In the Matter of the Worker's Compensation Claim of Don Birch v. State of Wyoming ex rel. Wyoming Workers' Safety and Compensation Division

IN THE SUPREME COURT, STATE OF WYOMING
2014 WY 31
OCTOBER TERM, A.D. 2013
February 27, 2014
IN THE MATTER OF THE
WORKER’S COMPENSATION
CLAIM OF:
DON BIRCH,
Appellant
(Petitioner),
S-13-0132
v.
STATE OF WYOMING ex rel.
WYOMING WORKERS’ SAFETY
AND COMPENSATION DIVISION,
Appellee
(Respondent).
Appeal from the District Court of Sweetwater County
The Honorable Nena James, Judge
Representing Appellant:
F. Gaston Gosar of F. Gaston Gosar, P.C., Pinedale, Wyoming
Representing Appellee:
Peter K. Michael, Wyoming Attorney General; John D. Rossetti, Deputy Attorney
General; Michael J. Finn, Senior Assistant Attorney General; Samantha Caselli,
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.
DAVIS, Justice.
[¶1] Appellant Don Birch sought reimbursement for travel expenses related to
chiropractic treatment he received at the Utah Spine and Disc Clinic in Murray, Utah
from the Wyoming Division of Workers’ Compensation (Division). Mr. Birch lived in
Daniel, Wyoming. The Division denied his request for reimbursement because
traditional types of chiropractic care, manipulation and traction could have been obtained
at a location in Wyoming closer to his home, and because cold laser therapy was
considered experimental and was therefore not a covered treatment for which the
Division would pay travel expenses. We affirm.
ISSUES
[¶2] We will attempt to clarify the three issues Mr. Birch presents by restating them as
follows:
1. Are the hearing examiner’s findings sufficient to support
his determinations (a) that travel expenses relating to cold
laser therapy should not be reimbursed because that therapy is
experimental and not compensable, and (b) that no travel
expenses relating to any of the treatment received in Utah
should be reimbursed because comparable conventional
chiropractic treatment could have been obtained in Wyoming
closer to Mr. Birch’s home?
2. Does substantial evidence support those findings?
3. As a matter of law, should the hearing examiner have
awarded travel expenses relating to manual chiropractic
manipulation and mechanical traction as if those services
were provided in Rock Springs rather than Utah?
FACTS
[¶3] The uncontested background of Mr. Birch’s case is succinctly set out in the
hearing examiner’s “Findings of Fact, Conclusions of Law, and Order”:
Birch was originally injured in 1975 while working for
FMC. Birch’s injuries resulted in the amputation of his right
1
leg, below the knee.[1] The Division opened a case and over
the ensuing years paid a number of benefits. In the 1990s,
B[i]rch began experiencing low back pain which was
determined [to] have resulted from the altered gait from years
of wearing a prosthetic leg. In 2009, Birch sought
preapproval for a spinal fusion of his lumbar spine; initially
the Division denied the preauthorization but later withdrew its
protest. Ultimately, Birch elected not to proceed with the
spinal fusion and began to research alternative treatment
options. Birch’s research led him to the Utah Spine and Disc
Clinic (Utah Spine and Disc) in Murray, Utah where he
sought chiropractic treatment, including cold laser therapy.
Birch sought reimbursement for travel to and from Utah
Spine and Disc and on March 11, 2011, the Division issued a
Final Determination denying reimbursement for travel
because there are medical providers closer to Birch’s home
and because the Division considers cold laser therapy to be
non-covered experimental or investigational treatment.[2]
Mr. Birch also received more common forms of chiropractic treatment, including
adjustment and traction, in Utah.
[¶4] Mr. Birch testified at the ensuing telephonic administrative hearing, and he
submitted over two hundred pages of documents, including the deposition of Dr. Brett
Luddington, the chiropractor who supervised his treatment at the Utah clinic. Among
other documents which will be addressed in more detail below were promotional
materials generated by the treatment provider and the manufacturer of the device used on
Birch, both of which not surprisingly extolled the treatment benefits of Class IV cold
lasers. He also submitted articles that addressed chiropractors’ increased use of
therapeutic cold lasers and reports of studies on their efficacy.
[¶5] Birch attempted to establish the following in the OAH hearing: 1) that therapeutic
lasers produce beneficial effects by directing light in the infrared range through the body
to targeted tissues, thereby stimulating light sensitive cellular chemicals to initiate a
series of salutary chemical reactions; 2) that Class IV therapeutic lasers like that used to
treat him in Utah are superior to Class III therapeutic lasers because the higher energy
1
Birch testified that the leg was amputated above the knee, but other record evidence indicates the
amputation was a modified knee disarticulation, that the upper and lower portions of his leg were
separated at the knee joint.
2
Birch took out a substantial loan from a financing organization affiliated with the Murray clinic to pay
for the treatment he received. He did not seek preapproval of the treatment from the Division, and the
record contains no application for reimbursement for the chiropractic or laser therapy itself.
2
output of the former allows deeper penetration and less scattering of the laser beam, and
shortens treatment times; 3) that studies have shown a variety of benefits from
therapeutic laser treatment; and 4) that the Class IV laser with which Birch was treated
was approved by the United States Food and Drug Administration (FDA).
[¶6] Dr. Luddington’s deposition testimony concerning laser therapy generally parroted
his employer’s and the manufacturer’s promotional material, with few references to the
details of the scientific studies he claimed found it to be effective. The manufacturer’s
claims and Dr. Luddington’s testimony were at odds with other exhibits that Birch
submitted, however. For example, both asserted that therapeutic lasers reduce pain by
using the light itself to induce a series of chemical reactions in the cells of targeted
tissues, not by generating heat in the tissue with the laser. On the other hand, Birch’s
Exhibit 10 characterized that theory as hypothetical and in need of further experimental
studies to demonstrate its efficacy.3 Furthermore, Exhibit 14, a letter from the FDA to
the manufacturer of the laser used on Birch, approved marketing of the device as the
substantial equivalent of an infrared heat lamp.4
[¶7] The remaining scientific articles submitted by Birch also did little to advance his
cause. Exhibit 7, for instance, noted that the medical research community remains
skeptical and unable to reach firm conclusions about the “mechanism of action and
effectiveness” of therapeutic lasers due to insufficient data or conflicting findings. It then
recounted the authors’ statistical analysis of sixteen clinical studies involving a total of
820 patients who were treated with Class III lasers and placebo “lasers” for non-specific
neck pain of unknown etiology. In some cases, that treatment was supplemented by
exercise therapy and analgesic drugs. The study concluded there was only moderate
statistical evidence for the short and medium term effectiveness of laser treatment for
neck pain, and conceded that the mechanism by which a laser may reduce pain remains
unknown.
[¶8] Exhibit 8 summarized a small study in which twenty-one patients with lower back
pain were treated with chiropractic manipulation and exercise therapy, and twenty-four
patients with similar complaints received Class IV laser therapy in addition to
manipulation and exercise. The second group self-reported greater pain reduction than
3
The studies discussed in this scholarly paper related to the use of lasers, having an output consistent with
Class III lasers, to enhance the natural regeneration of injured facial nerves in rats and in vitro laser
radiation of nerve cells. Due to those limitations, the paper did not deal at all with the effect of lasers on
tissues more than a superficial distance below the skin.
4
Birch advanced the notion that, for the reasons stated by the manufacturer, his Class IV laser therapy in
Utah was distinctly more beneficial than the Class III laser therapy he could have obtained in Rock
Springs, due to the proven enhanced ability of the former to induce photo-chemical reactions in deep
tissue. However, he also took the position that Class IV lasers were not experimental simply because that
mechanism of pain relief was proven and well established, but also, contrary to the manufacturer’s claims,
that all therapeutic lasers provide the same mechanism as conventional infrared heat lamps.
3
the first, but no placebo laser control was used in the study, and it did not attempt to
isolate the effect of laser therapy when used with other treatment modalities.
Consequently, the author conceded that further study was required to validate his
provisional findings.
[¶9] The Division relied primarily on the deposition testimony of Dr. Daniel Staight.
Dr. Staight is a chiropractor with some specialized chiropractic training in orthopedics.
He served on the Division’s chiropractic review panel for nine years, and he also chaired
a number of committees of the American Chiropractic Association. He concluded, as had
the review panel, that the use of therapeutic lasers was an experimental or investigatory
procedure which should not be compensable under Wyoming’s workers’ compensation
statutes or the Division’s rules. He observed that laser treatment is also regarded as
experimental by Medicare, Utah’s workers’ compensation program, Cigna, Aetna, and
Blue Cross/Blue Shield of Utah.
[¶10] Dr. Staight further testified that two well-regarded independent physician groups
had assessed the technology and various studies related to therapeutic Class III and IV
lasers, and both concluded that the evidence to demonstrate the benefits or effectiveness
of those devices was insufficient. These groups pointed out the need for
methodologically rigorous clinical trials to compare the efficacy of laser therapy to other
modes of treatment, and to ascertain the effectiveness of various wavelengths and
dosages of laser light. Dr. Staight then detailed his criticisms of the studies Birch relied
upon, and concluded that the “jury is still out” on laser therapy due to the “mixed bag of
evidence” revealed by independent peer review of existing studies and literature.
[¶11] The hearing examiner ultimately found the Division’s evidence more persuasive
and upheld its determination to deny Birch reimbursement for his travel expenses for his
Utah treatment because he could have obtained comparable chiropractic treatment in
Wyoming, and because chiropractic use of cold lasers is experimental and investigatory.
The district court affirmed.
STANDARD OF REVIEW
[¶12] In an appeal from a district court’s review of an
administrative decision, this Court reviews the case as if it
had come 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). In accordance with Wyo. Stat.
Ann. § 16-3-114(c)(ii)(E) (LexisNexis 2013), we review an
agency’s findings of fact by applying the substantial evidence
4
standard. Jacobs v. State ex rel. Wyo. Workers’ Safety &
Comp. Div., 2013 WY 62, ¶ 8, 301 P.3d 137, 141 (Wyo.
2013); Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 22, 188
P.3d 554, 561 (Wyo. 2008). Substantial evidence is relevant
evidence that a reasonable mind might accept as adequate to
support a conclusion. Jacobs, ¶ 8, 301 P.3d at 141; Bush v.
State ex rel. 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 those findings.”
Kenyon v. State ex rel. Wyo. Workers’ Safety & Comp. Div.,
2011 WY 14, ¶ 11, 247 P.3d 845, 849 (Wyo. 2011).
Where a hearing examiner determines that a claimant
has failed to carry her burden of proof, this Court must decide
whether that determination was contrary to the overwhelming
weight of the evidence. Jacobs, ¶ 8, 301 P.3d at 141; Hoffman
v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2012 WY
164, ¶ 7, 291 P.3d 297, 301 (Wyo. 2012). We defer to the
agency’s (or the hearing examiner’s) determination of witness
credibility unless it is clearly contrary to the overwhelming
weight of the evidence. Willey v. State ex rel. Wyoming
Workers’ Safety & Comp. Div., 2012 WY 144, ¶ 20, 288 P.3d
418, 427 (Wyo. 2012) (quoting Beall v. Sky Blue Enters.,
2012 WY 38, ¶ 28, 271 P.3d 1022, 1034 (Wyo. 2012)).
We apply the arbitrary and capricious standard of
review as a “safety net” to catch agency action which
prejudices a party’s substantial rights or is contrary to other
standards of review under Wyoming’s Administrative
Procedures Act, but which is not easily categorized or subject
to a particular standard. Jacobs, ¶ 9, 301 P.3d at 141. “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, and will affirm only if the agency’s
conclusions are in accordance with the law.” Kenyon, ¶ 13,
247 P.3d at 849.
Leavitt v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2013 WY 95, ¶¶ 17-19, 307
P.3d 835, 840 (Wyo. 2013).
5
DISCUSSION
Legal Standards – Findings of Fact and Substantial Evidence
[¶13] Mr. Birch challenges the hearing examiner’s determinations that cold laser therapy
is experimental and that treatment comparable to that which he received in Utah was
available in Wyoming closer to his home in Daniel. He asserts those determinations were
not supported by sufficient factual findings or substantial evidence. As we recently held:
We have never held that a hearing examiner’s decision
must contain findings specifying a decision as to every fact in
dispute. We have only required that such an order contain the
basic findings of fact upon which the hearing examiner based
his ultimate conclusions relating to “material issues in the
proceeding.” [Exxon Mobil Corp. v. Wyo. Oil & Gas
Conservation Comm’n, 2013 WY 32], ¶ 26, 297 P.3d [782,]
788 [(Wyo. 2013)]. The findings must be sufficient to permit
us to determine whether the agency decision was supported
by substantial evidence and was otherwise reasonable. Id., ¶
26, 297 P.3d at 788-89.
Leavitt, ¶ 29, 307 P.3d at 842.
[¶14] With respect to whether substantial evidence supports those findings, we have
observed that
[w]e review to determine whether the record as a whole
contains relevant evidence that a reasonable mind might
accept as adequate to rationally support the hearing
examiner’s conclusion. Jacobs, ¶ 8, 301 P.3d at 141; Kenyon,
¶ 11, 247 P.3d at 849. Stated another way, this Court must be
able to conclude that the agency decision was not contrary to
the overwhelming weight of the record evidence as a whole.
Jacobs, ¶ 8, 301 P.3d at 141; Hoffman, ¶ 7, 291 P.3d at 301.
We need not determine that each and every finding of fact
had a reasonable evidentiary basis, but only that those
necessary to support the decision were so supported.
Leavitt, ¶ 32, 307 P.3d at 842. Moreover,
[a] hearing examiner is not bound to accept and may
disregard testimony[ – even that] which is not contradicted by
an opposing expert[ – ] if the circumstances of a case render it
6
less than credible, or if that testimony is evasive, equivocal,
confused, “clouded with uncertainty and improbability, or
otherwise . . . unreliable or unworthy of belief.” David v.
State ex rel. Wyo. Workers’ Safety & Comp. Div., 2007 WY
22, ¶ 15, 151 P.3d 280, 290 (Wyo. 2007). In addition, a
hearing examiner may disregard a medical expert’s opinion if
it is unreasonable, inadequately supported by the facts upon
which it purportedly rests, or based upon an incomplete or
inaccurate medical history. Middlemass v. State ex rel. Wyo.
Workers’ Safety & Comp. Div., 2011 WY 118, ¶ 29, 259 P.3d
1161, 1168 (Wyo. 2011).
Leavitt, ¶ 21, 307 P.3d at 841.
Closer Available Treatment
[¶15] The Division has limited statutory authority to reimburse claimants for travel
expenses related to medical care. The pertinent provisions of Wyo. Stat. Ann. § 27-14-
401(d) provide:
(d) Medical and hospital care[5] shall be obtained if possible
within Wyoming, or in an adjoining state if the . . . health care
provider in the adjoining state is closer to . . . the usual place
of employment of the employee than a . . . health care
provider in Wyoming, unless otherwise authorized by the
division. Except as otherwise authorized by the division,
reimbursements for travel in obtaining medical and hospital
care shall not be paid:
. . .
(ii) For travel other than that necessary to obtain the
closest available medical or hospital care needed by the
employee except in those instances where travel within
Wyoming is at a greater distance than travel outside of
Wyoming[.]
Wyo. Stat. Ann. § 27-14-401(d) (LexisNexis 2013). This statute is one of the bases upon
which the Division denied Mr. Birch’s request for reimbursement of his travel expenses
to the Utah Spine and Disc Clinic. The nature of Mr. Birch’s claim draws us into a
discussion of the nature of laser therapy. As explained below, it may be a unique form of
5
“Medical and hospital care” is broadly defined by statute. However, the term applies only to services
that are both reasonable and necessary, and it excludes experimental procedures. Wyo. Stat. Ann. § 27-
14-102(a)(xii) (LexisNexis 2013). Consequently, no statutory authorization exists for the Division to
reimburse a claimant for travel expenses incurred to receive an experimental form of treatment.
7
therapy, or it may be nothing more than a method of heating tissue to relieve pain.
Accordingly, we must turn to the hearing examiner’s findings of fact to determine
whether they were adequate to support the conclusion that Birch could have obtained
similar chiropractic care in Rock Springs, which was closer to his home, and whether
those findings were supported by substantial evidence.
[¶16] The hearing examiner found based upon Birch’s testimony that some degree of
standard chiropractic care could have been obtained in Pinedale, Jackson, Rock Springs,
Green River, and Evanston, and that he could have received Class III laser therapy in
Rock Springs. All of these cities are closer to Birch’s home in Daniel than Murray, Utah.
Birch provided this information to the hearing examiner through his Exhibit 5, a letter
from a Rock Springs chiropractic clinic. The hearing examiner held that Birch had not
carried his burden of persuading him that Class IV lasers are so different from Class III
lasers that Birch could not have received laser therapy in Rock Springs that was
substantially equivalent to what he received at Utah Spine and Disc Clinic, presumably
assuming that such treatment might not be experimental.
[¶17] Birch’s testimony and his Exhibit 5 can reasonably be viewed as conceding that
standard forms of chiropractic care could be obtained in western Wyoming, particularly
in Jackson and Rock Springs, and that Class III laser therapy was available at a
chiropractic clinic in Rock Springs. He never disputed the Division’s contention that
manual chiropractic manipulation or mechanical traction, which he received in Utah
along with laser therapy, was available at those Wyoming facilities. The record as a
whole therefore reasonably supports the hearing examiner’s conclusion that standard
modes of chiropractic care were available in Wyoming in cities closer to Daniel than
Murray, Utah.
[¶18] As we noted above, the exhibits Birch submitted drew little distinction between
the relative efficacy of Class III and Class IV lasers. Only the manufacturer of the laser
used on Birch claimed that the light beam of the latter penetrated more deeply than that of
the former, but that distinction rested on what appears to be a largely untested hypothesis
that therapeutic lasers of all classes create a photo-chemical reaction in tissue. Because
that effect remains unproven and hypothetical, the therapeutic value of both classes of
lasers is equally experimental at this point. As we also observed above, both Class III
and Class IV lasers can also can be viewed as topically heating the body’s surface, in turn
conducting that heat to underlying tissue, which is what commonly available infrared
heat lamps do. There is nothing in the record to suggest that Class IV lasers are more
effective than heat lamps.
[¶19] We conclude that the findings are sufficient to permit us to evaluate whether
relevant evidence reasonably supports them. We also conclude that the hearing
examiner’s decision with respect to this issue is not contrary to the overwhelming weight
of the evidence as a whole. We therefore agree that Birch did not carry his burden to
8
demonstrate that he could not have received laser therapy that was substantially
equivalent to what he received at Utah Spine and Disc Clinic in Rock Springs. 6
The Experimental Nature of Therapeutic Lasers
[¶20] As noted above in footnote 5, the Division is statutorily prohibited from paying for
experimental medical procedures and, by extension, from reimbursing travel expenses
incurred to obtain experimental treatment. § 27-14-102(a)(xii). However, the statute
does not define the term “experimental.” The Division’s rules more explicitly define the
term as follows:
Experimental care is defined as any device, drug, procedure
or test used in the delivery of medical, pharmaceutical,
surgical or therapeutic services that are not customary and
considered investigational, unusual, controversial and/or
obsolete. The Division will neither authorize nor pay for
these services.
Wyo. Dep’t of Workforce Services, Rules, Regulations & Fee Schedules, Workers’
Comp. Div., ch. 10, § 10. In Tarraferro v, State ex rel. Wyoming Medical Commission,
2005 WY 155, 123 P.3d 912 (Wyo. 2005), this Court also attempted to provide some
context for understanding the term by quoting from 1A Lawyers’ Medical Cyclopedia of
Personal Injuries and Allied Specialties § 2.53 (2001):7
To understand this area of law, it is important to
distinguish between concepts that are frequently commingled
and confused. Unfortunately, there is no universally accepted
terminology, so that it is often difficult to know what any one
author means when using the words “experimentation,”
“research,” and “novel technique.” For the sake of clarity and
understanding, these terms will have the following definitions
in this discussion unless stated otherwise.
Experimentation is the use of a medicine or procedure,
which is yet to be adequately tested for the purpose for which
6
We are not entirely sure that it was necessary for OAH, the district court, or this Court to determine
whether Class III laser treatment was shown to be different in some respect from the Class IV therapy Mr.
Birch received, because we determine below that laser therapy in general is experimental. However, we
acknowledge that the possible similarity of laser therapy to heat lamp treatment may have required that
issue to be addressed due to the availability of the latter service in Wyoming.
7
This passage may currently be found at 1 Richard M. Patterson, Lawyers’ Medical Cyclopedia of
Personal Injuries and Allied Specialties § 2:53 (6th ed. 2013).
9
it is intended. An experiment may or may not have a
therapeutic goal, and it may or may not be designed to yield
useful scientific information. Thus, “experimentation” has a
very broad definition. In the legal and medical literature,
“experimentation” is used to mean everything from the
malicious use of patients as guinea pigs to the noble treatment
of an incurable patient by the most scientifically advanced
methods.
Research is a form of “experimentation” that includes
only studies designed to produce useful scientific data. A
research project may or may not offer therapeutic benefits to
the human subjects involved, but it is always designed to
obtain information beneficial to humankind in general.
Novel techniques, on the other hand, are always
intended to be therapeutic or diagnostic, relative to a
particular patient’s medical problem. Like experimentation,
novel techniques have varying degrees of incomplete prior
testing. The categories of novel techniques may be divided
into (1) new approaches to otherwise untreatable conditions
and (2) new approaches to treatable conditions (where it is
hoped that the new technique will offer some new advantage).
Tarreferro, ¶ 17, 123 P.3d at 919-20.
[¶21] The word “experimental” and similar phrases are terms of art describing a medical
procedure or service that has not been adequately tested or shown to be useful for a
particular treatment purpose. That is, the regularity of the benefits a practitioner hopes to
achieve with the procedure in question has not yet been subjected to sufficiently rigorous
trials to make it an accepted form of treatment among healers practicing in a relevant
specialty. See Tarreferro, ¶ 18, 123 P.3d at 920. See also 12 Steven Plitt et al., Couch
on Insurance § 181:4 (3d ed. updated 2013) (an experimental or investigative procedure
is one whose effectiveness with respect to a specific condition has not been commonly
accepted as proven by the medical profession, or one that is still in the trial stage).8
Similarly, the American Medical Association’s Diagnostic and Therapeutic Technology
Assessment program has defined procedures as experimental or investigational when
8
Clinical trials usually consist of three stages: initial testing to determine the feasibility of an experiment;
relatively small, usually non-randomized studies to determine whether the treatment has any observable
effect in patients; and randomized clinical trials where the efficacy of the experimental treatment on a
group of patients is compared to that of a control group of subjects who receive conventional, non-
experimental treatment. 12 Plitt, supra, § 181:5 n.51.
10
“there is no consensus on the (a) safety or (b) effectiveness of this technology to date,
there is insufficient evidence to determine its appropriateness, or it warrants further
study; use of this technology for the given indication in the specified patient population
should be confined largely to research protocols.” Julia Field Costich, Note, Denial of
Coverage for “Experimental” Medical Procedures: The Problem of De Novo Review
Under ERISA, 79 Ky. L.J. 801, 807 & n.43 (1990-1991).
[¶22] With these definitions in mind, we examine the sufficiency of the hearing
examiner’s findings relating to the experimental nature of therapeutic lasers (to the extent
they are alleged to provide benefits greater than that achieved by the use of heat lamps9)
and whether those findings are supported by sufficient evidence.
[¶23] The hearing examiner first explored Dr. Luddington’s testimony concerning the
mechanism by which the laser might treat pain. He claimed the laser did not heat the
targeted tissue like an ultrasound machine would, but that the light generated by the cold
laser produced a chemical change in the cells of the targeted tissue, thus relieving pain.
The hearing examiner also considered Dr. Luddington’s position that FDA approval of
the laser with which he treated Mr. Birch meant that it should no longer be considered
experimental, when the record in fact showed that FDA approval was based on its finding
that the laser was similar to a heat lamp.
[¶24] Moreover, as noted above, the literature Birch submitted tended to show that
therapeutic lasers are in fact still experimental, contrary to Dr. Luddington’s deposition
testimony. For example, the author of Exhibit 10, relating to the treatment of facial
nerves of rats with lasers, formulated a theory that the light generated by the laser
changes nerve cell chemistry, but admitted that this theory is hypothetical and in need of
further study. Exhibit 7, a statistical analysis of sixteen clinical studies using lasers to
treat neck pain, noted that the medical research community remains skeptical and unable
to make firm conclusions about the “mechanism of action and effectiveness” of
therapeutic lasers due to insufficient data or conflicting findings. Exhibit 8 was a small
study in which some patients with lower back pain were treated with chiropractic
manipulation and exercise therapy, and others with similar complaints received Class IV
laser therapy in addition to manipulation and exercise. The second group self-reported
greater pain reduction than the first, but the author conceded that further study was
required to validate those provisional results.
[¶25] On the other hand, Dr. Staight testified by deposition that a number of insurers and
the Division’s chiropractic advisory panel consider the use of Class IV lasers still to be
9
For reasons discussed above, we confine our inquiry because, if Class III and Class IV therapeutic lasers
are functionally nothing more than heat lamps in the eyes of the research and medical communities, the
compensability of Birch’s travel expenses to Utah turns on the availability of a closer heat lamp, not on
whether the claims of Utah Spine and Disc regarding its laser constitute an experimental use of that
machine.
11
experimental. He also concluded, after reviewing relevant literature and research, that the
laser therapy offered by Utah Spine and Disc Clinic was experimental under the
definition found in the Division’s rules. Dr. Staight also testified—and provided an
article supporting that testimony—that FDA approval of the laser used on Birch meant
only that it was safe, not that it was effective.
[¶26] The hearing examiner ultimately found Dr. Staight to be a more credible and
reliable witness than Dr. Luddington. While the former’s testimony was straightforward,
logical, and focused, the latter was confusing and reflected no clear understanding of how
or why the laser would promote healing. Although Dr. Luddington’s explanation relied
heavily on promotional materials provided by the manufacturer of the laser, those
materials were inconsistent with the manufacturer’s claims to the FDA that the device
was simply used to provide topical heating. Furthermore, Dr. Luddington’s assertion that
the sort of laser treatment provided to Mr. Birch was not experimental was at odds with
his admission that Utah Spine and Disc would not bill insurance companies or workers’
compensation authorities for such treatment because those entities consider it to be
experimental. In addition, none of the literature that Birch relied upon explicitly found
the use of therapeutic lasers not to be experimental.
[¶27] We conclude that the hearing examiner’s order sets out adequate findings of fact,
and that they sufficiently direct us to evidence from which we can discern whether there
is a reasonable basis for them. The hearing examiner’s decision regarding the
experimental nature of cold laser therapy was therefore supported by substantial evidence
and not contrary to law, as he correctly, and consistently with Tarraferro, interpreted the
term “experimental” as it applies to cold laser therapy.
Proration of Travel Expenses
[¶28] Mr. Birch concedes that he asked for reimbursement of what he spent traveling to
Utah, where he received manual chiropractic manipulation and mechanical traction for
back pain, and likewise concedes that similar services were available in Rock Springs.
He now invokes de novo review by this Court, alleging that § 27-14-401(d), which is
quoted in ¶ 15, requires the hearing examiner to reimburse him for the portion of his Utah
travel expenses that he would have paid if he had instead gone to Rock Springs for
treatment.
[¶29] In interpreting statutes, this Court first looks to see if the legislature’s intent can be
ascertained in the ordinary and obvious meaning of the words employed when read
together as a whole, giving full consideration to their arrangement and connection, and
giving effect to every word, clause, and sentence. We need go no further if the statute is
unambiguous; that is, if reasonable persons are able to agree to its meaning consistently
and predictably. Bourke v. Grey Wolf Drilling Co., LP, 2013 WY 93, ¶ 19, 305 P.3d
1164, 1168-69 (Wyo. 2013).
12
[¶30] The statute expresses a preference that medical care be obtained in Wyoming
and/or at an appropriate facility closest to an employee’s home. Reimbursement for
travel expenses is permitted only to the extent that one actually travels to such a site and
receives treatment. Birch’s interpretation would read the expressed preference and its
corollary effect on travel reimbursement out of the statute. In effect, he would have the
Division pay for a trip he did not make to a place where he received no treatment. The
unambiguous language of the legislature was not intended to countenance, much less to
require, such a result.
CONCLUSION
[¶31] The hearing examiner did not err in his interpretation of the applicable Wyoming
statutes. His decision contained adequate findings of fact, and those findings were
supported by substantial record evidence. We therefore affirm the district court’s order
upholding the OAH decision.
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