*1 WY 156 CAMILLERI, Appellant Christina
(Petitioner),
v. rel., Wyoming, ex WYOMING STATE AND COMPEN SAFETY WORKERS' (Respon DIVISION, Appellee SATION dent). No. S-09-0242. Wyoming. Supreme Court 2, 2010. Dec. *2 (Com Hearing
Medical Commission Panel mission). The Commission determined that Camilleri was not entitled to further benefits (after 22, 2005), June that she 22, 2005, ascertainable loss as of June attorney relieved from obli gation her, represent further and that the matter was remanded to the Workers' Com (Division) pensation carry Division out the mandates of the Commission's decision. We will affirm.
ISSUES
[¶2] Camilleri states this issue: Whether there is substantial evidence to the Commission's decision to re- ject [Camilleri's] evidence. rephrases The Division perceives what it greater the issues in detail: I. Hearing Was the Panel's decision de- nying ongoing medical treatment to [Cam- illeri] and determination that [she] was at ascertainable loss or maximum medical im- provement 22, 2005, supported June substantial evidence?
II. Hearing Was the Panel's decision de- nying ongoing medical treatment to [Cam- illeri] determination that [she] was at ascertainable loss or maximum medical im- provement arbitrary June ca- pricious, or otherwise not in accordance Wyoming law? Prefatory Matter Representing Appellant: Donna D. Do- monkos, Cheyenne, Wyoming. begin [¶3] We will our discussion ex plaining to the Division and the Medical Representing Appellee: Bruce A. Salz Commission, as well as readership our burg, Wyoming Attorney General; John W. general, petitions for agency review of Renneisen, Deputy Attorney General; James governed by decisions are Causey, W.R.A.P. 12. The Michael Senior Attorney Assistant important part most process of this review General; Hanna, and Kristen J. Senior As- the record that agency level, is created at the Attorney sistant General. because both the district court sitting as an KITE, C.J., GOLDEN, HILL, Before appeals, intermediate court of and this Court *, BURKE, VOIGT and resort, JJ. as the court of rely last almost entire ly on the content of that resolving record in HILL, Justice. petition issues raised for review of agency provides: action. Rule 12.07 Appellant, Christina (Camilleri), (a) seeks review of the district days Within 60 after the service of affirming Fact, court's order "Findings petition, or within the time allowed Conclusions of Law court, and Order" issued reviewing agency shall * expedited Chief Justice at time of conference. volumes). Moreover, al- falling out of original reviewing court the
transmit entire record common sense copy of the rely primarily upon though we or a certified advice, "securely fastened" part sepa- and a under review proceedings something page marked for the made of includes a cover of transmittal rate letter *3 judge judges paper. For so ordinary typing the or than personal attention sturdier papers remember, The record has reviewing court. can this long the Court as this by appellate backs," the any court to the but transmitted of "red the use entailed fastened, securely in an agency be preparing shall rec- sturdy will do. Those cover manner, more volumes orderly or one rule the also take note ords should " pages per consisting than 250 of no more more contain "no that each volume requires volume, and with pages numbered with not, than break- pages. More often than 250 bearing the case page the title of a cover exactly may sepa- page 250 ing a volume designation containing Trans- the way in a or documents rate a document Record, by complete a followed mitted sense, in case the vol- not make which does agency papers. The shall index of all page 250 come might well before ume break review- copies the index to the provide (not record must pages). 250 more than parties. ing to the Concur- court and possible. complete as an index that is as have record, transmitting the rently with case, parties' disclosure each of the In this transmittal notice of the agency shall serve In- numerous exhibits. contained statements parties. on all showing where each exhib- of the index stead (b) in a contested case shall The record index, simply the index began it 16- required W.S. of the matter consist altogether so Camilleri's lumped them 3-107(0 ), Wyoming Administrative Proce- pages (they spread over 256 exhibits are any matter re- Act. To the extent dures single, in a have been contained might well preserved by agency quired not was courtesy to the volume and as separate record, may the court take there is no have been each exhibit should courts in all that matter. The record evidence on tabbed-exceeding to exceed 250 the not appropriate of the cases shall consist other accept- an by pages would have been pages reflecting agency agency documents rule). Almost general able adherence By stipulation all action and its basis. separate always, transcript should be the ree- proceedings, the review parties to Here, found at transcript volume. Any party unrea- may shortened. ord be (Volume III ran III pages 774-947 of Volume to limit the sonably refusing stipulate 586-947). page may disciplined accordance record be reviewing court Rule 1.08. The dem findings in this case subsequent additions or require permit has the Medical Commission onstrate A record re- to the record. corrections findings requirement taken to heart our agency a court manded however, detailed; refer complete and may be recalled purpose reason appeal on the contents of the record ences to court, necessary, upon remanding record, but to pages were not made [Emphasis added.] own motion. indexed, and the that were not documents 16-8-107(0) § Ann. Wyo. Stat. Also see paginated as it accu agency was not record 2009). (r) (LexisNexis through expect that would mulated. In the future we courts and the clerks of district both case, I of the record In this Volume [¥4] Court, accept to decline clerk of proceedings in the consisted of the appeal on until it is assembled appeal on record (intermediate appeals), court of district court governing rule. It is with the accordance gov- required it was in the form agencies, in the first upon the incumbent agency The record from the erning rule. record, instance, but the proper (Volumes to submit II and III two consisted of volumes to look at responsibility Court). parties also have II contained 585 Volume in an and see that once filed securely the record they pages, and were not fastened (the acceptable form. ending pages were pages initial and the AND FACTS PROCEEDINGS displayed ceived that Camilleri a sense of pain that was not consistent with her claimed 1, 2004, September On Camilleri injury. Eventually she was referred to Dr. on-the-job telephonically reported an in first Randolph, treating who was still her as of the jury supervisor. According to her to Camil- hearing. opted date of the She for conserva leri, injury occurred on that date at about tive, treatment, non-invasive and Dr. Ran noon, place employment, at her the Wor- dolph respected her concerns and decisions (Center). land Center A written re Senior regard, especially early in that because 16, 2004, port, September prepared on Dr. warned that invasive treatment Safety submitted to the Workers' and Com worsen, lessen, pain. could (Division) pensation Division supervisor September and her *4 [¶10] received benefits from 20, September and it was received there on 22, injury the of By date until June 2005. 2004. 22, 2005, letter dated June the Division in employed Camilleri was at the Cen- [T7] approve formed Camilleri that it would not nurse, practical ter as a licensed and her co- 22, payment of benefits By after June (Bauer), employee Benita Bauer was the 29, 2005, letter dated June Camilleri's attor nutshell, cook there. In a Camilleri claimed ney appointed asked to be to handle her her, perhaps that Bauer ran into deliberate- petition client's for review of that decision. left-shoulder, ly, left-shoulder to in a narrow made, Apparently appointment hallway workplace. Although at their Camil- represented Camilleri has continued to by infirmities, predisposing bodily leri had some throughout process. counsel this In that re by asserted the shoulder blow she delivered quest, Camilleri indicated that the matter enough Bauer was forceful to cause the im- assigned should be to the Medical Commis- gion. pain of to her left mediate onset shoulder and pre-existing problems her neck. Her health July In a letter [T11] dated any problem did not include with her left analyst claims for the Division referred this problems shoulder. with Camilleri's Hearings case the Office of Administrative hearing neck had resolved the time of (OAH) pursuant Wyo. § Stat. Ann. 27-14- hearing an were not issue at the into this 601(k)(v) (LexisNexis 2009) provides: which any injury matter and have oc- Payment § 27-14-601. or denial of curred to her neck is not an issue in this by division; notice; objections; claim However, appeal. her shoulder continued to claims; filing review and settlement of great pain, cause her and so far as the record fee; preauthorization hospitalization of shows, that continues. surgery. hearing, At the Camilleri's claims (a) Upon receipt, the division shall re- temporary were that she was entitled to total injury reports the initial view determine disability payments period the for from June if injury resulting injury the or death through July during which compensable jurisdiction and within the time she was unable to work because of the subsequent this act. No claim for com- problems continued she had with her shoul- pensation approved under this act shall be early July der. Camilleri found injury if the division determines the employment suitable that was within her compensable death is and under physical capabilities Wyoming Boys jurisdiction if employer of this act or School near Worland. She also claimed she injury report states on his that the surgical was entitled to benefits for treat- compensable, is not until a determination ment that had been recommended is rendered the division. The division M.D., attending physician, Randolph, James provide shall notice of its determination to orthopedic surgeon. employer employee, and the claimant. Throughout early of her months treatment, providers Camilleri's medical care (d) Upon receipt impair-
were unable to ascertain the cause of the of a claim for ment, pain per disability in her shoulder and most of them or death un- benefits filed 5G (k)(i) section, 27-14-501(e) the division graph of this 27-14-403(g) or
der W.S. investigate the matter and issue (£) result- shall injury or death initial and if the (45) forty-five compensable within final determination injury is determined ing from act, issuing request; jurisdiction days after and within injured if em- determine division shall (ii) a final determination is- Notice of eligible are for dependents ployee or his this subsec- by the division under sued deny approve or and shall benefits of reasons include a statement tion shall If a this act. with in accordance claim hearing; right to a and notice division shall deter- approved, the claim is compen- award for amount of the mine the (iv) may request Any party interested W.S. 27-14-4083 in accordance with sation hearing examiner before 27-14-408, appli- if through 27-14-406 of the division final determination provide notice The division shall cable. hearing request filing written under this subsection any determination (15) days after within fifteen the division and the claimant. employer, employee final determi- the date the notice of the act, (e) the divi- In accordance with If mailed the division. nation was regulation establish by rule and shall sion a final the division has not rendered *5 for the review and necessary procedures (60) days sixty fol- within determination in- compensability of an of the settlement filed, any lowing the claim was the date injury resulting from jury or death may hearing party request a interested through act inter- filed under this claims manner hearing a examiner before employees, employers views by If the prescribed paragraph. through review of personnel care health hearing request for is sent written Nothing in this act shall reports. written mail, by registered division certified or employer or division prohibit receipt request- postage prepaid, return up thou- reaching a to two settlement ed, mailing the time proof of such within ($2,500.00) under hundred dollars sand five by a re- provided this subsection with (1) one case without this subsection by agent the state of ceipt signed an compensability or that the an admission timely presumed to be Wyoming shall be work related. division; filing request with the of the (v) receipt request Upon of a act claim for benefits under this (g) No hearing, the division shall immediate- solely failure denied based on the shall be ly provide request to notice of complied employer to have with the hearing authority appropriate as de- act. requirements of this W.S,. 27-14-616; pursuant to termined (k) by pur- the division Determinations (vi) timely request If written for hear- 27-14-605 to this section W.S. suant filed, ing is not the final determination following: in accordance with the shall be by pursuant to this subsec- the division (i) initial review of entitlement The subject further ad- tion shall not be (a) and pursuant to subsections benefits review, judicial provided ministrative (e) made of this section shall be that, discretion, in its own however (15) days after the division within fifteen may, benefits have division whenever injury report or claim is filed. date the worker, a rede- to a make been denied review, Following initial the division (1) year after the termination within one or if a issue a final determination shall regard- original an determination date of cannot be made final determination party has filed less of whether or not upon information at based available (iv) paragraph timely appeal pursuant time, request the division issue [Emphasis added.] of this subsection. necessary; for additional information as (Lex § 27-14-616
(i) Wyo. Stat. Aun. request of a Following issuance 2009) provides: para- isNexis information under for additional commission; § ability by providers 27-14-616. Medical health care and set- hearing panels; creation; membership; ting injuries types forth the for which duties; rulemaking. particular providers may health care certify temporary disability pursu- total (a) medical commission is created to 27-14-404(g); ant to W.S. (11) providers of eleven health care consist appointed by governor as follows: (ii) division, To upon advise the re- (1) (7) physicians ap- Seven licensed quest, on the usefulness of medical cost pointed than from list of not less four- measures; containment (14) teen nominees submitted (iv) (8) To furnish three members of Wyoming Society; Medical the commission to serve as a medical (H) (4) providers ap- Four health care hearing panel to hear cases referred for pointed eight from a list of not less than hearing. The division shall refer med- (8) developed nominees and submitted ically contested cases to the commis- by appropriate provider health care hearing by hearing sion for a medical groups selected the director. panel. The decision to refer a contest- (b) (1) One member shall be elected ed case to the office of administrative chairman and commission members as one hearings hearing panel or a medical (1) as vice-chairman. The division shall established under section shall designate employee as execu- serve subject not be to further administra- secretary tive of the commission or con- Following tive review. referral provide tract with an individual to execu- division, examiner or med- secretary tive services to the commission. hearing panel jurisdic- ical shall have governor may appoint no than more tion to hear and decide all issues re- (11) providers eleven additional health care *6 objection lated to the written notice of as associate members of the commission pursuant 27-14-601(k). filed to WS. serving whose function is limited to hearing Different panels medical hearing of members individual medical membership may different be selected to members, panels. Except for initial the cases, panel may hear different but a terms of commission members and associ- (1) hear more than one case. Individual (8) years. ate members shall be three hearing panels medical shall be selected (8) Three of the initial members commis- secretary the executive under the (8) sion and three initial associate mem- supervision guidance of chair- the (1) appointed year bers shall be to a one man of the medical commission. At (4) term and four initial commission mem- (1) panel least one member of each shall (4) bers and four initial associate members (1) physician. a be One shall member (2) appointed year shall be to a two term. designated by secretary the executive to The duties of the commission shall be: panel. serve as chairman of the When (i) promulgate regula- To rules and hearing medically case, contested tions, approval with the of the director panel hearing shall serve as the examin- department, declaring particular of the jurisdiction er and shall have exclusive medical, hospital or other health care to make the final administrative deter- procedures acceptable either or not nee- validity mination of the and amount of essary injuries in the treatment of compensation payable under this act.
particular injuries classes of and there- For cases referred to the medical com- compensable compen- fore either or not mission hearings as small claims under expanding sable under this act or 27-14-602(b), W.S. hearing the medical limiting compensability pro- of such (1) panel may physician consist of one act; cedures under this hearing who shall serve as the examiner (ii) promulgate regula- To jurisdiction rules and and shall have exclusive tions, approval with the of the director make the final administrative determina- department, establishing validity criteria tion of the and amount of com- temporary pensation of payable certification total dis- under this act. D58 Thus, simplifying the in the interests of
(c)
the commission
members of
identifying the correct standard
serving
process of
panels when
hearing
medical
of
bringing
approach
our
closer
review and
liability and shall be
immune from
shall be
standards, we
if
attorney general
sued
by the
original use of the two
to the
defended
substantial evi
legal
that henceforth the
hold
against
loss
indemnified
applied
time we
will be
state em-
dence standard
manner as
in the same
action
evidentiary ruling.
When
review
ployees.
agen
party prevailed before
burdened
(d)
establish
fee
division shall
cy,
if substantial evi
we will determine
compensation of members
schedule for
support
finding for that
dence exists
and medical
commission
of the medical
considering
there is rele
party by
whether
professional ser-
their
hearing panels for
record which a
vant
the entire
evidence
compen-
paid from the worker's
vices to be
the Medical
2009)
medical
ed case
case,
the medical
sation account.
The advice shall
ability;
disfigurement;
become
[Emphasis added.]
§
medically
(e)
which
Stat.
27-14-405.
Upon agreement
In an order entered
the OAH
part
under this
panel or
Ann.
benefits;
issues
provides:
hearing
Commission
contested
of the record
§
commission
*7
disputed ratings.
27-14-405(m) (LexisNexis
Permanent
in the contested
be in
assigned
examiner
schedule;
chapter
in accordance with
seek
case to
writing and shall
all
may
the advice of
in a contest-
of the case.
parties
partial
permanent
September
a medical
matter
specified
transfer
case.
to a
dis-
whelming
we will decide
Public Serv. Comm'n of
tial evidence as
Spiegel,
party failed
ing weight of the evidence
the course of its decision
reasonable
conclusion was
evidence to
examiner
a whole.
La
1976)] (discussing
dened
reject
agency
agency's
ramie
860-61
party
weight
determines
See, Wyo.
mind
disregards
to meet his burden of
(Wyo.1994); [Board
by considering whether
evidence offered
P.2d
conclusions.
whether there is substantial
County
contrary
might
"contrary to the over
[1161]
definition of substan
Consumer
certain
Sch. Dist. No.
accept
evidence").
ageney's
making process,
Wyo., 882 P.2d
in the
at 1178
If the
the burdened
evidence and
overwhelm
support
record as
Group v.
the bur
decision
hearing
[(Wyo.
proof,
Trustees,
If, in
1 v.]
doing so based
explains its reasons
for
(m)
physical impair-
percentage
If the
eredibility or other
upon determinations of
shall obtain a
disputed, the division
ment is
record,
its decision
factors contained
conflict,
ratings
if the
opinion
second
and
under
the substantial
will be sustainable
impairment
physical
shall determine
Importantly, our review
evidence test.
initial and
upon consideration of the
award
not on wheth
any particular
turns
decision
Any objection to a final
opinion.
second
outcome,
agree with the
but on
er we
this subsection
pursuant
to
determination
reasonably
ageney
con
whether the
could
to the medical commis-
shall be referred
did,
evidence
it
based on all the
clude as
hearing by
hearing panel
a medical
sion
before it.
pursuant
to
hearing examiner
acting as
arbitrary
capricious standard
and
27-14-616.
W.S.
agency
"'safety
to catch
remains a
net'
prejudices
party's
substan
action which
DISCUSSION
contrary rights
tial
or which
be
Review
Standard of
yet is not
review standards
other W.A.P.A.
any
particu
fit
one
easily categorized or
to
applicable standard of
[¥T14]
State ex rel.
[v.
lar standard." Newman
in Dale v. S & S
review is that set out
Builders, LLC,
P.3d
561
(Wyo.2008),
2008 WY
and
84, ¶¶ 22-25,
we set it out
188
Div.],
Workers'
[2001
WY
Safety and
91]
¶ 23,
49 P.3d
Compensation
[163]
explained
Although we
[(Wyo.2002)].
verbatim below:
"safety
application
net"
of the arbi-
explains
dence and
its
doing
reasons for
so
Newman,
trary
capricious
upon
and
standard
based
credibility
determinations of
slightly
record,
will
it
other
we
refine
here to more
factors contained in the
carefully delineate that
it is not
decision will be
meant to
sustainable under the sub-
evidentiary
stantial
apply
questions.
to true
In-
evidence test.
stead,
arbitrary
capricious
and
stan- Dale, ¶ 22,
with some of the other standards. For reject the evidence offered the burdened example, against great decision party, by considering whether that conclu- weight might properly the evidence contrary sion was overwhelming arbitrary called capricious everyday weight of the evidence in the record as a However, language. "arbitrary" the words whole. "capricious" must be understood in Although mention is made of the context as terms of art under the adminis- "arbitrary capricious" standard trative review statute and should not be brief, Division's rely Camilleri did not on that employed specifi- in areas where the more aspect review, of the Dale standard of cally provide defined standards sufficient we discern no play. reason to call it into relief. why It is not clear this case was summary, In while we believe Newman reassigned from the OAH to the Medical analytically supported by correct and requested Commission. Camilleri that her authorities, application relevant of the dif- assigned Commission, case be to the Medical evidentiary ferent standards of review to but was the Division's initial decision to proved confusing argu- matters and led to assign justification it to OAH. The for the Thus, ably inconsistent decisions. we take change upon being was based dispute there opportunity diverge somewhat from physical about impairment rating, Camilleri's simplify process Newman in order but the record does not bear out that determining proper standard of re- such conflict existed. So far as the record litigants view for both courts. shows, treating none of physicians Camilleri's *8 future, apply we will the substantial evi- impairment had rating. evaluated her for an anytime reviewing dence standard we are Nonetheless, objection without from Camil- evidentiary an issue. leri, the Division sent her to see Paul E. ageney's We review an conclusions of law de Ruttle, performed independent M.D. He an novo, legal and we will affirm such conclu (Orthopedic medical evaluation Eval- Medical only they sions if are in with accordance law. uation) request at the Division's ¶Dale, 26, 188P.3d at 561-62. report was received the Division on June case, In this we are called [T15] In report 2005. Dr. Ruttle noted upon apply two of the standards set out in 3%, impairment rating Camilleri's is that she First, many Dale. the Commission made improvement, had reached maximum medical analysis determinations in and he recommended that Camilleri "under- regard apply the evidence and in that we will go psychiatric evaluation on a nonindustrial aspect of the Dale standard: spent basis." Dr. Ruttle 45 minutes If, in making reviewing the course of its decision Camilleri's voluminous medical records, process, agency disregards certain evi- 45 minutes in a face-to-face evalua- report which a reasonable 80 minutes record dence the entire patient, tion of M.D., Ford, the eredibili- accept was might J. mind Michael preparation. made. ty determinations His IME on Camilleri. do an also asked to Sep- on by the Division report was received address the Commission's We will [¶23] hour review- spent one He 2005. they tember order as credibility findings in the same records, with Camil- minutes ing medical find in the Commission's memorialized were written prepare the leri, and 40 minutes noting that the Commis begin by ings. We im- that her Ford concluded Dr. treatment of Camil- evaluation. on-going sion considered rating was zero. dispute at pairment as an issue in spine cervical lerf's it included her shoulder hearing, and that orthopedic primary Camilleri's [¶19] (as shown as an issue only parenthetically nor provide, not did Dr. physician, sentence): the ... Claimant's "Whether rat impairment provide, he asked to was spine [and her cervical ongoing treatment for 22, 2005, above, Cam- on June ing. As noted injury." At to her work is related shoulder] claims her further was informed illeri hearing, conceded Camilleri the outset wouldbe denied. spine had with her cervical the issues summa medical records All of the [¶201 resolved, only the condition and it was been in the record on are contained rized above issue at that was of her shoulder addition, hear a video-conference appeal. dispute is hearing. The second issue 16, 2007, at which May ing was held physi percentage Camilleri's whether testified, did primary physician Camilleri's disputed. If it was dis impairment was cal husband, Benita Camilleri, Camilleri's was to obtain second puted, the Division alleged to Bauer, who the co-worker with the rating if that conflicted opinion and shoulder, against that of impacted her have physician, then it provided one Camilleri's injure Camilleri, workplace, so as to at their to determine purpose the Commission's her left shoulder. upon award consid physical impairment opinion. and second of the initial eration issued The Commission (LexisNexis 27-14-405(m) § Ann. Stat. July letter on lengthy decision 2009). case, treating phy In this Camilleri's in the petition for review filed a he asked to provide, nor was sician did letter issued court and decision district rating patient. impairment for his provide, an affirmed the district court June Indeed, two "second- Division obtained al we While decision of Commission. Dr. Ran wholly disregarded opinions" and the district ways appreciate utilize the medical ree- testimony and all of dolph's decision, afford no defer appellate we court's by him the Division. Both provided ords Instead, to the district court's decision. ence Dr. Ran "second-opinions" conflicted if it came agency's decision as we review the patient. of his dolph's assessment Dale, ¶ 8, 188 P.3d directly agency. from the at 557. findings it is In the Commission's sought a forfei that the Division also noted Credibility of paid Witnesses on Camilleri's behalf ture of benefits However, surgery. declined because she challenge to the [122] Camilleri's necessary so petition, did not file the Division is two-pronged. It decision Commission's by the not considered Com that claim was contrary to its decision is contention *9 § Ann 27-14-407 Stat. mission. See in weight the evidence overwhelming of the 2009). (LexisNexis great importance to before us. Of the record in find noted The Commission that the argument, is her contention that (it a fill-in-the filled in ings report that the all wit the credited Commission form) by supervisor stated Division, Camilleri's blanks but found Camil- for the nesses into employee walked only that "Another pretty much across leri's witnesses were shoulder." hitting [left] her employee, analyzing such eredi- credible. board not herself, she apply the "substan bility determinations we report written Camilleri In a "Bert in these words: e., reported the incident test, evi- is there relevant tial evidence" dysfunctional, towards me and slammed her espe Bauer walked Center as and this was body my shoulder and into cially [left] [left side} true respect with to Bauer. Camilleri dispute brought did not the evidence shoulder and shoved me." After re forward [left] "injury viewing report and other Camilleri's by the Division that she had been treated documents," 22, 2004, on October the Divi past variety on-the-jobs for a inju Opening sion issued a "Final Determination ries/conditions, although none of these were and Camilleri received benefits until Case" associated with her left shoulder. Camilleri fully late June of 2005 as noted more above. dispute did not that she suffered from anxi inquire The Division continued to about Cam- ety/depression. undisputed It is also progress physical therapy illeri's after variety Camilleri underwent a pro of medical 22, June 2005. cedures and saw several doctors in the 1, 2004, September months prior after and given In a sworn statement to the 16, May Department September Worland Police on on It was not 28, 2004, Camilleri elaborated on the event of until Camilleri saw Dr.
September pattern and described a pain source of diagnosed by her was means part of harassment on the of Bauer toward MRI, although of an accuracy of that Through attorney, her. her Camilleri also diagnosis point is also a critical in this case. sought press Compliance a claim with the A radiologist identified a labrum tear Officer, Department Employment, Labor Camilleri's shoulder and Dr. Randolph con Standards, here, over the incident at issue as curred with radiologist's reading employment well as the fact that her with the MRL Septem- Center was terminated at the end of [¶28] The record reveals that Camilleri ber 2004. On March the new Exec- reported an incident wherein Bauer inten utive Director of the Center forwarded some tionally, or at least pausing without to ac additional informal information from other knowledge so, that she had done hit Cam- Center, Division, employees to the illeri her left shoulder. Bauer self- story which tended to discredit Camilleri's reported that she is 59" tall injured weighs back September on course, pounds, although significance 2004. Of it is of she was described some both Camilleri complaints Wallingford being note that Camilleri never made important larger about her back. It is also to note somewhat than that. Camilleri was that the record as a whole height reveals that there of about weighed ap same proximately pounds. "eye-witnesses" 170-80 As noted were no to the event Camil- described, report leri and the referred to above, "eye-witnesses there were no immediately very evidentiary above has little (Le., reported seeing event no one the inci value, given largely that this case turned described). dent that Camilleri Bauer re affidavits, depositions, testimony, sworn ported that no such incident occurred and other documents that can be said to have all, if there was such an encounter at self-authenticating (eg., some value doctor's day cecurred reports before Camilleri notes, MRI's, etc.). tests, medical occurring, it as and that she did no more said that Bauer did butt her with her shoul- than brush elbows with Camilleri at der, it, and Bauer denied but no one else Wallingford time. described Bauer as an purported to have seen actual event "angry" employee and difficult and that question. get along she and Camilleri did not at all. animosity Wallingford reported appears
[¶27] The record to bear out based the fact that Bauer did not like job that Camillert's at the Senior Center was employees expiration eliminated because of the of a have her kitchen and employees prohibited most were However, be grant position. that funded her we juncture hour, note at this that both Camilleri and ing during except there lunch employee for Camilleri and one other who serving Executive Director who was *10 here, go through get the time of the incident at issue de had to the kitchen to to scribed the work environment of the Senior their offices. However, in the final longer at no issue. paid especially Commission [¶29] testimony Wallingford's balance, to that the Commission's
close attention we conclude testimony several finding In one of that much of Camilleri's in detail. it out and set credibility, the Commission supported substantial findings as to not eredible is was testimony as "want Wallingford's described evidence. finding by the that as a ing." We construe Ran of Dr. A close examination [¶31] Wall- they did not believe that Commission things of testimony reveals several dolph's find testimony. for that The basis ingford's First, he is in this case. great significance Cam- chose to believe Wallingford that ing is meaningful a only spent who physician (over Bauer), though no one else even illeri Second, he amount of time with Camilleri. incident, simply infury-causing witnessed carefully only physician who exam was the were Wallingford and Camilleri because (MRI's, objective evidence medical ined regard that in this our We note friends. ete.). Third, only physician who he is the "eye to be require there precedents do subjective diligently to Camilleri's listened injuries that the and workplace to witnesses" hearing testimony at complaints. His to es employee will suffice acknowledgedthat Camil- guarded. He injury This eredi- that an occurred. tablish accurately diag not be condition could leri's appears to have been bility determination in the exami with clinical observations nosed speculation idle nothing more than based on room, diagnosed it be with nation nor could lis because Wallingford was motivated to that can find certainty We with the latest and most ad was a "friend" of Camilleri. even she diagnostic procedures. He vanced external Wallingford did hint in the record that no not be able to state conceded he would honestly forthright than anything other certainty had suffered a shoul had with with that she the difficulties she ly describe Bauer; injury procedure until an invasive was not difficult der that Camilleri reported (one what employee; and that Camilleri finally completed which Camilleri reluctantly, undergo quite Camilleri's because agreed had done and she believed to Bauer credibility procedures if report. We conclude wanted to avoid invasive she by any supported sub is not that Camilleri's possible). determination He also conceded propor evidence. out reports pain appeared stantial to be appeared to have suf tion to the she goes on to find The Commission shoulder, although Randolph Dr. fered to her a credible witness was not Camilleri rare, widely recognized diagnose a but did findings Although the Commission's either. may have contributed to pain syndrome that reporting respect to Camilleri's However, we are un condition. Camilleri's itself, subjec as her injurious incident as well credit, slightest degree, in the able to even problems that reports of the medical tive findings about Dr. Ran the Commission's followed, tenuous, are somewhat some dolph's credibility. The Commission con support finding documentary evidence does Randolph that Dr. had not credited cluded testimony and significant portions of her who exam opinions physicians of other injury/pain were not credible. reports of Ford) (Drs. Ruttle ined Camilleri authorities/agencies, as well reports Her may "Dr. reached this conclusion: notable, in examining physicians, were as a financial stake in the outcome of also have they greatly report part, varied because per treatment given case the extensive Although time to time. report and from of 2005 and for which he formed after June body of evidence to significant there was a much paid." There is not so not be tes support finding Camilleri's basic finding such a of evidence to seintilla level timony reports lacked a sufficient give would voice to and that this Commission credibility, we also note that the Commis great us accusation causes such own when libelous sion undermined its credibility of the Commis about the concern rely de on what the Commission decided See, eg., ex rel. Judd v. State pain, when sion. reports of neck clared to be false (Medical Comp. Safety & Div. Workers' conceded that her at the Commission), 85, ¶¶ 36-40, 233 2010 WY and were pain problems had resolved neck
63 956, (Wyo.2010); questions In re P.3d 970-71 Worker's swered asked of her. Her Wyo. Comp. perceptions Claim Glaze v. State ex rel. of the workplace climate at Div., 102, Comp. Safety may & 2009 WY Workers' the Center have differed from that of ¶¶ 27-30, 228, (Wyo.2009);In 214 P.3d 235 re there, only who ques others worked but the Comp. Wyo. Claim v. State ex rel. Worker's by tioning the Division of substance was Div., 66, Safety Comp. 2009 WY Workers' & whether or not she was still friends with ¶¶ 16-18, 41, (Wyo.2009); P.3d 48 Decker 208 Camilleri. Comm'n, Wyo. Med. 2008 WY v. State ex rel. Randolph's [T34] We conclude that Dr. 100, ¶¶ 30-36, 105, (Wyo. 191 P.3d 121-22 testimony appeared was credible. He to be 2008); Wyo. Nagle v. ex rel. State Worker's only professional medical who had a com- (In Safety Comp. Comp. & Div. re Worker's plete grasp picture. of Camilleri's medical ¶¶ 99, 13-39, Nagle), Claim 2008 WY 190 forthright testifying He was that no medi- 159, (Wyo.2008); P.3d 166-74 Walton v. State expert say did, cal could that Camilleri or did Wyo. Safety Comp. ex rel. Workers' & Div. not, shoulder, have a serious to her (Medical Commission), 46, ¶ 39, 2007 WY that diagnosis only the final would come 932, (Wyo.2007); Rodgers 153 P.3d 941 v. light surgery. after He testified that the Wyo. Safety Comp. rel. & State ex Workers' workplace incident described (Medical Commission), 65, Div. 2006 WY injury, could have although caused the he did ¶ 53, 568, (Wyo.2006); 585 v. 135 P.3d Decker way not "decide" one or the other whether it Comm'n, Wyo. 2005 State ex rel. Med. WY actually happen exactly did as Camilleri de- 686, ¶¶ 38-42, 686, 160, 124 124 P.3d P.3d regard, scribed. In this the Commission did (Wyo.2005); 698-99 v. ex State Tarraferro appear to take into account that Dr. ¶¶ Comm'n, 155, Wyo. rel. Med. 2005 WY 18- Randolph's duty physician as a is to treat 21, 912, (Wyo.2005); Vaughan 123 P.3d 920 patients injuries present who that are Comp. v. rel. Div. State ex Workers' treatable, whether or not he finds the details ¶¶ (Medical Commission), 131, 2002 33- WY history" of "their If eredible or not. Camil- (Wyo.2002); 53 P.3d Keck v. injury, leri had a treatable shoulder then it Div., Safety Comp. rel. State ex Workers' & appeared goal to be his to do his best her. (Wyo.1999). 985P.2d extent, physicians
To some the other who minations are not some evidence, Overwhelming Weight Court of the to credit that [132] Commission's is now incumbent Having supported determined Evidence in determin substantial upon deter figure fered from what chiatric" case looked at her anxiety case. Camilleri never problems (anxiety/depression). dismissed her as evidentiary history denied categorized "picture" depression "psychiatric she suf- of this "psy- ing part the next of the standard of review. [¶35] Our criticisms of the Commission's regard apply In "... we this standard: credibility findings significant raise difficul whether there is substantial evidence to crediting ties in its ultimate conclusions. support agency's reject decision to the However, carefully we have reviewed all of party by evidence offered the burdened the evidence contained the record considering whether conclusion was reaching holding. our ultimate After contrary overwhelming weight review, careful we hold that the record con Dale, evidence in the record as a whole." tains substantial evidence to ¶ 22, 188 P.3d reject Commission's decision to much of the testimony/evidence offered Camilleri her Wallingford's We conclude that tes self, as well as that the Commission's timony deci was credible. Her decision to file a contrary sion was not overwhelming "Wyoming Report Injury Form" was a weight duty, of the evidence in the record as a option not some sort of that turned on Thus, Camilleri, greatly whole. while we are whether or not she believed at the concerned report. analysis time Camilleri made her her de Commission's of the testi position, documentary she testified under oath and an monial and evidence was seri
64 decision, eredibility specific make de should the Commis we conclude
ously flawed Wyo. affirmed. rel. Walton v. State ex should terminations. sion's decision 46, Div., Safety Comp. 2007 WY & Workers' ¶ 932, 31, (Wyo.2007). occa 939 On 153 P.3d CONCLUSION sion, necessary have found it to remand we court to of the district decision The [¶36] hearing examiner failed to the case because af is also Commission affirm the Medical findings credibility, mak specific provide firmed this Court. impossi review of the decision ing appellate Wyo. v. ex rel. Work E.q., Olivas State ble. Justice, concurring, BURKE, specially 17, Div., 29, 130 P.3d Comp. 2006 ers' WY ¶ Justice, VOIGT, joins. with whom ("When 476, (Wyo.2006) the resolution of 486 reached largely, in the result if I concur rests not exclu [¶37] a claim for benefits separately for two write a claimant's ered- majority sively, but an assessment of commend, First, rather I would to make ibility, hearing reasons. examiner's failure credibility findings regarding the claimant's criticize, for its Medical Commission than explanations of its thoroughness and detailed review of record renders effective on the Second, light in credibility denying impossible."). determinations. benefits the order case, majority it is not the function explanations, those and the does This is not such Instead, reweigh majority the Commission's ered- suggest this Court otherwise. not ibility credibility determinations. determinations. engages its own proper function of this Court That is not the imagine a more It is difficult [¶38] directly precedent. at odds with our and is than the written decision comprehensive unique "Credibility determinations are Fact, "Findings of Medical Commission's examiner, and we province of the and of Medical of Law Order Conclusions re-weighing those conclusions." eschew in this Hearing Panel" issued Commission Wyo. v. ex rel. Workers' Hamilton State pages length. document is 40 case. The Div., 20, ¶ 11, 18 Safety Comp. & 2001 WY excerpts set forth demonstrated As 637, Huntington v. (Wyo.2001). 640 See P.3d below, is the evidence before Commission Div., Comp. 2007 Wyo. rel. Workers' State ex signifi Most presented in detail. exhaustive 839, 124, ¶ 11, (Wyo.2007); 842 163 P.3d WY fully explained it cantly, how the Commission ¶ Olivas, 17, P.3d at 485-86. This Court 130 Where conflict weighed that evidence. position in a to make determinations is not exists, explained testimony the Commission credibility of witnesses. The regarding the that conflict. Where evi how it resolved credibility weight of the determination credibility upon disregarded based dence is assigned by the admin is law to the evidence concerns, a full ex provided the Commission fact, agency as the trier of is istrative "If, of its decision planation. in the course prerogative per within this Court's not disregards cer making agency process, Wyo. duty. Leavitt v. State ex rel. form that reasons for explains tain its evidence Div., Safety Comp. & 980 P.2d Workers' of eredi- doing upon so based determinations (Wyo.1999). 335 in the ree- bility or other factors contained ord, under the its decision will be sustainable core, revolved At its this case test." Dale v. S & S substantial evidence credibility of Ms. Camilleri. around LLC, 84, ¶ 22, Builders, 188 P.3d 2008 WY credible, not found that she was Commission (Wyo.2008). also Chavez v. 561 See support in the record for ample there is Safety Comp. & State ex rel. Workers' There is also determination. Div., 46, ¶ 18, 204 P.3d 2009 WY conclusion record for the Commission's my (Wyo.2009). upon Based review Kathy supervisor, of her record, the Commis I would conclude "wanting," and that the evi- Wallingford, was sup were determinations sion's experts other medical presented dence evidence. ported substantial testimony of than the persuasive was more treating physi- Randolph, emphasized Dr. Ms. Camillert's previously have We [¶39] cian. Commission, rendering that a Medical majority hockey player. Walling- rival concludes that of Ms. investigation Walling believe Ms. ford conducted an of this inci- Commission did not dent and none of the kitchen workers saw testimony "simply Wallingford ford's because anything or were inci- aware That and Camilleri were friends." *13 dent.... The Panel believes that friendship a factor men accurate. Their was very event was a minor occurrence and by discussing in Ms. tioned the Commission highly that improbable it is that Ms. Cam- testimony, Wallingford's but there were addi any injury. illeri sustained Wallingford did not wit tional reasons. Ms. Additionally, accident. she investi ness the "body [¶483] The Commission's check" gated and could not find one the incident is, measure, in large response reference a story. to corroborate Ms. Camilleri's witness escalating given the of the incident versions describing Wallingford's testimony After Ms. by physicians Ms. Camilleri to her and oth detail, up the summed Commission According ers. to the Commission: way: testimony view of the testimony 48. The record and show[ ] that Ms. Camilleri was not credible in her ... The Panel notes that Wall- 46. Ms. reports to her doctors or to the Panel ingford is a of Ms. De- friend Camilleri's. during this case. Her tone and demeanor spite present the fact that she was not testimony and cross examination indicated incident, day and that the she was being forthcoming. story she was not anything that unable to confirm occurred by of this event as related Ms. Camilleri day question by interviewing on the grown dramatically has changed and been staff, appears accept- it that she kitchen is injury report over time. The filed with ing Employee/Claimant's 100% of the ver- employee the Division noted that "another Wallingford sion of the events. Ms. employee, hitting walked into this [left] by employer shortly terminated after report shoulder." The filed with her em- by this incident of directors. On board ployer stated that Ms. Bauer slammed her whole, the Panel finds that the credibil- upper body left shoulder and into Ms. ity wanting. Wallingford of Ms. is Camilleri and shoved her. The Division's finding That dovetails with injury report paints picture a aof minor Commission's determination re report employer incident. to her Bauer, garding employee alleg Ms. who presents entirely picture. different Ms. edly injury. According caused to the reports police depart- Camilleri then to the Commission: ment that she had been assaulted numer- Overall, of Ms. Bauer However, by ous times Ms. Bauer. no appears very it a was credible and this was corroborating pre- evidence of such was undisputed minor incident. It is that nu- fact, sented. Ms. Camilleri testified in employees merous [were] volunteers deposition prior her there were no working in and near the kitchen when this physical contacts with Ms. Bauer. This a event occurred. This is small area. Had report police corresponds to the significant a event occurred the door- However, job. time Ms. Camilleri lost her way, probable there would have when Ms. Camilleri saw Dr. Jessen something. been someone who saw No say anything October she did not witness Em- was called corroborate the By about the work incident in issue. ployee/Claimant's version of these events. reported being time she saw Dr. Biles she deliberately appearance From her before the Medical slammed into or run into Commission, in her co-worker. She then told Dr. Goodman Ms. Bauer is late 50's early 60's. is five feet nine inches She opened she had been hit a door a co- tall time of the accident [at] employee "pop in and she felt a her neck" weighed pounds. Ms. Camilleri is of pain By her into left shoulder. pounds height weighed similar Randolph, time she saw Dr. Ms. Camilleri highly It the time of this incident. seems that when struck a co- related she was improbable ground. Bauer Ms. administered worker she was knocked to the "body that would Dr. hit check" to Ms. Camilleri She told Ruttle when she was 6G throughout findings. No discussed these and that she in her neck "pop" felt a she bilateral explained has the claims of one a counter. This herself on catch had to extremity re- upper problems. There are that Ms. time since the first pain, exaggerated pain, and ports global arm to using her left related that are not addressed. pain behaviors then Ms. Camilleri catch herself. brace or objective evidence of work There is little Bilbool, Psychiatrist, that she Dr. told injury. doggedly maintains Dr. hit who a co-worker was tackled despite Camilleri has C.RP.S. Ms. and shoulder. the chest diagnosis for this fact that no criteria [the] omitted.) (Internal citations Dr. Ran- discussed below. exist as will be conflicting "histories" served Those say in have a financial dolph also *14 the Commission's deci- partial basis for as a given extensive outcome of this case opinion of weight to the provide less sion to performed after June amount of treatment pro- the Commission also Randolph. But Dr. may paid. and for which he not be of 2005 explanation:
vided additional shoulder, again this was a 55. As clear that Ms. Camil- evidence is 54. The 2005, July no minor incident. Prior to history upper long of neck and had a leri what, any- if able to determine doctor was extremity She treated with her issues. thing, cause of her claimed shoul- was the day in before the incident chiropractor to find pain. No doctors were able der treatment on her question and received ... laxity pop- or confirm the shoulder involving Ms. Bauer neck. The incident July snapping in ping or the shoulder. insignificant a minor or event. was reported an incident of 2005 Ms. Camilleri not believe Ms. Camilleri sus- Panel does may have shifted where her shoulder injury. agrees a neck The Panel tained point pain ap- level bed. After this her that, worst, Dr. Goodman she sus- with Thereafter, pears have increased. a ongoing a exacerbation of her tained minor September physical therapist noted in and this would have re- problems neck that Ms. Camilleri have some period within a short of time. This solved instability in the shoulder her shoulder and by Drs. Ruttle and Ford as is confirmed sliding to the front of the did show some certainly at maximum well. Her neck was glenoid. positive impinge- had She also improvement medical June instability testing. ment Left shoulder doctors have To the extent Ms. Camilleri's Billings. pain at the clinic was also noted contrary, they opined to the were related incident, July Following this left [by] Employee/Claimant that history arthrogram MRI done that shoulder occurred. These significant some event glenoid indicated a small tear of the lab- fully aware of the Em- doctors were not Randolph rum. Dr. testified that the MRI significant pre-existing ployee/Claimant's only way diagnostic and the is not 100% heavily subjec- history. They through on the glenoid relied labrum tear is confirm complaints Dr. Ran- surgery. tive of Ms. Camilleri. Dr. Ford did not believe the opinions Ms. dolph Importantly, bases much of his on MRI a tear. both showed testified Dr. and Dr. Ford both history that at the time of the Camilleri's injury spun and had to catch herself on she not caused that such conditions are outstretched left arm. As discussed her condi- direct blow to the shoulder. Such falling landing an below, occur from or not occur. tions the Panel finds did throwing. repetitive arm or fully cogni- outstretched They appear do not to be also hostility her zant of Ms. Camilleri's toward until Ms. saw Dr. It co-employee, or the employer July former ever re- that she Ruttle in this case. None of psychological using factors left arm to catch herself ported her doctors, including Randolph, injury Dr. these a counter. The accident many history her her adequately explained reports, the cause of as well as have Likewise, doctors, Randolph, ap- including do not Dr. never pain. these doctors impact spin caused her to fully of the variable and said that the pear to be aware requiring her to catch herself contradictory findings by other doctors as around ® change story passive Joint stiffness and arm. This did decreased her left Thus, motion many months. not occur for did
required mechanism for such ® blemished, curved, changes: Nail tal- exist-Le., falling landing not occur on-like arm. Based on the on an outstretched ® out, growth changes: longer, Hair fall Bauer, questiona- it is from Ms. finer top in if was even a counter ble there Radiographic signs: to where this claimed event oc- proximity ®Radiographs: trophic changes bone os- tear, if it glenoid curred. The labrum teoporosis exists, injury in is not related to the work e findings Bone scan: consistent with question. C.R.P.S. neck, that at Like her the Panel finds only evidence that Ms. Camilleri has worst, she would have sustained a minor reported pain, this condition is which is bump on her left arm and shoulder which subjective. diagnostic None of the other period would have resolved in a short present. If criteria are Ms. Camilleri has certainly by of 2005. time June type pain, some of chronic it is not from 56. The Panel does not believe Ms. Cam- *15 , the work events issue. illeri has C.RP.S. Drs. Ruttle Ford (Internal omitted; emphasis orig- citations opined that does not have this condi- she inal.) notation, By appears tion. a lack of it Dr. does not she has this con- Gee believe It should also be noted that [¶45] this pain Billings. clinic in dition nor did the medically was a contested case heard a Randolph Dr. wrote and testified panel panel of the Medical Commission. The only symptom exag- this condition was members in this physi case included three gerated pain. Ms. Camilleri's skin was cians, two of whom were board certified. dry. warm and does not have discol- She role of "The the Medical Commission is to oration, sweating pat- swelling, abnormal medically through resolve contested issues terns, changes. Randolph or vascular Dr. professional expertise pro of [healthcare] develop a has never seen case C.R.P.S. viders. The Commission'srole includes de impact such as shoulder termining weight given to medical alleged in case. opinion testimony, reweighed and will not be The AMA Guides to the Evaluation of PDQ upon Hurley Transport, review." v. (5th Edition) (citation Inc., 134, Impairment (Wyo.2000) Permanent 6 P.3d 138 pg. provides objective Table 16-16 at 496 omitted). The Medical Commission is not diagnostic An criteria for C.R.P.S. individ- obligated accept findings of medical eight ual who meets or more of the criteria if, expert expertise, in their the Commission probable If an individual has has C.R.P.S. determines the factual basis eight findings unlikely it less than of the is opinion medical is not eredible or reliable. they suffering are from this condition. findings Id. The of the Commission in this following: provides This table ignore it case demonstrate that did not Dr. signs: testimony. fully Randolph's Local clinical It considered testimony, opinion his but found his was not changes: Vasomotor findings credible. The Commission's were ® cyanotic color: mottled or Skin clearly supported by not erroneous and were ® temperature: Skin cool evidence. substantial * Edema note, exeep a final I As also take changes: Pseudomotor majority's tion to the harsh criticism of the e dry overly moist Skin mentioning Randolph's Dr. Commission for Trophic changes: potential financial interest in the outcome as e smooth, Skin texture: nonelastic credibility Arguably, finding factor. ® atrophy: especially supported by in fin- substantial evidence be Soft tissue specifically Dr. never
gertips cause 6§ paid and 391, [1949]; Duffy Griffith, if medical bills had been
asked his
Pa.
receive for
possible
fying, for such information has
impartiality,
bearing upon the witness's
and interest
the result.
Kline,
v.
352 Pa.