*2 KITE, C.J., Before GOLDEN, HILL, VOIGT, BURKE, JJ.
HILL, Justice. Appellant, [T1] Sherry Lane-Walter (Lane-Walter), challenges an order of the district court which affirmed the decision of a (Medical Hearing Panel Commission). The Medical Commission's or der denied the benefits Lane-Walter sought for a back surgery procedure. Benefits were denied on the basis surgical that the proce issue, dure at to implant an X STOP®1 device in back, did not qualify as necessary "reasonable and medical care." contends that she was entitled to that "medical care" under paragraph 7 of the settlement agreement that she reached with the Wyoming Safety Workers' Compensation May 19, Division on In addition, sought preauthoriza tion for surgery was told Wyoming Safety Compensation (Division) Division preauthorization required in her case. After the surgery Lane, had been successfully completed and Walter had recovered much of ability perform the usual life, activities daily of her albeit with disability some still remaining, all of the claims submitted to the her health providers care were denied. The basis for the denial was that surgery issue was "not reasonable medically neces sary."
[¶2] We will reverse the order of the
district court which affirmed the Medical
Commission's
Furthermore,
decision.
we re
mand this matter
to the district court with
Representing Appellant: George Santini of
directions that
it further
remand it to the
Ross,
Santini, LLC,
Ross &
Cheyenne, WY.
Division with directions that Lane-Walter's
Representing Appellee: Bruce A. Salz-
claims for the X
surgery
paid
be
burg, Wyoming Attorney General; John W.
cause the Division's and the Medical Com
Renneisen, Deputy Attorney General; James mission's decisions that
was not
Michael Causey, Senior
Attorney
Assistant
"reasonable or medically necessary" are not
General;
Kelly
Roseberry, Assistant At-
sustainable under our prevailing standard of
1. The X
interspinous
STOP® is an
decompres-
spinal stenosis.
It
implant
is a titanftum
that fits
system.
This medical device is indicated
spinous
processes
between
spine.
of the lumbar
patients
(50)
treatment
age fifty
or older suf-
It is made
alloy
from titanium
and consists of
fering from
neurogenic
intermittent
components:
claudication
two
spacer assembly
wing
and a
secondary to a
diagnosis
confirmed
assembly.
lumbar
she could
of health so
to a condition
and cireum-
unique facts
review,
given
gainful employment.
form of
to some
return
this case.
stances
Because
never reached.
goal
That
Wyoming, Lane-Wal
lived in southwestern
ISSUES
treat
initial medical
much of her
received
ter
*3
is
as the
poses these
[¶8]
rely
to
Utah,
continued
and she
ment in
our resolution:
for
sues
moved to
after she
physicians even
those
Commis-
the Medical
of
the decision
1.
Is
Wyoming.
northern
for the rea-
capricious
arbitrary and
Lane-
also reflects
The record
from
material evidence
that it omitted
son
the Division was
with
interaction
Law Walter's
Fact,
of
Conclusions
Findings of
its
eyes, and
unsatisfactory,
in her
extremely
and Order?
medical treatment
obtain
her efforts to
2,
improper-
Medical Commission
Did the
were of
compensation benefits
and worker's
were
opinions which
medical
ly [rely] upon
See, e.g.,
Division.
ten frustrated
inadequate foundation?
upon an
based
Lane,
(Wyo.1989). On
the injury back and its pain, associated but sion had informed him that was not neces she also generalized suffered pain, depres- sary. sion, anxiety, sleeplessness, and hostility to- ward both her providers healthcare and the finally Lane-Walter began to move Division. generalization, As a we will note in the direction of reconsidering surgery in here that both the Division and Medical 2007, when Dr. Horne recommended an X Commission treated these side effects as be- STOP® implant and because pain the she ing very significant in denying her benefits in was suffering had become intolerable. the instant proceedings. claimed, Lane-Walter and the Division did [¶7] The Medical Commission included in not deny in any way or rebut, attempt that its findings a reference page to one of a four- she was told the require did not pre- page document, to which was appended a authorization. The surgery very was much a second document pages in length. Those success from Dr. Horne's and Lane-Walter's appear documents originated have from points of view. records" "voluminous which, any, of those if finally Division In late appeal. record on actually in the are procedure X STOP recognition
gave M.D., Cook, on by Judson done first was that form preauthorization a created actually see did not He April by the heard The evidence procedure. report, In his that Lane-Walter. demonstrated talk think not that he does concludes Cook that ascertained surgeon encounter- was problems by the man established criteria fit all of be related could ing in 2008 Howev X STOP®. use ufacturer not at issue that was although injury, out the actually fill original not er, surgeon did concludes He also proceedings. in these determined form because X STOP authorized have not he would to obtain required not was attending physi- had he been procedure the document "preauthorization" if he saw mind change his cian, might he Checklist." but "Preauthorization entitled documenta- Such documentation. additional record in the contained documentation have it existed, did Dr. Cook has been but Xthe tion STOP® reveals appeal he be said It could to him. available "industri throughout use generalized by Dr. given medical advice overruled Africa, Asia, Europe, democracies" alized intimately familiar Horne, who 2001, and was since Pacific the South *5 history, medical 24-year-long States in the United FDA by the approved of hour review and one-half a two with recog gave tentative Division The in 2005. and records medical pertinent of the Horne, "some" who Dr. 2007. in late to it nition data radiological any the seeing of to be without Lane-Walter, not deemed treated Most had relied. Dr. Horne which upon in had been he witness because a credible the tenor changed Dr. Cook Division, importantly, the the critical temperately at testified considerably when he his IME hired Commission, experts the and Medical ignorance hearing. Division, apparent the their by the the X STOP the benefits respect with done Ste IME was The second to be hardly needs think We procedure. report his prepared He Emery, M.D. F. phen ar acted Commission Medical that the said actually see too did not He May on punitively, if not capriciously, bitrarily and in the He indicates to Lane-Walter. or talk words intemperate Dr. Horne's utilizing in it was of his review paragraph first benefits denying Lane-Walter in a factor as or ascertaining whether directed the terms under was entitled to which in the out criteria set the met Division. the of her settlement really makes never and checklist preapproval it was whether matter of the mention surgery, Lane-Walter the After [T11] necessary. His con medically or reasonable prescrip- same many of the to use continued that Lane-Walter nurse said that a medication, is clusion medications, including pain tion surgery, the after pain in a lot still much was a surgery, but at had before as she longer miraculously no patient and that Division Both the level. reduced though the toes, even in her numbness felt her continued treated Medical an such produced not have surgery could proof that as medications of those use Emery fo Dr. significant It is necessary"- effect. or "reasonable was not surgery psy a 1992 on attention of his much subjective cused though both successful-even or indicated evaluation chological to the very much pointed data objective good candidate not a contrary. time, nearly years at that surgery, further Independent used two 12] [J He here. at issue surgery previous (IMEs) attempt Evaluations report. on his hours of six a total spent docu- testimony and the Horne's Dr. rebut fairly com a to be appears What at the outset noteWe mentary record. his summary Lane-Walter's plete documents, there but refer evaluations in the appeal record in the tory appears them- reports from way ascertain is no Douglas Niel by Karl done IME of an form being cited or is document which selves sen, M.D., F.A.C.S., in 1998. It appears that County Laramie School Dist. No. I v.] Spiegel, this evaluation was done at the behest of (1976)] 549 P.2d [1161] at 1178 [ Division so as to establish a baseline for the (discussingthe definitionof substantial evi- administration of the agreement settlement "contrary dence as to the overwhelming reached between the Division and evidence"). Lane-Wal weight If, in the course ter. -It is evident that neither Dr. Cook nor of its decision making process, the agency Emery document, saw this although the disregards certain evidence explains Medical Commission made brief reference to its reasons for doing so upon based deter- it. credibility minations of or other factors record,
contained its decision will be DISCUSSION sustainable under the substantial evidence test. Importantly, our any review of par- Standard of Review ticular decision turns not on whether we [T15) The issue the Medical Commission agree outcome, with the but on whether considered was this: agency reasonably could conclude as it did, based on all the Whether evidence various before it. medical treatments in- cluding preoperative tests/examinations, arbitrary capricious standard postoperative visits, that was "'safety remains a net' to catch agency performed on February 2008, are con- prejudices action which party's substan sidered reasonable and medically neces- rights tial may contrary to the sary as related to [Lane-Walter's] other W.A.P.A. review yet standards is not injury that occurred November easily categorized or any fit to particular one and are compensable. therefore st andard.'' Newman [v. State ex rel. review we [¶16] We articulated in Dale v. S & S Build apply the standard of Wyo. ¶ 23, 49 P.3d [163] Safety *6 at 172 (Wyo.2002) [ Comp. Div.], ]. ers, LLC, ¶¶ Although explained we 22-24, 2008 WY "safety the 188 P.3d net" (Wyo.2008): application of arbitrary the capricious and Newman, standard in we will refine it (I)n ... the interests of simplifying the slightly here to carefully more delineate process of identifying the correct standard that it is not meant apply to to true eviden- of review and bringing our approach closer tiary questions. Instead, arbitrary the and to original the use standards, of the two we capricious standard apply will if the hear hold that henceforth the substantial evi- ing examiner refused to admit testimony dence standard will applied any time we or documentary exhibits that clearly were review an evidentiary ruling. When the admissible or failed provide to appropriate party prevailed burdened before agen- the findings of fact or conclusions of law. This cy, we will if determine substantial evi- listing is demonstrative and not intended denee exists to support finding the for that as an inclusive catalog of possible all cir party by considering whether there is rele- cumstances. Id. vant evidence in the entire record which a might reasonable mind accept in support of There will be times when the arbitrary ageney's the conclusions. If the hearing capricious and appears standard to overlap examiner determines that the burdened with some of the other standards. For party failed to meet his proof, burden of example, a against decision great the we will decide whether there is substantial weight of the might evidence properly be evidence to support agency's the decision called arbitrary capricious or in everyday reject evidence offered the bur- language. However, the words "arbitrary" party dened by considering whether that "capricious" and must be understood in conclusion contrary was to the overwhelm- context as terms of art under the adminis- ing weight of the evidence in the record as trative review statute and should not be See, a whole. Wyo. Group Consumer employed in areas where the specifi- more Public Serv. Comm'n Wyo., 882 cally P.2d defined provide standards of sufficient (Wyo.1994); 860-61 Trustees, [Bd. relief. of employee pur- of an disability treatment or unusu an presents This case [T17] repair or including the act to this suant It was issue. ill-defined and ally narrow artificial any preexisting of very replacement much established, it is still and long-ago eye- aid, hearing prescription replacement, fact, that governing frame, lens or inju lens, contact eyeglass glass a work-related from stemmed problems damaged or de- agreement if the device is settlement dentures that under ry, and any other pay and obligated to in an accident above, stroyed Division is set out necessary treat authorized medically products or services and health reasonable for the division. regulations of pro and rules In this injury. that incidental ment in- does not hospital care" in that any "Medical carry burden not did ceeding, she item, automobile or ie., injury personal is work-related any clude regard, phys- reasonable or other remodeling deemed an automobile was treatment club, structure, health attending physician. private or public necessary by her ical judge aid, that experimental upon or not called center weight was loss fur- it had item of and, surgical procedure, the extent decision ex- (preauthoriza supplement weigh in on and food or vitamin niture opportunity Lane- regulation to do so. under rule surgery), provided it declined cept as tion for (a)) because of this credibility paragraph not issue was division Walter's crucial was re- gave impairments or disabilities testimony she only section was that wheelchairs[.] this case the use of quiring to the resolution was recom surgery that undergo agreed Rules, Depart- Wyoming Code 3 Weil's treating physician by her to her mended Compensa- Employment, Workers' ment duration, had entered and she many years Schedules, Rules, Fee Regulations and tion the Divi agreement a settlement into flesh 0220001-21 through 025 001-1 025 0220 for such pay would the Division lan- the above Division views out how treatment(s). 4(al), instance, § 025 0220 ch. guage. For principal required cireumstances, some it testified and her physician that place on cal Commission accomplished [T19] disability. Neither she ailed going of her [118] that medically Lane-Walter to demonstrate burden The burden Lane-Walter. ever to be pain and received We suggested appears to surgery was a miraculous necessary. Lane-Waiter intended also conclude proof, lessening the is the Division. proof that that which that have nor her in these goal of efficacious, Le., the X STOP® the treatment "cure" for attempted to reasonable the Medi- degree attending relieving unusual It Divi- was all vices vides: 001-5 necessary treatment' cure or sonable fits as reasonable sistent vw.State eter." 2006) compensable Comp. 125, 129-80 for a provides a result (Sept. Div., with Ch. significant "Medically ex As noted compensable 7, and (Wyo.2008). any applicable treatment necessary 2008WY under rel 2008) § of such that 3(a)@), necessary health Wyo. the Act shall relief of above, "[workers] Necessary. (emphasis means 105, injuries." See 025 0220 injury that Lane-Walter those health a condition 17-18, diagnosis and added), pro- 001-20 care bene- 'Medically Safety & provided 192 are rea- injuries Paimer param- (Oct. P.8d *7 con- ser- had About February Ann. Wyo. surgery Stat. on arise from her claims (em- 2009) earlier, Decem (LexisNexis on 27-14-102(a)(xii) months and one-half two § "X-stop adopted added): ber phasis sys decompression process interspinous hospital care" (xii) and "Medical The guidelines." preauthorization provider tem by care a health provided when "Preauthorization a included guidelines necessary any reasonable means adduced The evidence Checklist." hospital ser- medical, surgical or aid, first established this matter hearing into appara- supplies, vice, surgical sought physician Lane-Walter re- artificial adequate tus, essential it was not told but were preauthorization during impairment, body aid placement, required in Why her case. that was so is not hearing end of the process. only explained by exception to that was the failure to complete appeal, the record on but the Division did not contradict or otherwise chal a comprehensive pre-surgery authorization, lenge that claim. It is unfortunate that which the Division require did not in this physician Lane-Walter and her did not insist Finally, case. we must note with a sense of placed form, it be in written per bewilderment that Lane-Walter was consid- haps this case will warning serve as a in that ered to be a dishonest witness because she regard for future In any claimants. adver claimed that numbness in three of her left sary setting, "getting in writing" just it is improved toes was by the X surgery, simply ABC's, one of the even if one is Emery whereas Dr. said it possible was not compelled to create regularly one's own kept could have had that benefi- business record to goal. achieve that Past cent effect. We unwilling are accept such precedents establish that this is especially leap logic. a said her toes respect true with compensation worker's improved were and there was meaningful no claimants-comprehensive documentation is testimony in this dispute record to that. always critical. Moreover, assuming even purpose argument that Lane-Walter was describing In findings, [T21] its the Medical something that medical carefully science cannot selectively meas- edited ure, way other, out one all or the by evidence offered is not "stuff" that a fact finder could use explained to label her side of this case. Medical Commission'sfindings reveal testimony that it all of her as "incredible." did not understand proof the burden of ap plicable in this case nor did it understand its CONCLUSION role in presenting an summary accurate To the extent that Lane-Walter the evidence that Lane-Walter offered in had a proof burden of case, in this we hold: support very proof limited that she There is not substantial support evidence to required present in this case. The agency's reject decision to the evidence Medical very Commission relied heavily by offered Lane-Walter. We reach that de upon Emery's Dr. IME. Virtually all of his by cision considering whether the Medical "opinions" were upon based dated materials Commission's conclusions contrary were
which he inaccurately summarized and in a the overwhelming weight of the evidence in manner that possible shed the light worst the record as a whole. The Medical Com Lane-Walter. The record also reflects that mission's determinations that both Dr. Horne Lane-Walter was sent to Emery see Dr. and Lane-Walter were not an credible IME in wit but he refused to see her. supported nesses are not Fortunately, substantial evi- thorough IME was done denee, ie., there is not Provo, relevant Utah, Nielsen evidence in 1998. The the record which a Commissionrelied on report reasonable might mind *8 accept in support of determine the Medical that she good was not a Commis candidate for the X (a sion's conclusions. in The 2008 non order of the district procedure invasive not developed court affirming the until Medical well Commission is 1998, Furthermore, reversed. after this one that can matter is re undone readily manded to the any significant without district court with damage to the directions patient). The further Medical remand it Commission to the also con that, cluded because of with the seven directions that failed sur it direct the geries pay Division to exacerbated her the seemingly claims by rela submitted tively minor injury 1984, of and her health providers was not care good candidate for the X STOP® in for the reasonable and necessary medical It is evident from the transeript of the hear treatment at in issue this case. ing that surgeon, Horne, Dr. and the Medical expert Commission's HILL, J., wit opinion delivers the of the ness, Cook, pretty came Court; close to seeing BURKE, J., special files a eye-to-eye about Lane Walter's by concurrence, treatment VOIGT, J., with whom joins.
521 228, Div., 102, 18,1 214 P.8d 2009WY Comp. Justice, concurring, BURKE, specially Builders, & S (Wyo.2009); Dale v. S Justice, VOIGT, joins. 231 whom 84, 135, LLC, P.8d 568 188 2008 WY by in the result reached I concur [¶23] depart from our should not (Wyo.2008). We I because separately I write majority. the Lane-Walter, as in this case. Ms. precedent majority's conclusion disagree with Claimant, proof. the burden of had "to on the Division proof was of the burden Third, legal that the treatment majority cites no demonstrate [¶26] and not medi proof not reasonable switching the burden of authority received I original.) in necessary." (Emphasis cally is justification offered Division. The sole join in that determination cir am unable "in these unusual appropriate it is reasons. circumstances specific several The cumstances." majority's are not decision significant to the First, not raised the issue was [¶24] opinion. Is it the easily from the identified level, appeal with hearing at the Claimant represen agreement? prior settlement court, appeal to this in the district prior au employee a Division tation Order, Commission, specif in its Court. The evidentia- required? was not thorization bur had the that Claimant ically determined testimony of the arising from the ry conflict challenged has never Claimant proof. of den reasons, or experts? All of those has the issue Because determination. reason en them? Or another just some of had no raised, Division has been never provides no majority opinion tirely? The regarding position present its opportunity facts and cireumstances guidance as to what proof. burden of proper allocation of of the burden mandate a reallocation will Dist., Hosp. County v. Teton Compare Guier in future cases. proof (where (Wyo.2011) P.3d 623 248 2011WY allocation of the proper we considered Fourth, of switching the burden was raised that issue proof when burden cause in this case will proof to the Division hearing appeal, and on administrative at the Here, cases. Com problems future Court). to this adequately briefed and was with the parties proceeded mission and the argued that the Commis has never Claimant had the burden understanding that Claimant proof. incorrect burden applied an Accordingly, counsel proof. Claimant's that she satisfied simply asserts She statement, followed opening made the initial hearing. Because evidentiary at the burden counsel for the opening statement from by an raised, this Court has never been the issue presented her evi then Division. Claimant State, Duffy 780 it. v. not consider should rested, After Claimant dence. ("Under the settled (Wyo.1986) P.2d I understand the As presented its evidence. consider we will not authority of this court incor procedure was majority opinion, this not been briefed." points which have [those] the burden the Division had Because rect. Zametti, 689 P.2d (quoting Zanetti open initial have made the proof, it should (Wyo.1984))). presented its evidence ing statement cases, decision, in similar Second, proof placing the burden Prior to this first. understood and the Commission parties precedent. with our Division conflicts on the Now, because proof. the burden of in who had steadfastly that the claimant held We have decision, case bears the bur doubt. Are the compensation there will be a worker's of this enough to "unusual" of the next case claim for facts all of her proving elements den to the Division? justify switching the burden See, eg., Kenyon v. State ex rel. benefits. *9 Div., Safety Comp. 2011 When & decision be made? Wyo. Workers' How will 845, case, majori 14, 121, (Wyo.2011); should 247 851 In P.3d it made? this WY the decision Safety ty apparently has concluded Wyo. rel. Workers' Bailey v. State ex 152, 115, Div., present 248 P.3d has been Comp. 2010 WY after evidence & can be made presented upon evidence and can be based rel. ed (Wyo.2010); Alphin v. State ex 957 simply is Div., hearing. procedure That Comp. 2010 Safety & Wyo. Workers' parties 39, T17, (Wyo.2010); P.3d 68 It is essential unworkable. WY prior understand Safety and the Commission Wyo. & rel. v. State ex Glaze hearing commencement of the party proof. post
bears the burden of Ex facto assignment proof par burden to a party upon
ticular presented based evidence hearing only
at the will cause confusion.
LARAMIE COUNTY SCHOOL ONE, Ap
DISTRICT NO. pellant (Defendant), Representing Appellant: Evans, David Radosgevich Bush, Richard D. and Kristi v. Evans, LLP, Hickey Cheyenne, & Wyoming. NEWSPAPERS, INC., CHEYENNE d/b/a Argument by Mr. Bush. Wyoming Eagle, Tribune and D. Reed Representing Appellees: Michael J. (Plaintiffs). Eckhardt, Appellees Krampner and Ian K. Krampner, Sandefer of No. S-10-0221. Associates, Fuller & Casper, Wyoming. Ar- gument by Mr. Sandefer.
Supreme Court Wyoming. KITE, C.J., GOLDEN, HILL, Before March VOIGT, BURKE, JJ. GOLDEN, Justice. County
[T1] Laramie School District (District) Number appeals One from the dis- summary trict court's judgment in favor of Cheyenne Inc., Newspapers, Wyoming d/b/a Eagle, Tribune and D. Reed Eckhardt (Newspaper). parties agreed As the that no genuine existed, issues of material fact district court ruled as a matter of law that Wyoming Act, Public Wyo. Records Stat. (LexisNexis §§ Ann. through 16-4-201 -205 2009), conjunction read in provision with a Act, the Wyoming Wyo. Education Stat. Ann. (LexisNexis § 2009), enti- Newspaper tled to information concerning the names and salaries of the individual em- ployees of District. Having appeal reviewed this under
our standard summary of review for judg ments, Schroth, Bangs 20, 120, 2009 WY (Wyo.2009), 201 P.8d 451-52 we now affirm the district summary judgment court's in favor Newspaper. The district court explained well-organized its decision in a *10 thoughtful most August decision letter dated