In the Matter of the Worker's Compensation Claim Of: Lea v. Porter v. State of Wyoming, Ex Rel., Department of Workforce Services, Workers' Compensation Division

IN THE SUPREME COURT, STATE OF WYOMING
2017 WY 69
APRIL TERM, A.D. 2017
June 13, 2017
IN THE MATTER OF THE WORKER'S
COMPENSATION CLAIM OF:
LEA V. PORTER,
Appellant
(Petitioner),
v. S-16-0232
STATE OF WYOMING, ex rel.,
DEPARTMENT OF WORKFORCE
SERVICES, WORKERS'
COMPENSATION DIVISION,
Appellee
(Respondent).
Appeal from the District Court of Fremont County
The Honorable Norman E. Young, Judge
Representing Appellant:
Sky D Phifer, Phifer Law Office, Lander, WY.
Representing Appellee:
Peter K. Michael, Wyoming Attorney General; Daniel E. White, Deputy Attorney
General; Michael J. Finn, Senior Assistant Attorney General; and Benjamin
Fischer, Assistant Attorney General.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.
[¶1] In July 2014, Lea Porter, through her employer, submitted an injury report to the
Wyoming Workers’ Compensation Division (Division) by which she reported an injury
to her left knee that occurred while she was performing a task that required her to be in a
squatting position. In August 2014, the Division issued a final determination informing
Ms. Porter that the Division would not approve payment of benefits because it had
determined her injury was not a work-related injury. Ms. Porter did not object to that
final determination or request a hearing. Ms. Porter did, however, object to an October
2014 final determination that denied payment of costs related to an MRI of her left knee.
[¶2] Ms. Porter’s objection to the October 2014 denial of benefits was referred to the
Office of Administrative Hearings (OAH). The OAH granted the Division summary
judgment, ruling that Ms. Porter could not challenge the denial of benefits for the MRI
because she did not object to the Division’s August 2014 determination that her injury
was not a work-related injury. The district court affirmed the OAH ruling, and Ms.
Porter appealed to this Court. We reverse and remand.
ISSUES
[¶3] Lea Porter presents three issues on appeal, which she states as:
1. Was the Final Determination of August 26, 2014 void
as being without observance of law as it was not issued in a
timely manner pursuant to statute?
2. Was the Final Determination of August 26, 2014 void
as being without observance of law for not following the
statute requiring a statement of reasons?
3. Did the Division abuse its discretion in not making a
redetermination to award benefits under W.S. § 27-14-
601(k)(vi)?
The Division presents essentially the same issues but states them differently:
I. Under Wyoming’s Workers’ Compensation scheme,
the Division’s final determination is not subject to
administrative or judicial review if a claimant does not timely
file a written request for a hearing to contest a Final
Determination denying her eligibility for benefits. Can Porter
obtain judicial review of the Final Determination?
II. Wyoming law forbids judicial or administrative review
of a claim for workers’ compensation if a timely written
request for hearing is not filed. However, the Division may,
1
in its own discretion, make a redetermination within one year
of the original determination. Is the Division required to
make a redetermination and allow Porter to litigate the merits
of her claim, despite her failure to timely file a written request
for a hearing?
[¶4] Given that the parties’ dispute, both here and as it was argued to the OAH and
district court, centers on the preclusive effect of the August 2014 determination, we find
the single dispositive issue may be stated as: Whether Ms. Porter was collaterally
estopped from challenging the Division’s October 2014 final determination because she
failed to timely object to the Division’s August 2014 compensability determination.1
FACTS
[¶5] Lea Porter works as a nutrition specialist at the Wyoming Life Resource Center in
Lander, Wyoming. Her duties include meal preparation, serving meals, and clean-up of
the dining room after meals. On July 18, 2014, Ms. Porter had only recently returned to
full-time work, having been off work or working a reduced schedule while recovering
from knee replacement surgery on her right knee. At about 5:30 p.m. that evening, near
the end of her shift, Ms. Porter injured her left knee while performing her dining room
clean-up duties. She described what happened:
Q. It was the evening meal that had been served?
A. Yes, sir.
Q. And what was this table or thing that you were
getting under to drain?
A. The entrée station.
Q. What's the entrée station look like?
A. It’s metal. It’s wide. It has hot wells where you
serve the food.
Q. So kind of like where you scoop the food out at
a buffet or something like that?
A. Yep—yes.
1
This Court is generally reluctant to frame an appellant’s issues or arguments because we “run the risk of
deciding the appeal on an issue with respect to which the appellee had not been notified and thus had
inadequate defense opportunities.” Elworthy v. First Tennessee Bank, 2017 WY 33, ¶ 3, 391 P.3d 1113,
1115-16 n.1 (Wyo. 2017) (quoting Montoya v. Navarette-Montoya, 2005 WY 161, ¶ 4, 125 P.3d 265, 268
(Wyo. 2005)). In this case, however, the question of the preclusive effect of the August 2014 final
determination was the basis for the Division’s summary judgment motion, and the Division therefore had
an opportunity below to develop its argument on the question—and did in fact present a thorough
argument on the collateral estoppel question. Because we have a clear understanding of the Division’s
position on the question, we will address what we see as the controlling question and treat the Division’s
arguments to the OAH as if they were made to this Court.
2
Q. * * * Does hot water or something circulate
through this to keep the food warm?
A. Yes. We have to open and close a lever
underneath of it and fill it with water, and it has temperatures
to keep the food at the right temperature.
Q. So the table is attached to the building’s
plumbing?
A. Yes, sir.
Q. And hot water can be taken in to heat the food
in it?
A. Yes, sir.
Q. Which fills up wells that need to be drained?
A. Yes, sir.
Q. And that's what you were doing?
A. Yes, sir.
Q. Okay. And that’s a manual operation. It does
not – you can’t push a button somewhere? You have to
physically get under the table?
A. Yes, sir.
Q. All right. The wells were empty, the meal had
been completed, and you’re just under there draining the
water off so that the table is prepared for the next meal?
A. Yes.
Q. What did you feel in your left knee? What did
it feel like?
A. Well, I was just back at work full time, and I
had to reach under there. And because of my surgery, I
wasn't able to get on my knees. I had to turn and twist and lift
myself up, and it like felt like a ripping down my leg and my
knee area immediately.
Q. Sort of down the front or the back of your shin?
A. Down the front of – yeah, on the inside.
Q. Front on the inside?
A. Yes.
Q. Of your shin. Okay. Inside being the one that’s
closest to the other leg, right?
A. Yes.
Q. Did you hear or feel any popping or anything
like that?
A. It kind of popped, and it felt like a burning tear.
Q. Was there pain?
A. Immediately.
Q. And that was a burning pain?
3
A. Uh-huh.
Q. You have to say yes or no –
A. Oh, yes.
Q. * * * Had you ever felt symptoms like that
before, tearing, popping, burning pain, any kind of pain in
that knee?
A. Yes, similar to my first injury – that’s why I
was worried – but different as it went down the inside of my
leg.
Q. So it felt kind of like when your right knee had
the problem?
A. Yes.
Q. But it went down the inside of your leg, which
is different?
A. Yes.
Q. The other knee had gone down the outside?
A. It was all over.
Q. All over. Now, did any other symptoms come
up as far as swelling, bruising or anything like that?
A. Swelling, and I could barely walk.
Q. And that was because of the pain?
A. Yes, sir.
Q. And did all of this come on suddenly all at
once, or are we talking about –
A. Suddenly, Immediately.
[¶6] After her shift ended on July 18, 2014, Ms. Porter reported her knee injury to her
supervisor and went home and put ice on her knee. Ms. Porter did not miss any days of
work, and on July 27, 2014, she took her report of injury to human resources. On July
28, 2014, Ms. Porter, through her employer, submitted a report of injury to the Division.
[¶7] The human resources officer who assisted Ms. Porter with her injury report asked
Ms. Porter if she had seen a doctor. Ms. Porter responded that she did not have health
insurance, and she asked to see Dr. Gilbertson, the on-site physician who treats both
residents of the Wyoming Life Resource Center and employees of the Center who are
injured at work. The human resources officer agreed and made an appointment for Ms.
Porter to see Dr. Gilbertson on July 28, 2014. Dr. Gilbertson described the July 28, 2014
consultation as follows:
Q. So the first time on the left knee that you saw
Lea Porter was on July 28th of 2014?
A. Correct.
Q. And tell me what she reported to you.
4
A. Well, she reported that she had injured it. She
was at work * * * squatted down reaching for something
under the table and felt something, felt a sudden discomfort in
the medial inside part of her knee.
Q. And what treatment did you give her?
A. Well, I examined her, and the only positive
finding – and if I can elucidate a little further – from an exam,
we can tell if somebody has an effusion, excess fluid, whether
it's blood or clear fluid, joint fluid. We can also test their
ligaments for stability and also check for if there's any
evidence that they may have injured special cartilages that the
knee has called menisci or semilunar cartilages.
And I did all that, and the only thing that I could find
was she had joint line tenderness, which just means if you
palpate somebody’s joint line on their knee, if the cartilages
are okay, it doesn’t cause pain. And she had specific joint
line tenderness, which is kind of what I would call a soft sign
that she might have a cartilage tear, which is what I think she
had, at least part of her problem, with her right knee before.
And again, there are other knee cartilage things you
can do to see if is it likely they have a tear, but I've also – and
those were negative. But I’ve seen over the years numerous
people that the only positive finding was joint line tenderness.
So I thought, well, especially given that she’d had another
knee that, you know, she had a tear in, that it would be
indicated to do an MRI on that knee.
And again, as you guys both probably know, routine x-
rays don't show us anything except bone, CAT scans can
show us to some degree, and not a bad amount, the cartilages
and ligaments, but not nearly as accurate as an MRI which
uses magnetic fields to get a very clear anatomic picture of
those soft tissues.
Q. Okay. And so what all did you recommend for
her at that time?
A. Well, I recommended that she take a moderate
dose of Ibuprofren, and I also prescribed a pain reliever,
tramadol, for her pain and to see me, you know, shortly after
she had the MRI.
[¶8] On August 1, 2014, upon Dr. Gilbertson’s referral, Ms. Porter had an MRI of her
left knee. Dr. Gilbertson described the results of the MRI:
Q. Did you receive the results of that MRI?
5
A. Well, I got a verbal report when I had seen her
on [August] 8th, but for some reason, we hadn’t gotten the
typewritten report. And the verbal report was that there
wasn’t any internal derangement, meaning no acute ligament
or cartilage tears, and so my note from the 8th says normal
knee.
And so with that verbal report, I just said, “Well, I
think you just strained it. Let’s do some ice and some home
physical therapy,” and I renewed her tramadol. And I let her
go back to work without any specific restrictions, with the
exception that with anything like this, I always tell them, “Do
what you can do. If it hurts to do something, don’t do it.”
Q. So did you do any examination at that time?
A. Yeah. And she still had some tenderness, and I
put very mild tenderness, in the left knee joint right about
here. Okay.
Q. Here meaning on the inside –
A. Well, on the medial side just – you know, just
in front or just sideways from the patella, from the kneecap.
Q. And what was your impression at that time?
A I said, “Well, Lea, I think you just strained
some things.” And, what the heck do we mean by a strain? I
mean that she probably tweaked a little bit some of the –
perhaps the ligaments or the fibrous tissue of the capsule of
the knee joint that holds the joint fluid in and things, but
without any obvious tears to any significant internal
structures.
Q. So did you see her again on her left knee?
A. I did. I saw her September 5th, and I did not
examine her. She told me that her knee was feeling better.
And I now had the paper copy, and I went over with
her that there were some degenerative changes, meaning
some arthritic changes in her cartilage and some small fluid-
filled cysts, which just means again degenerative changes
from wear and tear. And I told her that she ought to just be
careful with her knee, no specific restrictions, but just be
careful going up and down stairs, try to avoid twisting
motions and just kind of see how things go.
Q. So prior to ordering the MRI, did you feel that it
was medically necessary to do that?
A. I did based on the amount of pain and the joint
line tenderness that she had.
6
[¶9] Regarding the strain to Ms. Porter’s left knee, Dr. Gilbertson opined:
Q. * * * In looking at the MRI that has an exam
date of 8/1/2014 – are you with me?
A. Yeah.
Q. So down at the bottom, it’s got a category called
effusion
A. Uh-huh.
Q. And then it says large joint effusion. Can you
explain that?
A. Well, again, effusion – well, the knee has
several compartments that have fluid in the knee, the main
one being the knee joint itself. And that compartment is kept
in place – the fluid is kept in place by a fibrous capsule
surrounding the knee joint, and it also extends not the joint
capsule, but the same fluid circulates through a bursa above
the kneecap here. And so there’s a small amount of fluid in
all of our knee joints and in the bursa to lubricate it. That’s
what the joint fluid and the bursa fluid do.
So when they did her MRI, they saw that there was
more fluid in the joint than normal. And I must relate back to
my note that obviously it didn’t impress me that she had very
much effusion when I saw her. I really would have put it in
my note. But there’s no question that she had more fluid in
and around the joint than is normal, okay, when they did the
MRI.
Q. Okay.
A. And do you want me to elucidate on that a little
more?
Q. Yes, please.
A. An effusion in a large joint like the knee means
usually infection, inflammation, like rheumatoid arthritis, not
with degenerative arthritis, or trauma. Okay. Those are the
three things that I can think of that would cause an effusion.
Q. So the strain injury that she had from the
squatting and that she described to you –
A. Right.
Q. --could that – is it very likely that that is the
cause of that?
A. I believe it’s certainly possible, and in my
estimation, it’s very likely, yes.
7
[¶10] On July 28, 2014, the Division received Ms. Porter’s injury report. On August 26,
2014, the Division issued to Ms. Porter a notice entitled “Final Determination Regarding
Denial of Benefits.” The August 26th final determination notified Ms. Porter:
Please be advised that the Workers’ Compensation Division
has reviewed your injury report and has determined we do not
approve payment of benefits.
 Definition of injury does not include: 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.
(Wyoming Statute § 27-14-102(a)(xi)(G))
Either the injured worker or the employer may object to this
determination and request a hearing. Affected parties have a
right to a hearing before a hearing examiner as provided by
the Wyoming Worker’s Compensation Act and to legal
representation. The Division must receive a written request
for a hearing on or before September 11, 2014. If a timely
written request for hearing is not filed with the Division, the
final determination by the Division pursuant to W.S. § 27-14-
601(k) shall not be subject to further administrative or judicial
review.
[¶11] Ms. Porter did not object to the August 26, 2014 final determination or request a
hearing. Thereafter, on September 25, 2014, the Division received a bill from Riverton
Memorial Hospital for Ms. Porter’s August 1, 2014 MRI. On October 15, 2014, the
Division sent a final determination to Riverton Memorial Hospital, with a copy to Ms.
Porter, denying payment for the MRI. The October 15, 2014 final determination cited the
same statutory exclusion of injuries resulting from the natural aging process or from
normal activities of day-to-day living, and added as an additional ground for denial: “A
claim for services must be reasonably justified and required as a result of the work related
injury. W.S. 27-14-501(a).” The determination also advised: “If the health care provider
or the claimant disagrees with this determination, a hearing may be requested.”
[¶12] Ms. Porter objected to the October 2014 final determination, and the Division
referred the matter to the OAH for hearing. The Division moved for summary judgment,
arguing that Ms. Porter’s failure to object to the August 2014 final determination
precluded her from objecting to the October 2014 final determination. On June 15, 2015,
the OAH entered an order granting the Division’s motion for summary judgment. The
OAH reasoned, in part:
In her Report of Injury Claimant alleged a left knee
injury which she said occurred on July 18, 2014 while
8
working as a nutrition specialist at the Lander Life Resource
Center. The Division acted upon this Report of Injury
ultimately issuing a Final Determination denying
compensability on August 26, 2014. As stated in the Final
Determination, if Claimant disagreed with it, she had to
respond to it in writing before September 11, 2014. She
never did so. Accordingly, pursuant to the clear provisions of
W.S. § 27-14-601(k)(iv) [and] (vi) the Final Determination is
not subject to further administrative review, except that the
Division may, “in its own discretion,” make a re-
determination of that Final Determination within one year.
Claimant argues that the matter before the Office is the
second Final Determination only, being the one which denied
payment of the MRI bill. While it is true that the original
Final Determination denying compensability is not before the
Office for consideration, the legal significance of it and
Claimant’s failure to act timely upon it is certainly something
the Office must consider in making its decision as to the
October 15, 2014 Final Determination denying payment of
the MRI.
Therefore, the issue to be determined is whether
Claimant can overcome this statute of limitations type of
provision in asserting a claim for medical benefits arising out
of the work event which was the subject of the Report of
Injury and initial Final Determination denying
compensability? The Office concludes she cannot and that
summary judgment should be granted in favor of the
Division.
[¶13] The OAH rejected Ms. Porter’s arguments concerning the adequacy of the August
2014 final determination, as well as her argument that the Division abused its discretion
in failing to make a re-determination of the August 2014 final determination. The OAH
further ruled:
Finally, Claimant argues that the disputed medical
benefit in any event should be paid because the MRI study
was ordered to diagnose or at the very least to rule out that
Claimant had experienced a work-related injury or material
aggravation of a pre-existing condition. This argument may
have had merit if Claimant had timely responded to the initial
Final Determination, but she did not. See, e.g., Snyder v.
State ex rel. Wyoming Workers’ Compensation Div., 957 P.2d
289, 295 (Wyo. 1998). However, for the Office to consider
9
whether or not payment for a “rule out” basis was appropriate
the Office would have to ignore the fact that Claimant did not
timely respond to the initial Final Determination.
* * * Because Claimant did not timely respond to the
initial Final Determination Regarding Compensability, she
cannot now seek a medical benefit alleged to have been
necessitated by the event which caused the alleged work
injury.
[¶14] Ms. Porter filed a timely petition for review in district court, and on July 28, 2016,
the district court issued an order upholding the OAH decision. Ms. Porter thereafter filed
a timely notice of appeal to this Court.
STANDARD OF REVIEW
[¶15] We review a district court’s ruling on an administrative appeal as if it had come
directly from the administrative agency and give no deference to the district court’s
decision. Price v. State ex rel. Wyo. Dep’t of Workforce Servs., 2017 WY 16, ¶ 7, 388
P.3d 786, 789 (Wyo. 2017). Whether a determination by the Division should be given
preclusive effect is a question of law. State ex rel. Workers’ Safety Div. v. Jackson, 994
P.2d 320, 322 (Wyo. 1999) (reviewing preclusive effect of final determination denying
benefits as a question of law). “[W]e review an agency’s conclusions of law de novo, and
will affirm only if the agency’s conclusions are in accordance with the law.” Price, ¶ 7,
388 P.3d at 790 (quoting Bailey v. State ex rel. Wyo. Dep’t of Workforce Servs., 2015
WY 20, ¶ 12, 342 P.3d 1210, 1213 (Wyo. 2015)).
DISCUSSION
A. Preclusive Effect of August 2014 Final Determination
[¶16] Collateral estoppel bars relitigation of previously litigated issues and is a principle
of law that generally applies to issues adjudicated before an administrative agency.
Matter of Claim of Hood v. State ex rel. Wyo. Dep’t of Workforce Servs., 2016 WY 104,
¶ 21, 382 P.3d 772, 777 (Wyo. 2016). We have, however, limited its application in the
context of workers’ compensation benefits. Hood, ¶ 22, 382 P.3d at 777 (“[T]he
Division’s award of uncontested benefits does not establish that future benefits cannot be
challenged.”); Osenbaugh v. State ex rel. Wyo. Workers’ Safety and Compensation Div.,
10 P.3d 544, 549 (Wyo. 2000) (quoting Jackson, 994 P.2d at 323) (“This Court does ‘not
give collateral estoppel effect to an uncontested Division determination denying
benefits.’”); Tenorio v. State ex rel. Wyo. Workers’ Compensation Div., 931 P.2d 234,
240 (Wyo. 1997) (final determination awarding benefits does not estop the Division from
denying future benefits). Each of these cases addressed the effect of an uncontested
Division determination, and the rule that emerged from the cases may be summarized as:
10
an uncontested Division determination, either awarding or denying benefits, will not be
given preclusive effect with respect to future determinations and objections.
[¶17] The Division acknowledges these prior rulings, but it contends this case is
distinguishable because the final determination here was the Division's initial
determination of compensability. It argues that the provision governing the initial
determination of compensability, Wyo. Stat. Ann. § 27-14-601(a), reflects an intention to
treat the compensability determination as finally and fully litigated if a timely objection is
not made to that determination. We disagree.
[¶18] We begin with the reasoning underlying our prior holdings. In Tenorio, where we
held a final determination awarding benefits does not estop the Division from denying, or
the employer from objecting to, future benefits, we premised our holding on the
legislature’s intent concerning finality. We explained:
[W]e must recognize the legislature’s intent to provide a
distinct forum for “a final adjudication on the merits.” When
the legislature provided for a continuing right to notice and
hearing with the submission of each claim, it provided a
distinct forum for contested cases. In any contested case,
“[t]he hearing examiner has exclusive jurisdiction to make the
final administrative determination of the validity and amount
of compensation payable under [the workers’ compensation]
act.” Wyo.Stat. § 27-14-602(c) (1991). Were we to apply
collateral estoppel to the uncontested factual determinations
of the Division in future claims for benefits which are
contested, we would nullify the legislature’s express intent
that the hearing examiner be the final arbiter on the merits of
a contested case.
Tenorio, 931 P.2d at 240.
[¶19] In Jackson, we extended the same rule, based on the same reasoning, to final
determinations denying benefits. We again explained:
Although the present case concerns an uncontested denial of
benefits and Tenorio involved an uncontested award of
benefits, the analysis remains the same. In discerning the
legislature’s intent in this area, the Tenorio court
acknowledged that the legislature has provided a “distinct
forum,” the Office of Administrative Hearings, for final
adjudications on the merits. 931 P.2d at 240. We also
recognized that the legislature intended that the Office of
11
Administrative Hearings, and not the Division, be the final
arbiter of contested cases: “Were we to apply collateral
estoppel to the uncontested factual determinations of the
Division in future claims for benefits which are contested, we
would nullify the legislature’s express intent that the hearing
examiner be the final arbiter on the merits of a contested
case.” Id. Indeed, “[t]he hearing examiner has exclusive
jurisdiction to make the final administrative determination of
the validity and amount of compensation payable under this
act.” Wyo. Stat. Ann. § 27–14–602(c) (Lexis 1999).
Jackson, 994 P.2d at 323.
[¶20] Against this backdrop, we turn to Wyo. Stat. Ann. § 27-14-601(a), which the
Division cites as the distinguishing factor here. Section 601(a) provides:
Upon receipt, the division shall review the initial injury
reports to determine if the injury or death resulting from
injury is compensable and within the jurisdiction of this act.
No subsequent claim for compensation under this act shall
be approved if the division determines the injury or death is
not compensable and under the jurisdiction of this act or if
the employer states on his injury report that the injury is not
compensable, until a determination is rendered by the
division. The division shall provide notice of its
determination to the employee, employer and the claimant.
Wyo. Stat. Ann. § 27-14-601(a) (LexisNexis 2015) (emphasis added).
[¶21] We are not persuaded that § 27-14-601(a) gives the Division’s initial
compensability determination a preclusive effect that is absent from other uncontested
determinations. Although the highlighted language suggests a conclusiveness in the
Division’s compensability determination, the fact remains that the determination is one
made by the Division. The crux of our holdings in Tenorio and Jackson was our
conclusion that the legislature did not intend Division determinations to carry the
preclusive weight that OAH decisions carry. We are able to find no distinguishing
language in section 601(a) that persuades us to treat compensability determinations
differently.
[¶22] First, a compensability determination made under section 601(a) is subject to the
same statutory requirements that informed our decisions in Tenorio and Jackson. Wyo.
Stat. Ann. § 27-14-601(k) directs that “[d]eterminations by the division pursuant to this
section * * * shall be in accordance with the following,” and what follows are, among
12
other requirements, the requirement that the determination provide notice of the right to a
hearing and the requirement that the Division, upon receipt of a hearing request,
immediately notify the appropriate hearing body. Wyo. Stat. Ann. § 27-14-601(k)(iii),
(v) (LexisNexis 2015). That appropriate hearing body “has exclusive jurisdiction to
make the final administrative determination of the validity and amount of compensation
payable” under the Worker’s Compensation Act. Wyo. Stat. Ann.§ 27-14-602(c) (OAH);
§ 27-14-616(b)(iv) (Medical Commission) (LexisNexis 2015).
[¶23] Additionally, there is no provision in Section 601(a) or 601(k) that alters the
information that must be included in a Division determination that issues after an
uncontested determination denying compensability. In other words, even a final
determination that issues after an uncontested determination denying compensability
must, like all other determinations, provide notice of the employee’s right to a hearing.
Thus, again, the same statutory requirements we found indicative of the legislature’s
intent in Tenorio and Jackson apply equally to determinations issued after an uncontested
determination denying compensability.2
[¶24] Reading section 601(a) in light of our reasoning in Tenorio and Jackson, we see
no reason to treat compensability determinations differently from other Division
determinations under Wyo. Stat. Ann. § 27-14-601. We thus conclude that our holdings
in Tenorio and Jackson, that the legislature intended a determination to be deemed fully
and finally adjudicated only after the determination is contested and ruled on by the
appropriate administrative hearing body, apply with equal force to the Division’s initial
compensability determination.
[¶25] This result is not novel. Our ruling in Jackson in fact addressed an uncontested
Division determination that an injury was not compensable, and we rejected the
Division’s argument that any preclusive effect should attach to that determination. In
Jackson, the employee suffered an injury to her left ankle that the Division determined
was a compensable work injury. Jackson, 994 P.2d at 321. Subsequently, the employee
developed degenerative conditions in her right hip and knee, which her treating physician
related to the left ankle injury. Id. at 321-22. The employee’s physician submitted a bill
for treatment of the right hip and knee, and the Division issued a final determination
denying benefits based on its finding:
The hips and knees have not been established as part of the
original workers’ compensation left ankle injury. This denial
is based upon the Division’s authority to review all medical
records pursuant to Wyoming Statute 27–14–401(b).
2
This is in fact what happened in this case. The Division issued the August 2014 final determination
denying compensability, to which Ms. Porter did not object. Even though that first compensability
determination went uncontested, the Division, in accordance with section 601’s requirements, included in
its October 2014 final determination notice of Ms. Porter’s right to a hearing.
13
Jackson, 994 P.2d at 321.
[¶26] Neither the employee nor the employee’s physician submitted a timely objection
to the Division’s determination that the employee did not suffer a compensable work
injury to her right hip and knee. Jackson, 994 P.2d at 321. Subsequently, the employee
submitted a claim for temporary total disability (TTD) benefits related to her hip and
knee conditions, and that claim was again denied. Id. at 322. This time the employee
timely objected, and the matter was referred to the OAH. Id. Before the OAH, the
Division argued that the employee's failure to timely object to the earlier final
determination “precluded her from establishing that her hip and knee ailments are
compensable.” Id. The OAH rejected the argument, and we affirmed, concluding as
indicated above, that “[j]ust as we will not give collateral estoppel effect to an
uncontested award of benefits by the Division, we will not give collateral estoppel effect
to an uncontested Division determination denying benefits.” Id. at 322, 323.
[¶27] Our precedent is thus clear. Whether an uncontested determination by the
Division concerns a specific bill or type of benefit or the fundamental question of
compensability, that determination does not have a preclusive effect on an injured
employee’s right to contest future Division determinations.
[¶28] This limitation on the preclusive effect of the Division’s determination is not only
in keeping with the legislature’s intent, but also makes sense in light of the purpose
served by the principle of collateral estoppel. We have said:
The principle of collateral estoppel bars relitigation of
previously litigated issues, and is based on the common-law
principle that “a right, question or fact put in issue, and
directly determined by a court of competent jurisdiction,
cannot be disputed in a subsequent suit by the same parties or
their privies.”
Hood, ¶ 21, 382 P.3d at 777 (quoting Tenorio, 931 P.2d at 238).
[¶29] Aside from our conclusion that the legislature expressed a clear intention to make
the OAH or Medical Commission the “court of competent jurisdiction” for these
determinations, it is difficult to find in the Division’s August 2014 final determination a
litigation of the compensability question. Because the August 2014 final determination
cited a statutory provision that contained two different grounds for denying a claim, it is
impossible to glean what actual findings the Division made. We cannot discern whether
the Division considered Ms. Porter’s squatting to reach under the entrée table to be a
normal activity of day-to-day living, or whether it found that her left knee strain and
effusion was an injury resulting from the natural aging process, or some other
14
combination of these considerations. The August 2014 determination simply bears no
indicia of an actual adjudication and provides no basis to implicate the principle of
collateral estoppel.
[¶30] Finally, we also observe that whichever statutory basis informed the Division’s
compensability determination, that determination had limited bearing in itself on the
question of whether Ms. Porter should be awarded the costs related to her MRI. We have
held that “[a]n appropriate diagnostic measure is not non-compensable merely because it
fails to reveal an injury which is causally connected to an on-the-job injury.” Mitcheson
v. State ex rel. Wyo. Workers’ Safety & Compensation Div., 2012 WY 74, ¶ 22, 277 P.3d
725, 734 (Wyo. 2012) (quoting Snyder v. State ex rel. Wyo. Worker’s Comp. Div., 957
P.2d 289, 295 (Wyo. 1998)). The determination of whether Ms. Porter’s MRI is
compensable as diagnostic testing depends not on the Division’s compensability
determination but on whether the evidence shows an “objective indication of a
physiologic connection between the claimant’s injury and the diagnostic measure.”
Mitcheson, ¶ 23, 277 P.3d at 734-35.
B. Directions on Remand
[¶31] Ms. Porter testified that she missed no work as a result of the injury to her left
knee and that the only workers' compensation benefit she is seeking is an award to cover
the costs related to her MRI. As we noted above, whether Ms. Porter’s MRI is
compensable as diagnostic testing depends on whether the evidence shows an “objective
indication of a physiologic connection between the claimant’s injury and the diagnostic
measure.” Mitcheson, ¶ 23, 277 P.3d at 734-35. Against this standard, we remand to the
OAH for a determination of whether Ms. Porter is entitled to benefits to cover the costs
related to her MRI.
C. Remaining Issues
[¶32] Because we have found that the August 2014 final determination did not preclude
Ms. Porter’s objection to the October 2014 Final Determination, we need not address Ms.
Porter’s claims concerning the adequacy and timeliness of the August 2014 final
determination. For the same reason, we also need not address the question of whether the
Division abused its discretion in failing to make a redetermination of compensability.
CONCLUSION
[¶33] We do not give collateral estoppel effect to an uncontested Division determination
denying workers’ compensation benefits even when the denial is based on a finding that
the employee did not suffer a compensable injury. Lea Porter’s failure to object to the
Division’s August 2014 final determination therefore did not preclude her objection to
the Division’s October 2014 final determination denying benefits to cover her MRI costs.
15
We therefore reverse and remand to the OAH for a determination of whether Ms. Porter
is entitled to benefits to cover her MRI costs.
16