After the employer filed a late objection and hearing request, the Division referred
the case to the OAH for hearing. Id. The employee filed a motion for summary
judgment based upon the employer’s untimely objection and the OAH granted it. Id.
The employer appealed to the district court, which reversed and remanded the matter to
the OAH for a hearing to determine whether the Division waived the deadline for the
employer’s objection and equitable estoppel applied to prevent enforcing the deadline.
Id. ¶¶ 7-8, 312 P.3d at 793. Rather than pursuing the matter before the OAH, the
employee appealed to this Court. Id., ¶ 9, 312 P.3d at 793. We held the district court’s
order was not an appealable order because it did not determine the action as W.R.A.P.
1.05(a) requires; instead, the district court’s order remanded the case to the OAH for
further substantive proceedings. Id., ¶ 13, 312 P.3d at 794. In reaching that result, we
distinguished the district court’s order remanding for a contested case hearing from an
order instructing the OAH to perform the ministerial act of awarding or denying benefits.
[¶15] Like the order in Schwab, the district court’s order here remanded the matter for
further substantive proceedings, in this case reconsideration of all issues under the second
compensable injury rule. The order did not, therefore, determine the action nor was it a
ministerial act awarding or denying benefits. The district court’s order is not an
appealable order.
[¶16] In Schwab, this Court’s conclusion that the district court’s order was not an
appealable order did not end the discussion. Rather, the Court exercised its discretion to
convert the notice of appeal to a petition for writ of review under W.R.A.P. 13. The
Court concluded the single issue presented was one of law and an appeal from the district
court’s order would materially advance resolution of the litigation. Id., ¶ 14, 312 P.3d at
795. The Court similarly converted an appeal to a writ of review in Stewart Title Guar.
Co. v. Tilden, 2005 WY 53, ¶ 7, 110 P.3d 865, 870 (Wyo. 2005) because the non-final
order from which appeal was taken presented only questions of law fundamental to the
action and immediate review by this Court was in the best interest of judicial economy.
See also In re General Adjudication of Water Rights, 803 P.2d 61 (Wyo. 1990), in which
this Court treated an attempted appeal as a petition for a writ of certiorari and Kittles v.
4
Rocky Mountain Recovery, Inc., 1 P.3d 1220 (Wyo. 2000), where we treated a notice of
appeal as a petition for writ of review.
[¶17] We conclude immediate review of the district court’s order by this Court would
materially advance resolution of the case and is, therefore, in the interest of judicial
economy. We exercise our discretion to treat the notice of appeal as a petition for review
and proceed to address the issues.
2. Second Compensable Injury Rule
[¶18] The Division asserts the district court was wrong when it concluded the OAH did
not apply the second compensable injury rule in considering Mr. Hartmann’s claim. The
Division contends that although the OAH did not use the phrase “second compensable
injury”, it applied the same analysis—whether Mr. Hartmann met his burden of proving
that his dizziness was directly related to his prior work injury.2
[¶19] On appeal from a district court order on petition for review of an administrative
agency ruling, we review the case as though it came directly to this Court from the
agency and give no deference to the district court’s decision. Carson v. State ex rel. Wyo.
Workers’ Safety & Comp. Div., 2014 WY 42, ¶ 11, 322 P.3d 1261, 1264 (Wyo. 2014),
citing Taylor v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2010 WY 76, ¶ 12, 233
P.3d 583, 586 (Wyo. 2010) and Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 8, 188 P.3d
554, 557 (Wyo. 2008). Our review of an agency’s decision is governed by Wyo. Stat.
Ann. § 16-3-114(c) (LexisNexis 2013), which provides in relevant part as follows:
(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;
2
Mr. Hartmann does not address this issue but focuses his argument on the third issue—whether
substantial evidence supports the OAH determination that he failed to meet his burden of proving his
dizzy spells were related to his prior work injury.
5
Questions of law raised in an administrative context are reviewed by this Court de novo.
Voss v. Albany County Comm’rs, 2003 WY 94, ¶ 9, 74 P.3d 714, 718 (Wyo. 2003).
When an agency has not applied the correct rule of law, we correct the agency’s error.
Id.
[¶20] “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 Alvarez v. State ex rel. Wyo. Workers’ Comp. Div., 2007 WY 126, ¶ 18,
164 P.3d 548, 552 (Wyo. 2007). “Under the second compensable injury rule, a
subsequent injury or condition is compensable if it is causally related to the initial
compensable injury.” Id. 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.” Hoffman, ¶ 9, 291
P.3d at 301, quoting Davenport v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2012
WY 6, ¶ 21, 268 P.3d 1038, 1044 (Wyo. 2012). The causal connection requirement is
satisfied upon showing that it is more probable than not that the initial work injury and
the subsequent injury are related. Kaczmarek v. State ex rel. Wyo. Workers’ Safety &
Comp. Div., 2009 WY 110, ¶ 11, 215 P.3d 277, 282 (Wyo. 2009), citing Pino v. State ex
rel. Wyo. Workers’ Safety & Comp. Div., 996 P.2d 679, 685 (Wyo. 2000).
[¶21] In ruling on Mr. Hartmann’s claim, the OAH stated the issue for its determination
was whether Mr. Hartmann “can prove that his current complaints of dizziness are
directly related to his February 24, 2010 work injury.” However, the OAH cited the
following “general principles of law” applicable to its determination:
1. The claimant bears the burden of proving the essential elements of his claim by a
preponderance of the evidence, including that the claimed injury arose out of and in
the course of employment. Newman v. State ex rel. Wyo. Workers’ Safety & Comp.
Div. 2002 WY 91, ¶ 27, 49 P.3d 163, 174 (Wyo. 2002).
2. The claimant must prove, by a preponderance of the evidence, the injury arose out of
the employment and was suffered in the course of employment while at work on the
employer’s premises.
3. A causal connection must exist between the injury and the employment.
4. A causal connection exists when there is a nexus between the injury and some
condition, activity, environment or requirement of the employment. Haagensen v.
State ex rel. Wyo. Workers’ Safety & Comp. Div., 949 P.2d 865, 867 (Wyo. 1997).
6
5. “‘Injury’ means any harmful change in the human organism other than normal aging
… arising out of and in the course of employment while at work in or about the
premises occupied, used or controlled by the employer and incurred while at work in
places where the employer’s business requires an employee’s presence and which
subjects the employee to extrahazardous duties incident to the business. ‘Injury’
does not include:
....
(F) Any injury or condition preexisting at the time of employment with the
employer against whom a claim is made;
(G) Any injury resulting primarily from the natural aging process or from the
normal activities of day-to-day living, as established by medical evidence supported
by objective findings[.]” Wyo. Stat. Ann. § 27-14-102(a)(xi)(F) and (G).
[¶22] From the general legal principles cited, we cannot conclude the OAH applied the
second compensable injury rule. Nor are we able to conclude that although it did not
reference the rule, the OAH nevertheless applied the analysis required under the rule.
While the OAH ruling correctly states that Mr. Hartmann had the burden of proving all
the essential elements of his claim by a preponderance of the evidence, he did not under
the second compensable injury rule have to prove that the dizziness for which he was
seeking benefits “arose out of and in the course of his employment” as stated in
subparagraph 1 of the ruling. Rather, he had to prove that the dizziness was more
probably than not related to his earlier compensable neck injury.
[¶23] Mr. Hartmann also did not have to prove that the dizziness “was suffered in the
course of employment while at work on the employer’s premises” as stated in
subparagraph 2 of the agency ruling. Additionally, rather than proving a causal
connection between the dizziness and his employment as stated in subparagraph 3, Mr.
Hartmann had to prove a causal connection, or nexus, between the dizziness and his
earlier compensable neck injury. He was not required to prove a nexus between the
dizziness and “some condition, activity, environment or requirement of the employment.”
Finally, the definition of “injury” found in § 27-14-102(a)(xi), requiring as it does that the
injury occur “while at work” applies to an initial work injury, not to a second
compensable injury. Wyoming law is clear that a second compensable injury need not
occur at work. Pino, 996 P.2d 679 (earlier compensable work injury was direct cause of
ruptured disc that occurred at home nearly two years later); Carabajal v. Wyo. Workers’
Safety & Comp. Div., 2005 WY 119, ¶¶ 4, 14, 119 P.3d 947, 948, 952 (Wyo. 2005),
(claimant was entitled to opportunity to prove 1977 compensable work injury was direct
cause of second compensable injury rule sustained in 2002 when he was not at work);
Hoffman, ¶ 17, 291 P.3d at 303, (claimant satisfied his burden of proving a causal
connection between his 1994 work injury and the injury he sustained in a slip and fall at
home fifteen years later).
7
[¶24] As we have said, the OAH “has an obligation to invoke and apply the rules of law
that support a claimant’s theory of the case.” Pino, 996 P.2d at 687. The OAH in Mr.
Hartmann’s case should have invoked and applied the second compensable injury rule as
this Court has defined it. From the general legal principles cited in its ruling, we are
unable to conclude that the OAH invoked the applicable rule or that the decision is “in
accordance with law.”
[¶25] In previous cases in which we have concluded the OAH failed to invoke and apply
the applicable law, we have sometimes remanded the case to the OAH for reconsideration
in light of the applicable law. Carabajal, ¶ 24, 119 P.3d at 955; Yenne-Tully v. Wyo.
Workers’ Safety & Comp. Div., 12 P.3d 170, 173 (Wyo. 2000) (Yenne-Tully I). In other
cases, after determining the OAH applied the wrong standard or rule, we have considered
whether, when the proper standard or rule is applied, the evidence in the record supports
the claim for benefits. Pino, 996 P.2d at 687; Hoffman, ¶ 13, 291 P.3d at 302. Having
considered the record in Mr. Hartmann’s case, we conclude as explained fully in the
following section that the medical testimony sufficiently tied his dizziness to the earlier
compensable injury. We, therefore, decline to remand the case to the OAH for
reconsideration in light of the second compensable injury rule.
3. Substantial Evidence
[¶26] Pursuant to § 16-3-114(c), we review an agency’s findings of fact to determine
whether they are supported by substantial evidence. Johnson v. State ex rel. Wyo.
Workers’ Safety & Comp. Div., 2014 WY 33, ¶¶ 12-13, 321 P.3d 318, 321-22 (Wyo.
2014), citing Dale, ¶ 22, 188 P.3d at 561. Substantial evidence means “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.,
citing Bush v. State ex rel. Wyo. Workers’ Comp. Div., 2005 WY 120, ¶ 5, 120 P.3d 176,
179 (Wyo. 2005). Findings of fact are supported by substantial evidence if, from the
evidence preserved in the record, we can discern a rational premise for the findings. Id.
When an agency concludes a claimant failed to satisfy his burden of proof, we:
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. If, in the course of its decision making
process, the agency disregards certain evidence and explains
its reasons for doing so based upon determinations of
credibility or other factors contained in the record, its
decision will be sustainable under the substantial evidence
test. Importantly, our review of any particular decision turns
not on whether we agree with the outcome, but on whether
8
the agency could reasonably conclude as it did based on all
the evidence before it.
Johnson, ¶ 13, 321 P.3d at 322, quoting Dale, ¶ 22, 188 P.3d at 561.
[¶27] In support of his claim that his dizziness was related to his February, 2010, work
injury, Mr. Hartmann offered the testimony of Dr. Blair. She testified that from her
initial evaluation she arrived at a working diagnosis that Mr. Hartmann’s cervical region
was the source of his symptoms. Subsequently, she diagnosed him with cervicogenic
dizziness. According to Dr. Blair’s testimony, there are a variety of causes of
cervicogenic dizziness, including vascular issues, arthritis or any trauma to the cervical
spine, but a patient cannot have cervicogenic dizziness unless there is some problem with
the cervical spine. She testified that Mr. Hartmann came to her with symptoms of
cervicogenic dizziness following a neck injury and surgery for that injury, she treated him
for cervicogenic dizziness and his symptoms resolved. She also testified that her
treatment of Mr. Hartmann was more likely than not related to his 2010 neck injury.
[¶28] Mr. Hartmann also presented the deposition testimony of Dr. Santiago. Like Dr.
Blair, Dr. Santiago testified that cervicogenic dizziness usually follows a neck or upper
cervical spine injury. He testified there are two hypotheses as to the cause, compression
of the blood vessel when the neck is turned or diminished sensation of the joints and
nerves from the neck to the brain. In either case, he said, cervicogenic dizziness usually
follows a neck injury. Although Dr. Santiago did not diagnose Mr. Hartmann as having
cervicogenic dizziness, he testified that Dr. Blair “is probably the best physical therap[ist]
that I know of, especially for this kind of problem, and I always take into consideration
her . . . skills and . . . her diagnostic ability.” He testified further that he valued Dr.
Blair’s input and would go with her recommendations as to what Mr. Hartmann needed.
Addressing the other possible causes of Mr. Hartmann’s dizziness, Dr. Santiago testified
that he obtained MRIs of Mr. Hartmann’s brain and internal auditory canals and
performed a neurological examination and, on the basis of the results of those tests, he
ruled out a stroke, abnormal blood vessels, a brain tumor, arthritis and other potential
causes of the dizziness.
[¶29] Mr. Hartmann also presented the deposition testimony of Dr. Pettine. He testified
that he is not an expert on dizziness and could only speculate as to what caused Mr.
Hartmann’s dizziness. He also testified that while it might be possible for dizziness to be
a by-product of the surgery he performed on Mr. Hartmann, he did not recall any other
patient having dizziness after the surgery.
[¶30] From the above testimony, Mr. Hartmann established that his symptoms were
consistent with cervicogenic dizziness; cervicogenic dizziness usually follows a neck
injury; cervicogenic dizziness does not occur absent cervical problems; other potential
causes for the dizziness were ruled out; dizziness is not a usual by-product of cervical
9
disk surgery; and, the treatment Mr. Hartmann received for his dizziness was more likely
than not related to his February, 2010, compensable work injury. Our task is to
determine whether there is substantial evidence to support the OAH’s decision to reject
this evidence. In making that determination, we consider whether the OAH’s decision
was contrary to the overwhelming weight of the evidence in the record as a whole.
[¶31] The OAH’s determination that Mr. Hartmann did not meet his burden of proof
appears to have been based in part on a lack of confidence in Dr. Blair’s qualifications
and opinions. This Court will defer to a fact finder’s credibility determinations, but only
where those determinations are supported by a rational premise. McMasters v. State of
Wyo. ex rel. Wyo. Workers’ Safety & Comp. Div., 2012 WY 32, ¶ 71, 271 P.3d 422, 439
(Wyo. 2012), citing Moss v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2010 WY
66, ¶ 30, 232 P.3d 1, 9 (Wyo. 2010). In the present case, the OAH noted twice in its
ruling that “most” or “much” of the work Dr. Blair did to obtain her doctorate degree was
on-line and she wrote only “some” of the papers on campus.
[¶32] In her deposition, Dr. Blair testified about her qualifications as follows:
Q. And how long have you been a physical
therapist?
A. 20 years.
Q. And where did you do your undergraduate
work?
A. Ithaca College.
Q. In New York?
A. Yes.
Q. . . . And . . . did you do any education after your
undergraduate degree?
A. Yes, in 2009 I got a doctoral degree.
Q. You say you’re a doctor of physical therapy?
A. Yes.
Q. What does that mean? . . .
A. It’s just a higher level of education. It’s a
clinical degree, more hours, more training, more education.
Q. Okay. So should I refer to you as doctor?
A. You could. You don’t need to.
Q. All right. Do you have any specialties?
A. . . . I specialize in vestibular treatment for
dizziness.
....
Q. Could you explain what exactly you mean by
that?
10
A. Well, I’ve taken numerous advance trainings in
understanding, helping diagnose and treat a variety of
vestibular disorders.
[¶33] At the hearing, Dr. Blair testified on direct exam:
Q. Do you have any specialties in physical
therapy?
A. I’m a board certified orthopedic clinical
specialist. . . . I’m a certified vestibular therapist.
....
Q. Dr. Blair, you have a doctorate in physical
therapy?
A. Yes.
Q. Could you explain to the court what exactly that
means?
A. It’s a clinical degree, so it’s advanced training.
I originally graduated with a bachelor’s of science, and then I
went on further education to get the doctorate. It’s a separate
pathway from a PH.D. pathway, again, staying more clinical
versus educational.
HEARING EXAMINER . . .: Where did you get that
degree?
A. Regis University in Denver.
[¶34] At the close of her testimony the following exchange occurred:
HEARING EXAMINER . . .: All right. Thank you,
Dr. Blair. I’m curious how long did it take you to get that
doctorate degree?
DR. BLAIR: I did it part time while running my clinic,
so it took about two and a half years.
HEARING EXAMINER …: Normally it would take
less than that?
DR. BLAIR: It depends on how many credit hours.
Since I already had my PT degree, I didn’t have [to] go back to
a campus situation full time, so I was able to just take as many
credit hours per semester as I felt I could handle.
HEARING EXAMINER . . .: Did you do a lot of it
online?
DR. BLAIR: Online. Depending on the course we had
to be down at Regis for intensive – lots of papers, lots of
research.
11
[¶35] The above excerpts are the full extent of the evidence concerning Dr. Blair’s
education and certifications. No evidence was presented to show that her work to obtain
her doctorate, or the degree itself, were suspect. No evidence was presented to show that
her treatment of Mr. Hartmann or her opinions were subject to doubt. To the contrary,
the evidence showed only that Dr. Santiago considered her to be probably the best
physical therapist he knows, especially for symptoms like Mr. Hartmann was having, that
he always takes her skills and diagnostic ability into account and that he valued her input
and would go with her recommendations. Applying the proper standard of review, we can
find no rational basis for the OAH discounting Dr. Blair’s testimony based upon its
suspicions regarding her credentials.
[¶36] The OAH also noted in its ruling that Dr. Blair’s records contained a patient
discharge note which identified Mr. Hartmann as the patient but obviously described the
complaints of a different patient and she failed to correct the record before providing it.
The OAH stated “[t]his situation had a negative effect on the confidence this Hearing
Examiner can place on Dr. Blair’s medical records.” Dr. Blair was not questioned about
the discharge note or given a chance to explain it. It is not clear that she even knew about
it. We conclude that particular record does not provide a rational basis for entirely
discounting her opinions.
[¶37] The OAH also discounted Dr. Blair’s testimony because Dr. Pettine’s office note
stated the etiology of Mr. Hartmann’s dizziness was unknown. In his deposition,
however, Dr. Pettine testified that he is not an expert in dizziness and any opinion from
him concerning the cause of Mr. Hartmann’s dizziness would be speculative. In light of
this testimony, his office note carries little, if any, weight and cannot be considered
substantial evidence necessary to support the OAH decision.
[¶38] The OAH also relied on testimony by Dr. Santiago to the effect that the diagnosis
of cervicogenic dizziness is controversial, Mr. Hartmann did not have symptoms that are
definitely associated with cervicogenic dizziness, and people with cervicogenic dizziness
can also have positional vertigo, which Dr. Blair concluded Mr. Hartmann did not have.
Dr. Santiago was asked on cross-examination whether his testimony on direct that the
diagnosis of cervicogenic dizziness was controversial meant that it is not a generally
accepted diagnosis. He testified to the contrary that there are some symptoms that are
definitely cervicogenic such as facial numbness, double vision or difficulty swallowing
on neck turning. He testified that Mr. Hartmann did not have any of those symptoms and
his presumptive diagnosis, therefore, was that Mr. Hartmann had positional vertigo.
However, that testimony was substantially weakened by his testimony that Dr. Blair is
probably the best physical therapist he knows, she sees far more patients for dizziness
than he does and he would go with her recommendations. Similarly, Dr. Santiago’s
testimony that people with cervicogenic dizziness can also have positional vertigo did not
undermine Dr. Blair’s testimony that Mr. Hartmann did not have positional vertigo. The
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evidence was that positional vertigo can be a symptom of cervicogenic dizziness not that
it is always a symptom.
[¶39] The OAH also stated as a basis for its ruling that Dr. Santiago continued to
diagnose Mr. Hartmann with positional vertigo even after being informed of Dr. Blair’s
diagnosis. However, Dr. Santiago saw Mr. Hartmann only twice in March, 2011. He
emphasized that his diagnosis of positional vertigo at that time was “presumptive,”
meaning “probable” rather than final or conclusive. He testified that at the time of the
second visit, his diagnosis remained positional vertigo. He was not aware until his
deposition was taken sixteen months later that Dr. Blair has diagnosed Mr. Hartmann
with cervicogenic dizziness. After being informed of that diagnosis, he was not asked
and did not testify whether he still believed Mr. Hartmann was suffering from positional
vertigo. He did testify, however, that he does not see cervicogenic dizziness as
commonly as Dr. Blair probably does, she sees more patients with dizziness than he does,
she is probably the best physical therapist he knows and he would go with her
recommendation. This testimony suggests that Dr. Santiago would have deferred to her
diagnosis. In any event, Dr. Santiago was not asked whether he continued to believe Mr.
Hartmann had positional vertigo after being informed of Dr. Blair’s diagnosis.
[¶40] The OAH concluded the medical opinions were in conflict because, while Dr. Blair
testified that her treatment was related to the work injury, both Dr. Pettine and Dr.
Santiago testified that they could only speculate about whether Mr. Hartmann’s dizziness
was related to the work injury. The OAH gave greater weight to Dr. Pettine’s testimony
despite his admission that he is not an expert in dizziness, did not treat Mr. Hartmann for
dizziness and was not qualified to express an opinion concerning the cause of the
dizziness. The OAH gave greater weight to Dr. Santiago’s testimony despite the fact that
after ruling out other more serious causes for the dizziness, he referred Mr. Hartmann to
Dr. Blair for further evaluation and treatment because she was probably the best physical
therapist he knew, particularly for treating this condition. The record simply does not
support giving greater weight to the testimony of Dr. Pettine or Dr. Santiago than to Dr.
Blair’s testimony.
[¶41] In its ruling, the OAH stated that Mr. Hartmann appeared impatient and had
difficulty containing his anger at times, walked into the hearing room without any
apparent difficulty, showed no signs of problems with his neck or shoulder movements,
did not appear to be in pain and gave testimony not supported by the medical records
when he said Dr. Jenkins had told him there was nothing wrong with him. We have said
before that a claimant’s appearance of anger is of little significance in workers’
compensation determinations. Moss, ¶ 31, 232 P.3d at 9. Additionally, given that Mr.
Hartmann made no claim that his dizziness was continuing at the time of the hearing, the
OAH’s observations about his appearance have no significance. The observation that he
did not appear to be in pain is particularly insignificant since Mr. Hartmann never
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complained of having pain. By itself, Mr. Hartmann’s testimony that Dr. Jenkins told
him there was nothing wrong with him is not sufficient to discredit his testimony entirely.
[¶42] Finally, the OAH made two observations in its ruling that do not support the
outcome. First, it said that Mr. Hartmann’s symptoms recur, indicating that Dr. Blair’s
treatment may not be resolving his dizziness. The undisputed evidence presented at the
hearing showed that Dr. Blair’s treatment significantly reduced Mr. Hartmann’s
symptoms, making it possible for him to walk, drive and function, which he was unable
to do before seeing Dr. Blair. Second, commenting on a note from April, 2012, in which
Dr. Blair stated that Mr. Hartmann displayed neurological signs, including feeling like his
ankles might buckle, tremors, numbness in his hands and dizziness, the OAH speculated
that something more serious was wrong with him. This suggestion is pure speculation
unsupported by any medical opinion and is not a rational basis for denying benefits.
[¶43] Mr. Hartmann met his burden of proving his dizziness was more probably than not
related to his February, 2010, work injury under the second compensable injury rule. The
OAH’s ruling to the contrary is against the overwhelming evidence in the record as a
whole.
[¶44] We reverse the district court’s order remanding to the OAH for reconsideration and
remand to the district court for entry of an order remanding to the OAH for entry of an
order awarding benefits.
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