In the Matter of the Worker's Compensation Claim Of: Marty D. McIntosh v. State of Wyoming ex rel. Wyoming Workers' Safety and Compensation Division
2013 WY 135
| Wyo. | 2013Background
- McIntosh, a former roustabout, sustained a compensable steam-burn to his right foot in 2006 and received a 5% impairment rating after two skin grafts.
- He later reported persistent neuropathic pain, intermittent swelling that limited wearing work boots, and applied for permanent total disability (PTD) benefits under the odd-lot doctrine in 2010.
- Independent evaluations: a Functional Capacity Evaluation (FCE) found valid effort and ability up to medium/heavy work; IME physicians (Drs. MacGuire, Splitter, Kaplan) generally found McIntosh capable of at least light–medium work; his treating physician (Dr. Javaid) opined more restrictive limitations.
- A vocational report located at least one potentially suitable job and opined McIntosh could perform light–medium work; McIntosh had limited formal education and prior heavy-labor experience and had not actively searched for work after 2008.
- The Medical Commission panel denied PTD under the odd-lot doctrine, finding McIntosh failed to prove de facto unemployability (no reasonable job search and medical evidence supported ability to work); the district court affirmed and the Supreme Court of Wyoming affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commission adequately explained its decision | McIntosh: panel failed to address whether he made a prima facie showing to shift burden | Commission: findings and analysis sufficiently explain basis for denial | Held: Commission provided adequate findings and explanation |
| Whether substantial evidence supports finding McIntosh failed to make prima facie odd-lot showing | McIntosh: his pain, swelling, age, limited education, and vocational barriers made job search futile | Commission: objective FCE, IMEs, vocational report, and lack of job-search efforts support finding he was employable | Held: substantial evidence supports Commission’s conclusion that he did not prove de facto unemployability |
| Whether Commission erred in attributing symptoms to preexisting conditions (diabetes/venous insufficiency) | McIntosh: injury need not be primary cause; work injury significantly contributed to disability | Commission: evaluators considered preexisting conditions and still found capacity for work; Commission properly weighed that evidence | Held: No error — Commission reasonably accounted for preexisting conditions in its analysis |
| Whether Commission improperly relied on expert suggestions of vocational retraining or on its own observation of claimant | McIntosh: suggesting retraining imposes an obligation and panel’s observations were improper medical fact-finding | Commission: experts merely noted retraining as an option; observations were invited by claimant during hearing | Held: No reversible error — retraining comments were contextual; claimant invited panel inspection of his foot, so observations are not basis for reversal |
Key Cases Cited
- McMasters v. State ex rel. Wyoming Workers’ Safety & Compensation Division, 271 P.3d 422 (Wyo. 2012) (odd-lot doctrine and limits on requiring retraining)
- Stallman v. State ex rel. Wyo. Workers' Safety & Comp. Div., 297 P.3d 82 (Wyo. 2013) (odd-lot burden-shifting framework)
- Moss v. State ex rel. Wyo. Workers' Safety & Comp. Div., 232 P.3d 1 (Wyo. 2010) (odd-lot doctrine elements and fact-finding role of commission)
- Pickens v. In re, 134 P.3d 1231 (Wyo. 2006) (de facto unemployability explanation)
- Schepanovich v. U.S. Steel Corp., 669 P.2d 522 (Wyo. 1983) (deference to commission factfinding in workers’ comp)
- Decker v. State ex rel. Wyo. Med. Comm’n, 124 P.3d 686 (Wyo. 2005) (commission’s role in evaluating medical evidence and limits on sua sponte diagnoses)