In the Matter of the Worker's Compensation Claim Of: David Green v. State of Wyoming, Ex Rel., Department of Workforce Services, Workers' Safety and Compensation Division, 2013 WY 81

Background

In 2004 Green sustained a compensable L4-5 lumbar injury and underwent fusion surgery; in 2005 he accepted a 21% whole‑person permanent partial impairment (PPI) award after reaching maximum medical improvement (MMI).
In 2010 Green developed progressive symptoms attributable to adjacent‑level disease and had additional surgery (L3‑4 fusion and decompression); the Division paid medical and temporary total disability benefits for the 2010 surgery.
In 2011 independent examiners using the AMA Guides (6th ed.) rated Green’s whole‑person impairment at 7% (Dr. MacGuire) and 6% (Dr. Nieves).
The Division denied additional PPI because the new ratings were lower than the 21% already awarded; Green appealed to the Medical Commission, which upheld the denial, and the district court affirmed.
On appeal to the Wyoming Supreme Court Green argued the Commission erred as a matter of law (wrongly offsetting ratings calculated under different AMA Guide editions and for allegedly different body parts) and that the decision lacked substantial evidence and was arbitrary and capricious.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether ratings computed under different AMA Guide editions may be compared/offset	Green: Ratings from different editions cannot be compared or offset to reduce a prior award	Division: §27‑14‑405(g) requires use of the most recent edition at time of ascertainable loss; offsets are required to prevent double recovery	Court held different‑edition ratings may be compared/offset; statute mandates use of the most recent edition and prevents double recovery
Whether PPI for a later surgery to an adjacent level is a different body part entitling Green to a separate, non‑offset award	Green: The 2010 surgery affected a different body part, so a new award should not be offset by the 2005 award	Division: The 2011 ratings addressed the combined effect of the original injury and the later fusion—thus the same body part (lumbosacral spine) was rated	Court held the record shows both ratings addressed the same body part (lumbar spine); offset was proper
Whether the Commission’s denial lacked substantial evidence	Green: It is illogical that additional fusion could result in a lower impairment rating; Commission’s decision lacks support	Division: Independent medical examinations using AMA Guides produced lower ratings; burden rests on claimant to prove greater impairment	Court held the denial was supported by substantial evidence; Green failed to meet his burden to prove a higher impairment
Whether the Commission’s decision was arbitrary and capricious	Green: Decision arbitrary because surgery should have increased impairment	Division: Procedures and findings followed law and evidence; appropriate findings made	Court held decision was not arbitrary or capricious; procedural and evidentiary requirements satisfied

Key Cases Cited

Stallman v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 297 P.3d 82 (Wyo. 2013) (standard of review for appeals from administrative decisions)
Anderson v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 245 P.3d 263 (Wyo. 2010) (use of most recent AMA Guides at time of ascertainable loss; comparison of ratings across editions upheld)
Singer v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 248 P.3d 1155 (Wyo. 2011) (prevention of double recovery; combining/identifying impairments under AMA Guides)
Jacobs v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 301 P.3d 137 (Wyo. 2013) (substantial evidence standard in workers’ compensation appeals)
Kenyon v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 247 P.3d 845 (Wyo. 2011) (review standards; agency conclusions of law reviewed de novo)
Moss v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 232 P.3d 1 (Wyo. 2010) (agency conclusions of law standard)
Taylor v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 72 P.3d 799 (Wyo. 2003) (offsetting subsequent ratings by earlier awards to avoid double recovery)
Colvin v. State ex rel. Wyo. Workers’ Comp. Div., 681 P.2d 269 (Wyo. 1984) (precluding double recovery)
Himes v. Petro Eng’g & Constr., 61 P.3d 393 (Wyo. 2003) (burden on claimant to prove entitlement to higher PPI)