In the Matter of the Worker's Compensation Claim of Don Birch v. State of Wyoming ex rel. Wyoming Workers' Safety and Compensation Division
2014 WY 31
| Wyo. | 2014Background
- Don Birch, a Wyoming resident, traveled to Utah Spine and Disc Clinic for chiropractic care including Class IV cold laser therapy; he sought reimbursement of travel expenses from the Wyoming Division of Workers’ Compensation (Division).
- The Division denied reimbursement because (1) conventional chiropractic services Birch received (manual manipulation, mechanical traction) were available in Wyoming closer to his home, and (2) cold laser therapy was considered experimental and therefore non-compensable.
- Birch submitted promotional materials, scientific articles, and deposition testimony from his treating chiropractor (Dr. Luddington) to show laser therapy efficacy and to distinguish Class IV from Class III lasers; the Division submitted expert deposition (Dr. Staight) and advisory-panel views labeling therapeutic lasers experimental.
- The hearing examiner found Division evidence more persuasive: standard chiropractic care and Class III laser therapy were available in closer Wyoming locations; therapeutic laser use was experimental/investigational; travel reimbursement was denied. The district court affirmed; the Supreme Court affirmed.
- Statutory framework: Wyo. Stat. § 27-14-401(d) prefers obtaining medical care within Wyoming and authorizes travel reimbursement only to obtain the closest available care; Division rules bar payment for experimental services.
Issues
| Issue | Birch's Argument | Division's Argument | Held |
|---|---|---|---|
| Whether hearing examiner’s findings adequately supported (a) that cold laser therapy is experimental and non-compensable and (b) that comparable care was available in Wyoming closer to Birch’s home | Birch argued evidence (studies, FDA approval, treating chiropractor testimony, and Class IV superiority) showed lasers are established and distinct from Class III, so findings were insufficient | Division argued the record showed conflicting and insufficient scientific support, insurers and advisory panels treat lasers as experimental, and comparable services existed in Wyoming | Held: Findings were adequate and supported by substantial evidence; lasers are experimental for these purposes and closer comparable care existed in Wyoming |
| Whether substantial evidence supported the hearing examiner’s conclusions | Birch contended the submitted studies and evidence suffice as substantial evidence that laser therapy is effective and not experimental | Division argued independent reviews and literature show mixed or inadequate evidence; expert testimony favored finding experimental | Held: Substantial evidence supported the examiner; the examiner properly credited Division’s expert over Birch’s treating chiropractor |
| Whether FDA “approval” required treating laser therapy as non-experimental | Birch argued FDA approval of the device demonstrated safety/effectiveness and negated experimental label | Division and record showed FDA marketing determination was as-substantial-equivalent to an infrared heat lamp and did not establish effectiveness for claimed photochemical mechanisms | Held: FDA marketing clearance did not compel finding of effectiveness; it does not preclude experimental classification |
| Whether examiner should have prorated reimbursement to amount that would have been incurred if Birch had traveled to Rock Springs for equivalent services | Birch requested de novo proration under § 27-14-401(d) to cover the hypothetical Rock Springs trip portion | Division argued statute reimburses travel actually incurred to obtain closest available care; cannot pay for travel not taken | Held: Statute unambiguous—reimbursement limited to travel actually undertaken to obtain covered care; no proration for hypothetical travel to closer provider |
Key Cases Cited
- Stallman v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 297 P.3d 82 (Wyo. 2013) (standards for appellate review of agency decisions)
- Leavitt v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 307 P.3d 835 (Wyo. 2013) (required scope and sufficiency of administrative findings; substantial evidence review)
- Jacobs v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 301 P.3d 137 (Wyo. 2013) (definition and application of substantial evidence standard)
- Tarraferro v. State ex rel. Wyoming Medical Comm’n, 123 P.3d 912 (Wyo. 2005) (discussion and definition of "experimental" medical procedures)
- Kenyon v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 247 P.3d 845 (Wyo. 2011) (agency findings must permit review to determine if supported by substantial evidence)