Courtney M. Vandom v. State of Wyoming, ex rel. Department of Workforce Services, Workers' Compensation Division

IN THE SUPREME COURT, STATE OF WYOMING
2023 WY 51APRIL TERM, A.D. 2023
May 30, 2023
COURTNEY M. VANDOM,
Appellant
(Petitioner),
v.
S-22-0283
STATE OF WYOMING, ex rel.
DEPARTMENT OF WORKFORCE
SERVICES, WORKERS’
COMPENSATION DIVISION,
Appellee
(Respondent).
Appeal from the District Court of Campbell County
The Honorable Matthew F.G. Castano, Judge
Representing Appellant:
Weston T. Graham, Barney & Graham, LLC, Sheridan, Wyoming.
Representing Appellee:
Bridget Hill, Wyoming Attorney General; Mark Klaassen, Deputy Attorney
General; Peter Howard, Senior Assistant Attorney General; Holli J. Welch, Senior
Assistant Attorney General.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, 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.
GRAY, Justice.
[¶1] Courtney Vandom suffered a compensable work injury to her lower back on
September 4, 2020. In January 2021, the Workers’ Compensation Division (Division)
denied benefits for treatment to her upper back, neck, and arms (cervical spine) because
these conditions were unrelated to her work injury. Ms. Vandom requested a contested
case hearing with the Office of Administrative Hearings (OAH) resulting in a denial of
benefits based on a finding that Ms. Vandom’s cervical spine, carpal tunnel, and cubital
tunnel injuries were not causally related to her workplace injury. Ms. Vandom appealed
to the district court which affirmed the OAH. Ms. Vandom claims the OAH’s
determination is unsupported by the evidence and is arbitrary, capricious, or otherwise not
in accordance with the law. We affirm.
ISSUE
[¶2] Ms. Vandom raises one issue:
Was the OAH decision that Ms. Vandom did not meet her
burden of establishing the causal relationship between her
cervical spine injuries and her work-related accident
unsupported by substantial evidence or otherwise arbitrary and
capricious?
FACTS
[¶3] On September 4, 2020, while performing her duties as a lab tech, Ms. Vandom
twisted her back while moving a wheeled coal crusher. She filled out a hand-written report
of injury the same day. Because Ms. Vandom’s handwriting was difficult to read, her
supervisor typed the report of injury and brought the typed report to Ms. Vandom to review
on September 10, 2020. The typed report states that Ms. Vandom’s injury was to her lower
back, hips, and thighs, and she experienced numbness in her right fingers. Ms. Vandom
signed the typewritten report, although she later testified it was incomplete and she did not
read it thoroughly before signing.
[¶4] The day after her injury, Ms. Vandom went to the emergency room at Campbell
County Hospital for medical treatment where she was treated by Dr. Jon Hayden. The
record of this visit states Ms. Vandom reported “lower back pain after twisting at work”
and that “[w]hile she was maneuvering the machine, she had sudden, sharp, shooting low
back pain that radiated down both legs.” The record also includes the doctor’s notes that
an examination of Ms. Vandom’s neck “included findings of normal range of motion,
Trachea midline, no cervical adenopathy, no tenderness.” The doctor noted, “[Ms.
Vandom’s] physical exam is consistent with lower back strain.”
1
[¶5] Eight days after her work injury, on September 12, 2020, Ms. Vandom was in a
motorcycle accident. At the contested case hearing, she testified:
I was at my daughter’s birthday party, and I had gotten on a
motorcycle. And the—I was just sitting on it, and the
motorcycle popped into gear and took off. And I hit the—the
back of a—I guess it was like the bumper part of a parked
vehicle.
She said she received stitches for a laceration to her right arm but did not experience any
pain in her neck.
[¶6] On September 15, 2020, Ms. Vandom sought treatment from Dr. Robert Woodruff
at Black Hills Orthopedic and Spine Center. The patient chart notes Ms. Vandom had been
previously treated by Dr. Woodruff in 2019 and returned for a reevaluation after her
September 4, 2020 injury. It describes her chief complaint as low back injury stemming
from Ms. Vandom’s report that “she was pushing and pulling some equipment in the lab
and felt a pop in her back . . . and into her hamstrings and then numbness and tingling in
her fingers.” Dr. Woodruff ordered physical therapy and magnetic resonance imaging
(MRI) of her cervical and lumbar spine. Dr. Woodruff also noted Ms. Vandom had “a right
arm laceration that [has] been repaired” and “bruising on her bilateral legs from a bike
accident.” He observed that there was no “bruising scarring or swelling” in either the
lumbar or cervical spine.
[¶7] On September 23, 2020, the Division issued a final determination, concluding Ms.
Vandom had suffered a compensable injury to her lumbar spine.
[¶8] After completing the MRIs and six weeks of physical therapy, Ms. Vandom made a
second visit to Dr. Woodruff. Dr. Woodruff noted the “predominant finding” of Ms.
Vandom’s recent MRI of the cervical spine “is degenerative disc disease . . . .” He stated:
I want her to continue with her physical therapy . . . . I am
concerned about the appearance of her cervical spine. She does
have precocious degeneration with kyphosis[1] and spinal
stenosis.[2] She is also having some weakness in her left hand.
1
“Kyphosis is an exaggerated, forward rounding of the upper back.” Mayo Clinic, Kyphosis,
https://www.mayoclinic.org/diseases-conditions/kyphosis/symptoms-causes/syc-20374205 (last visited
May 15, 2023).
2
“Spinal stenosis, a narrowing of the spaces in your spine, can compress your spinal cord and nerve roots
exiting each vertebrae.” Cleveland Clinic, Spinal Stenosis,
https://my.clevelandclinic.org/health/diseases/17499-spinal-stenosis (last visited May 15, 2023).
2
I would like to get an [electromyography (EMG) 3] of her
bilateral arms to rule out any carpal tunnel or cubital tunnel
symptoms. If this is negative, then the likelihood is that the
symptoms are coming from the spinal stenosis at C5-6 and C6-
7.
[¶9] Ms. Vandom received an upper extremity bilateral EMG on December 21, 2020.
Dr. Woodruff called her on December 28 and left a message telling her that the EMG shows
“very mild peripheral impingement” and her “symptoms are more likely coming from her
cervical spine.” He recommended a cervical disc replacement at C5-6 and C6-7 and asked
her to call to discuss surgical options. On January 6, 2021, Dr. Woodruff ordered a cervical
epidural steroid injection and discussed surgical recommendations with Ms. Vandom.
[¶10] On January 8, 2021, January 22, 2021, and January 27, 2021, the Division denied
payment for treatments for cervical spine, carpal tunnel syndrome, and cervical disc
degeneration because these conditions were not related to Ms. Vandom’s September 4,
2020 lumbar work injury. Ms. Vandom timely objected to these determinations and
requested a contested case hearing.
[¶11] On April 24, 2021, Dr. Ricardo Nieves conducted an impairment rating examination
of Ms. Vandom. Dr. Nieves’ report reflects that Ms. Vandom stated “on 9/4/2020 [she]
injured her low back when she was prepping a sample as a Laboratory Technician. [She]
reports that she was moving a crusher machine and twisted her back [and] reported lower
back pain and numbness on her feet and hands.” Dr. Nieves makes no reference to neck
pain, and the pain diagram Ms. Vandom filled out for him indicates only low back pain
and intermittent numbness and tingling in her hands and feet. After reviewing the medical
records and performing a physical examination, Dr. Nieves found:
1. Lumbar Disc Herniation and Spinal Stenosis with non-
verifiable radicular complaints.
2. Cervical spinal stenosis which in my professional
opinion within a reasonable degree of medical probability is
coincidental and not causally related to the 9/4/2020 work
injury but related to degenerative changes. There are no
physical exam findings of cervical radiculopathy or
myelopathy.
3
“Electromyography (EMG) is a diagnostic procedure to assess the health of muscles and the nerve cells
that control them (motor neurons).” Mayo Clinic, Electromyography, https://www.mayoclinic.org/tests-
procedures/emg/about/pac-20393913 (last visited May 15, 2023).
3
Dr. Nieves determined Ms. Vandom had reached maximum medical improvement at a 6%
whole person impairment.
[¶12] In her response to interrogatories on June 18, 2021, Ms. Vandom supplied a version
of her work injury that was significantly different from those she had previously presented.
She averred:
The Claimant was working the overnight shift at
Caballo Mine beginning at 6 pm on September 4, 2020. . . .
Shortly after 6 pm, the Claimant was moving a crusher back to
a safe operating position and upon putting the machine back
the Claimant immediately experienced sharp shooting pain in
both arms and her arms and fingers went numb, pain went
through her back and down into her legs.
(Emphasis added.)
[¶13] Ms. Vandom designated Dr. Woodruff as her medical expert in the contested case
hearing. He was expected to testify by deposition that her ongoing medical conditions
were causally related to her workplace injury. We discuss Dr. Woodruff’s testimony in
some detail because the deposition did not proceed as expected.
[¶14] Dr. Woodruff was asked to opine whether Ms. Vandom’s carpal tunnel (wrist) and
cubital tunnel (elbow) were causally related to the September work injury, and he
eventually responded: “I would have to say that I couldn’t give a definitive answer one
way or the other.” The Division’s counsel then asked him questions about the medical
records from the September 5, 2020 emergency room visit. After reviewing the emergency
room report for the first time, Dr. Woodruff agreed that in that report the patient denied
having neck pain and reported only a back injury.
[¶15] The Division’s counsel then asked Dr. Woodruff what he knew about Ms.
Vandom’s September 12 motorcycle accident. After checking his notes, Dr. Woodruff
testified he did not realize it was a motorcycle as opposed to a bicycle accident. He went
on to say the intake paperwork did not reference the accident but only described a work
injury. Dr. Woodruff agreed that his evaluation and treatment featured Ms. Vandom’s
cervical spine. The MRI taken October 21, 2020, showed degenerative changes in her
cervical spine—“chronic stuff”—but nothing to indicate a recent injury. The following
exchange then took place:
Q. Do you think that what is shown on the MRI of her
cervical spine . . . was caused by the workplace injury on
September 4, 2020?
4
A. In light of this new information, I would have to say that
there is definitely doubt in my mind that it is. The findings on
the MRI certainly look like they would pre-exist an injury and
look more chronic than that. Specifically, the patient had
what’s called myelomalacia, which is kind of a fancy word for
scarring in the spinal cord, which would be a more chronic
finding compared to something . . . that would be six weeks
from her work injury.
So I think given the fact that she was seen the day after
her accident and did not complain of any neck pain at that time
and only started complaining of other symptoms and she had a
motorcycle accident in the interim, I would be suspicious that
[the] motorcycle accident was a more likely cause of her neck
problems.
During the remainder of the direct examination, Dr. Woodruff continued to opine he no
longer believed the cervical spine was causally connected to the incident on September 4,
2020.
[¶16] On cross-examination, Dr. Woodruff drifted back to his original opinion. After
having Dr. Woodruff read Ms. Vandom’s June 2021 interrogatory statement describing her
physical reaction to the workplace incident, her counsel asked Dr. Woodruff if her
cervicalgia/neck pain 4 was caused by the work injury. He responded:
A. I would say based on that answer, the way that’s
described, it’s different than it had been described to me in the
past. Previously it was described as a pain where she felt a pop
in her back. This makes it sound like the pain originated in her
neck and then down her arms and down her back. So based on
that history, it sounds more like a cervical problem rather than
a lumbar problem from that work injury on September 4, 2020.
. . .
Q. [A]re we back to where we started, that [her] neck and
really the treatment you were giving [her] on [her] neck, is it
4
“Neck pain, sometimes called cervicalgia, is pain in or around your spine beneath your head. Your neck
is also known as your cervical spine. Neck pain is a common symptom of many different injuries and
medical conditions.” Cleveland Clinic, Neck Pain, https://my.clevelandclinic.org/health/symptoms/21179-
neck-pain (last visited May 24, 2023).
5
related to September 4, 2020, based on a reasonable degree of
medical probability?
A. So there’s been a lot of new information presented in
these exhibits. Based on what’s been presented and the new
description of how her pain was experienced at the time of
[her] injury, I do believe that the neck was likely injured in the
workplace accident on September 4, 2020.
[¶17] On redirect, Dr. Woodruff conceded he had not seen any report of neck pain until
October 28, 2020. He acknowledged that Ms. Vandom’s interrogatory description was
inconsistent with her previous accounts of her pain at the time of her injury. Dr. Woodruff
also conceded these inconsistencies “raise[] doubt[s]” about the cause of injury. The
following questions and answers on redirect completed the deposition:
Q. I think there’s actually three possibilities here, that one,
the September 4, 2020 workplace injury caused an injury to
Ms. Vandom’s spine as well; two, that it did not cause a
cervical spine injury to her neck; three, you can’t state within
a reasonable degree of medical probability one way or the
other. Do you understand those possibilities?
A. I do.
Q. And which one would you choose?
A. I think there’s been too much back and forth and
inconsistencies, so I would have to say that I can’t state within
a reasonable degree of . . . [m]edical probability. Falling back
on the fact that she had not . . . described her symptoms the
way she did until 2021 as coming from the neck and rather
seemed to focus on the lower back as the problem, I would
have to say that within a reasonable degree of medical
probability that it was more likely that the motorcycle accident,
rather than the workplace accident, caused the injury . . . .
Q. So in order to make sure that I nail this down in my
mind, . . . you started before our deposition stating in medical
records that you thought that her neck was related to the
September 4, 2020, injury. . . .
A. Correct.
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Q. And then after I . . . did my direct examination of you in
this deposition, you changed your opinion and you said, no, I
don’t think the cervical spine is related to September 4, 2020;
is that correct?
A. Correct.
Q. Then [Ms. Vandom’s counsel] started cross-examining
you and then you switched back again; is that correct?
A. Correct.
Q. And now I’ve done redirect examination and we’ve
discussed some things further and put things in a perspective
about the medical records, and now you’ve changed your
opinion back, the cervical spine is not related to September 4,
2020, correct?
A. Correct.
Q. And all of your opinions were given within a reasonable
degree of medical probability, true?
A. Of the information that I had at the time of answering it,
yes.
[¶18] Ms. Vandom was the only witness who testified at the contested case hearing. Her
description of her pain at the time of the injury conformed to her description in her
interrogatory. She testified she had never had medical treatment for her neck prior to
September 4, 2020. She testified that she had consistently described her pain as shooting
up her arms and then down her back to the lumbar region, and that she had told her
supervisor about the additional pain but “it was something [Ms. Vandom] felt [her
supervisor] left out” when transcribing the written report.
[¶19] When asked why her neck was not mentioned in the emergency room records, she
first explained: “I think with that, when I consider my back, that literally runs from my
shoulders down. And then it’s—with the side of the body would be like lower back. So I
assumed that was like additional.” Later, she was asked: “It says [in the emergency room
record] your complaint was—at least initially was a bilateral hip pain work injury from
yesterday. Is that what you told them, a bilateral hip pain work injury from yesterday?”
Ms. Vandom responded, “No, sir.” “They actually asked me to explain what I was doing
and then the pain that I felt. And so the story that I had given you guys earlier, that’s
exactly what I had told them.”
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[¶20] Regarding her report of her pain to Dr. Woodruff on September 15, 2020, Ms.
Vandom testified she had reported neck pain and pain throughout her body even though it
was not written in his notes. Ms. Vandom agreed that when she saw Dr. Nieves, she
reported she had no neck pain and she did not mark the patient body diagram to indicate
pain in the neck and shoulder region.
[¶21] The OAH issued a decision on January 19, 2022. The decision confirmed Ms.
Vandom’s lumbar injury on September 4, 2020, but concluded Ms. Vandom failed to
demonstrate any medical evidence that her cervical spine, carpal tunnel, and cubital tunnel
injuries were causally related to this injury. Ms. Vandom appealed the decision to the
district court. The district court affirmed. Ms. Vandom then timely appealed to this Court.
STANDARD OF REVIEW
[¶22] We review the appeal of an administrative action “as if it had come directly from
the agency, giving no deference to the district court’s decision.” Mirich v. State ex rel. Bd.
of Trs. of Laramie Cnty. Sch. Dist. Two, 2021 WY 32, ¶ 15, 481 P.3d 627, 632 (Wyo. 2021)
(quoting Sweetwater Cnty. Sch. Dist. No. One v. Goetz, 2017 WY 91, ¶ 23, 399 P.3d 1231,
1235 (Wyo. 2017)). The Wyoming Administrative Procedure Act, § 16-3-114(c) governs
our review of the agency’s decision. 5
[¶23] “A workers’ compensation claimant must prove all essential elements of her claim
by a preponderance of the evidence.” Boylen v. State ex rel. Dep’t of Workforce Servs.,
Workers’ Comp. Div., 2022 WY 39, ¶ 8, 506 P.3d 765, 769 (Wyo. 2022) (citation omitted).
5
(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;
(B) Contrary to constitutional right, power, privilege or immunity;
(C) In excess of statutory jurisdiction, authority or limitations or
lacking statutory right;
(D) Without observance of procedure required by law; or
(E) Unsupported by substantial evidence in a case reviewed on the
record of an agency hearing provided by statute.
Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2021).
8
Where, as here, both parties submit evidence, we apply the
substantial evidence test to fact findings. And when reviewing
an agency’s decision that a claimant did not satisfy her burden
of proof,
we will decide whether there is substantial evidence to
support the agency’s decision to reject the evidence
offered by the burdened party by considering whether
that conclusion was contrary to the overwhelming
weight of the evidence in the record as a whole. 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 the agency could reasonably conclude as it did,
based on all the evidence before it.
Id. (internal citations omitted) (quoting Matter of Claim of Hood, 2016 WY 104, ¶ 14, 382
P.3d 772, 776 (Wyo. 2016)).
DISCUSSION
[¶24] Ms. Vandom claims the OAH lacked substantial evidence on which to base its
decision. She points to the evidence that she had never sought medical treatment for her
neck or numbness in her fingers prior to her workplace accident and that the hearing
examiner did not give enough consideration to Dr. Woodruff’s testimony that reports of
injuries may be focused on an area of immediate pain rather than describing pain to all
affected body parts. She also points to Dr. Woodruff’s diagnosis of “cervicalgia” on
September 15, 2020.
[¶25] In the absence of any medical testimony supporting her position, Ms. Vandom cites
to our cases recognizing that medical testimony is not always necessary to establish a
causal relationship to a workplace injury. These cases are inapposite because they require
facts showing a single injury or an “exceedingly obvious” causation from that injury.
Matter of Claim of Rogers v. Russell Constr. Co., Inc., 2016 WY 80, ¶ 16, 376 P.3d 1172,
1175 (Wyo. 2016) (“Except in exceedingly obvious cases, proof of causation requires
expert testimony to a reasonable degree of medical probability that a workplace event
materially contributed to the precipitation, aggravation, or acceleration of the bodily
damage for which compensation is sought—i.e., that it more probably than not had that
effect.” (citation omitted)); Matter of Lysne, 2018 WY 107, ¶¶ 16, 18, 426 P.3d 290, 295–
9
96 (Wyo. 2018) (“Proof of causation by a medical provider is not required in ‘exceedingly
obvious cases’ such as when a single incident is alleged to have caused the injury. . . . We
have required medical evidence to establish causation when a significant amount of time
elapses between the initial workplace injury and the claim, when there is an intervening
injury, when there is a preexisting condition, or when the claimant’s symptoms and medical
history are complex.”).
[¶26] Here, there were two incidents—the September 4 workplace injury and the
September 12 motorcycle accident—and Ms. Vandom’s medical records contain evidence
of a preexisting condition. Medical evidence was necessary to establish causation. In this
case, both medical experts testified that a causal relationship could not be established to a
reasonable medical probability between Ms. Vandom’s cervical complaints and her work
injury. There was substantial evidence supporting the hearing examiner’s decision that
Ms. Vandom’s cervical spine, carpal tunnel, and cubital tunnel injuries were not causally
related to her workplace injury.
[¶27] Ms. Vandom also claims the OAH decision is arbitrary and capricious. This claim
is inapplicable under these facts.
The arbitrary and capricious standard is available “as a ‘safety
net’ to catch agency action which prejudices a party’s
substantial rights or which may be contrary to the other
W.A.P.A. review standards yet is not easily categorized or fit
to any one particular standard.” In re Claim of Hood, 2016
WY 104, ¶ 15, 382 P.3d at 776 (quoting Dale [v. S & S
Builders, LLC], 2008 WY 84, ¶ 23, 188 P.3d [554, 561 (Wyo.
2008)]). “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.” Jacobs [v. State, ex rel., Wyo.
Workers’ Safety & Comp. Div.], 2013 WY 62, ¶ 9, 301 P.3d
[137, 141 (Wyo. 2013)]. Mr. Baker, however, does not argue
that the Commission failed to admit testimony or other
evidence that was clearly admissible. Mr. Baker’s arguments
rely exclusively upon record evidence. As a result, the
arbitrary and capricious standard is inapplicable. Id.; see also
Rogers, 2016 WY 80, ¶ 17, 376 P.3d at 1175.
Baker v. State ex rel. Dep’t of Workforce Servs., Workers’ Comp. Div., 2017 WY 60, ¶ 16,
395 P.3d 1095, 1101 (Wyo. 2017).
[¶28] Affirmed.
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