Worker's Compensation Claim of Howe v. State ex rel. Department of Workforce Services, Workers' Compensation Division
2017 WY 109
| Wyo. | 2017Background
- In June 2011 Dennis Howe was exposed for about a minute to chlorine when a chlorinator tube blew while he was performing pool maintenance; he sought emergency care the next day for shortness of breath and received oxygen and nebulizer treatments.
- Follow-up care through 2011–2013 included primary care visits, pulmonary evaluation, multiple spirometry tests, a high-resolution chest CT (showing no acute cardiopulmonary abnormality), and diagnoses including restrictive physiology, possible obstructive disease, and suspected reactive airway dysfunction syndrome (RADS); obesity and possible sleep apnea were repeatedly noted as contributing factors.
- Conflicting medical opinions: Dr. Brown (IME) rated a 14% whole‑body impairment attributable to the chlorine exposure; Dr. Repsher (Division consultant) found no objective evidence of pulmonary injury and attributed symptoms to obesity/lifestyle; Drs. Brigham and Demeter (third reviewers) concluded there was no ratable impairment related to the exposure (0%).
- The Division issued a final determination denying PPI benefits based on the 0% ratings; Howe objected, a Medical Commission hearing was held, and the Commission credited Drs. Repsher, Brigham, and Demeter over Dr. Brown and denied increased PPI.
- The district court affirmed the Commission, and Howe appealed to the Wyoming Supreme Court contesting (1) sufficiency of the evidence to deny PPI and (2) that the Commission’s decision was arbitrary and capricious.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether substantial evidence supports the Commission’s finding that Howe suffered no permanent impairment from the chlorine exposure | Howe: medical opinions (esp. Dr. Brown) and his symptoms support a 14% PPI attributable to the exposure; Commission ignored or misstated facts and pre/post‑injury condition | Division/Commission: credible experts (Repsher, Brigham, Demeter) found testing unreliable for RADS and attributed impairment to obesity/sleep apnea, not chlorine; Commission properly weighed credibility | Affirmed: substantial evidence supports the Commission’s conclusion of 0% impairment related to the exposure; appellate court will not reweigh evidence |
| Whether the Commission’s decision was arbitrary and capricious | Howe: Commission equivocated on facts, failed to properly consider pre‑injury condition and conflicting expert reports, making its decision arbitrary | Division: Commission provided reasoned findings, addressed credibility and testing deficiencies, and applied applicable standards | Affirmed: decision was not arbitrary and capricious; Commission provided adequate findings and legal reasoning |
Key Cases Cited
- Price v. State ex rel. Dep’t of Workforce Servs., Workers’ Comp. Div., 388 P.3d 786 (Wyo. 2017) (standard of appellate review of agency fact/law determinations)
- Rodgers v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 135 P.3d 568 (Wyo. 2006) (definition and application of substantial evidence review)
- Green v. State ex rel. Dep’t of Workforce Servs., Workers’ Safety & Comp. Div., 304 P.3d 941 (Wyo. 2013) (claimant bears burden to prove entitlement to higher PPI rating)
- Faulkner v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 152 P.3d 394 (Wyo. 2007) (apportionment and rating when preexisting impairment is aggravated by a work injury)
- Chavez v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 204 P.3d 967 (Wyo. 2009) (agency fact‑finding must be supported by record evidence)
- Watkins v. State ex rel. Wyo. Med. Comm’n, 250 P.3d 1082 (Wyo. 2011) (courts may scrutinize reliance on flawed diagnostic testing in impairment determinations)