In the MATTER OF the Worker‘s Com-pensation CLAIM OF: William H. ROG-ERS, Appellant (Petitioner/Claimant), v. RUSSELL CONSTRUCTION COMPANY, INC., Appellee (Respondent/Employer).
S-15-0297
Supreme Court of Wyoming.
August 16, 2016
2016 WY 80; 378 P.3d 316
Representing Appellant: Jeremy J. Hu-gus, Platte River Law Firm, Casper, Wyo-ming. Representing Appellee: Denny Harts, At-torney at Law, Douglas, Wyoming.
DAVIS, Justice.
[¶1] William Rogers appeals from a district court order affirming the Office of Adminis-trative Hearing‘s (OAH) denial of his claim for worker‘s compensation benefits. We af-firm.
ISSUES
[¶2] Rogers raises two issues relating to the OAH decision. We restate them as fol-lows:
- Was the hearing examiner‘s determi-nation that Rogers failed to prove a com-pensable workplace injury supported by substantial evidence, and if so, was it none-theless arbitrary and capricious?
- Was the hearing examiner‘s determi-nation that Rogers failed to prove that the late filing of his report of injury did not prejudice his employer or the Workers’ Compensation Division (Division) sup-ported by substantial evidence, and if so, was it nonetheless arbitrary and capri-cious?
Because of our resolution of the first issue, we need not reach the second.1
FACTS
[¶3] On November 19, 2013, Rogers was working at the Dave Johnson Power Plant near Glenrock for Russell Construction Com-pany (Russell), along with his supervisor Blake Palmer and another worker, George Emery.2 The three men were pouring and finishing concrete in a footer form that was sixteen inches wide and eight to twelve inches deep, with vertical rebar dowels stick-ing up in its center. The form was in a trench that was two and a half to three feet deep. Palmer was guiding the chute of the concrete mixer truck while Rogers and Emery worked to level and finish the poured concrete. Ap-proximately fifteen feet from a ninety degree turn in the form, and just past a point where several pipes or conduits crossed the trench, the chute momentarily caught on a piece of wire attached to the rebar and then popped up with some force.
[¶4] Rogers claimed that when it sprang up, the chute came close to his head, startled him, and caused him to step back. He testi-fied that when he did so, he tripped and fell backward against a ledge of old concrete protruding from the side of the trench. He also claimed that Palmer was facing him, and he was so close he must have seen the fall, and that Palmer in fact asked him if he was all right after he stood up.
[¶5] However, Palmer and Emery testified that Rogers was farther away from the chute, at the corner of the trench, and sepa-rated from it by conduit. Both testified that they did not see Rogers fall, despite their proximity to where Rogers claimed to have been injured. Furthermore, they testified that he did not mention that he had fallen during the pour. Rogers continued to work that day and afterward, and he did not seek medical attention for nearly a month.
[¶6] On December 18, 2013, he spent most of the day knocking down a portion of a cement block wall with a hammer drill.3 He felt unusually stiff and sore at the end of the day, and he therefore visited the emergency room at the Memorial Hospital of Converse County.
[¶7] A report concerning diagnostic x-rays of Rogers’ spine taken during that visit re-vealed that he had undergone some kind of previous lumbar spine study at that facility in early 2009.4 A radiologist who reviewed the
[¶8] Rogers testified that he filled out that paperwork, took it to Russell‘s office manag-er the next day, and advised her that the doctor said he should not return to work until the pain went away or another doctor released him for work.6 Two days later, he drove to Oklahoma for the Christmas holi-day, planning to stay there for the two to three weeks he said the Converse County emergency physician said it would likely take for his back to feel better.
[¶9] He later decided to see an Oklahoma physician, and he contacted a Wyoming at-torney for advice as to how to assure that his medical expenses would be covered by the Division. He was advised to file what he called “another” Report of Injury.7 He did so on approximately January 21, 2014, and in that document he claimed he had suffered a first-time injury to his lumbar spine after falling on his back while pouring concrete.
[¶10] On February 4 and February 25, 2014, advanced practice registered nurse/cer-tified nurse practitioner (CNP) Bronwyn Howard examined Rogers in Oklahoma.8 She initially diagnosed him as suffering from a lumbar strain or sprain, and prescribed med-ications to relieve pain and spasm. She also ordered an MRI, a considerably more sophis-ticated study than the plain film x-rays Rog-ers previously had. The radiology report of that study reflected possible spinal changes due to mild degenerative narrowing of the spinal canal and nerve exit points due to mild disc bulging and facet enlargement between the fourth and fifth lumbar vertebrae. It also indicated that the radiologist saw mild disc shrinkage and facet enlargement between the fifth lumbar and first sacral vertebrae. Howard therefore referred Rogers to a Tulsa neurologist for evaluation.9 She also notified the Division that he would have to severely limit his activity and that he was therefore temporarily disabled.
[¶11] On February 21, 2014, the Division issued a determination that Rogers had suf-fered a compensable injury. Russell objected to that determination, restating its previous response that the claim was fraudulent. The Division referred the case to the OAH for a hearing, which was held on January 7, 2015.
[¶12] Only Rogers, Palmer, and Emery testified at the hearing, and no deposition testimony of medical professionals was of-fered. However, several exhibits, including some medical records, were admitted. Rus-sell argued that Rogers had not shown his
[¶13] The hearing examiner ultimately agreed in a detailed 43-page “Findings of Fact, Conclusions of Law, and Order” dated February 25, 2015. He noted many conflicts and deficiencies in the testimony presented at the hearing, as well as the absence of medical evidence to establish how the alleged workplace incident could have caused the injury Rogers claimed. He concluded that Rogers had not proved that he suffered a compensable injury on either November 19 or December 2, 2013, and consequently de-nied benefits. He also found that Rogers failed to timely file a report of injury, and that he failed to prove a lack of prejudice from doing so.
[¶14] Rogers then petitioned for judicial review of that decision, and the district court affirmed. This appeal followed.
DISCUSSION
[¶15] In appeals from a district court‘s review of an administrative decision, this Court examines the case as if it had come to us directly from the agency. We review conclusions of law de novo, but apply the substantial evidence standard to an agen-cy‘s findings of fact. That is, we determine whether evidence in the record provides a rational basis for those finding. We defer to the agency‘s determinations as to the credi-bility of witnesses and whether the claimant carried his burden of proof, unless those determinations are clearly contrary to the overwhelming weight of the evidence. Final-ly, as a safety net, we employ the arbitrary and capricious standard to claims that the agency failed to admit clearly admissible evi-dence, or failed to produce findings of fact or conclusions of law sufficient to explain its decision. Leavitt v. State ex rel. Wyoming Workers’ Safety & Comp. Div., 2013 WY 95, ¶¶ 17-19, 307 P.3d 835, 840 (Wyo. 2013).
[¶16] At the agency level, a worker‘s compensation claimant must establish that the particular physical malady for which he is seeking benefits is compensable and that it is causally connected to a specified on-the-job incident by a preponderance of the evidence. A claimant cannot recover for a condition which is a result of normal aging and day-to day life activities. In re Hirsch, 2014 WY 61, ¶¶ 36-37, 323 P.3d 1107, 1115 (Wyo. 2014) (citing
[¶17] Rogers challenges a number of the hearing examiner‘s findings of fact as being unsupported by substantial evidence and ar-bitrary and capricious. He does not, however, suggest that admissible evidence contrary to those findings was excluded from the hearing or the record in general. In fact, his argu-ments rely solely upon record evidence. Con-sequently, the arbitrary and capricious stan-dard is inapplicable, and we will review the findings of fact only to determine whether they are reasonably based on substantial evi-dence.
[¶18] Rogers first takes issue with the hearing examiner‘s findings that his testimo-ny about his alleged fall was uncorroborated. He asks us to evaluate those statements by reading them literally, and to contradict that literal reading directs us to snippets from statements made by Emery and Palmer. The hearing examiner found, in substance, that Rogers’ testimony was corroborated, to the extent it was, by nothing more than his re-statement of his version of the facts to oth-ers, and not by the testimony of either Em-ery or Palmer.
[¶19] Rogers points to Emery‘s testi-mony about a conversation he had with him on their way home from work on the day of his alleged fall. Rogers’ insistence that he gave a detailed and nearly contemporaneous account of the accident comes primarily from his attorney‘s questions rather than Emery‘s answers to them. Emery actually described a
[¶20] Rogers also directs us to a brief note made by a Division employee, Gina Salazar, regarding a telephone conversation with Palmer. Palmer allegedly told Salazar that he saw Rogers “fall back” but was unsure if he did it on purpose. The hearing officer gave little weight to this evidence for legitimate reasons. Palmer did not recall having any such conversation with Salazar, and Salazar was not called as a witness to provide context and foundation to support the second-hand statement. Once again, we defer to the hear-ing examiner‘s decision as to the weight to be given to evidence. Id.
[¶21] Rogers also takes issue with the hearing examiner‘s finding that there was no evidence that he reported going to the emer-gency room on December 18, 2013, until much later, on January 21, 2014. We believe that statement was meant to convey that no evidence other than his testimony supported his assertion that he reported the hospital visit to Russell‘s office manager the next day, December 19. The hearing examiner recog-nized that Rogers testified to that effect, but he also found it significant that Rogers did not call the office manager or any other office personnel he allegedly spoke to that day to corroborate that testimony. We cannot fault the examiner for doing so.
[¶22] The closest Rogers came to a legiti-mate criticism relates to the examiner‘s statement that, upon being confronted with a medical report indicating he had previously undergone lumbar spine examinations, Rog-ers said he did not know what the lumbar spine was. We have scoured the record, and we cannot find anywhere that he made such a statement. Rogers testified that he had a history of back pain which had resolved it-self, and the Converse County hospital rec-ord likewise indicates a history of back pain. The statement that does not appear in the record is of doubtful importance, although it could perhaps indicate that Rogers was being evasive. We have previously held that only those findings which are necessary to sup-port a hearing examiner‘s decision must be supported by facts in the record. Leavitt, ¶ 32, 307 P.3d at 842. This particular finding was unnecessary to the decision, and it is unimportant when considered in the context of the entire record.
[¶23] Finally, Rogers takes issue with the hearing examiner‘s determination that he provided no evidence that his alleged fall injured his lumbar spine. In large part, he relies on a seven-line letter sent to him by CNP Howard two days before the OAH hearing. There Howard stated:
To the best of my judgment and experi-ence there is a reasonable degree of proba-bility in my observation in the findings in his physical exam and MRI are consistent with the type of injury that he describes and potentially consistent with continued aggravating assault of the continue [sic] jack hammering.
The hearing examiner found that statement less than compelling.
[¶24] As noted above, proof of causation usually requires expert medical testimony that a workplace event more probably than not effected the bodily damage for which compensation is sought. In contrast, How-ard‘s statement conveys only the likelihood that Rogers’ strained muscles and disc bulge
[¶25] The human body is a wondrously complex machine that is constantly subjected to external forces, the effects of heredity, the impact of bad habits, and ravages of time. Mize v. North Big Horn Hosp. Dist., 931 P.2d 229, 234 (Wyo. 1997). It is not too much to ask that a claimant provide medical evidence to show that his condition was prob-ably caused by a work-related injury rather than another non-compensable cause.
[¶26] The radiology report concerning the plain film x-rays taken at Memorial Hospital of Converse County noted narrowed disc spaces at L4-5, partial sacralization at L5, and spondylolisthesis at L4-L5, all of which could have been and likely were degenerative changes associated with aging and use rather than the result of trauma. The report on the MRI taken in Oklahoma also indicated what could be degenerative facet changes and disc bulges. CNP Howard‘s letter provided no indication as to how these changes could be distinguished from those which occur due to normal aging in a 48-year-old man who made his living doing hard physical labor. A state-ment that such conditions could be consistent with a fall does not separate the claimed injury from the universe of other potential causes.
[¶27] Finally, hearing examiners may disregard even uncontradicted opinion testimony from a medical expert if it is not adequately supported by the facts on which it purportedly rests, or if it is based upon an incomplete or inadequate medical history. Leavitt, ¶ 21, 307 P.3d at 841. Nothing in the record suggests that CNP Howard knew of Rogers’ history of low back pain, which might or might not have suggested a pro-gressive degenerative cause. It is obvious that the hearing examiner was not presented with anything resembling the two-year histo-ry of treatment that Howard referred to in her letter, which is concerning. The examiner confronted a case in which the event alleged to have caused the injury was at least argu-ably not established, an arguably delayed report of the claimed injury, and a medical opinion that only hinted at causation, and that only on the basis of what appears to be an incomplete medical history. We cannot fault him for declining to find causation un-der these circumstances.
CONCLUSION
[¶28] We conclude that the hearing exam-iner‘s determinations of fact were reasonable and based on substantial evidence. Because Rogers’ arguments present no opportunity to resort to other standards of review, we af-firm the district court on that basis and do not analyze the timeliness of Rogers’ Report of Injury.
DAVIS, JUSTICE
SUPREME COURT OF WYOMING