In the Matter of the Worker's Compensation Claim Of: David Green v. State of Wyoming, Ex Rel., Department of Workforce Services, Workers' Safety and Compensation Division
Docket: S-12-0238
Court: Wyoming Supreme Court; July 9, 2013; Wyoming; State Supreme Court
David Green sustained a work-related lumbar spine injury in 2004 and initially received workers’ compensation benefits. After surgery and achieving maximum medical improvement in 2005, he was awarded a 21% whole body permanent partial impairment (PPI). In 2010, experiencing increased back pain, Green underwent another surgery and received temporary total disability (TTD) benefits. Following this surgery, he was assessed and given a new PPI rating of 7%.
Since this new rating was lower than the previous one, the Wyoming Workers’ Compensation Division denied any additional PPI benefits beyond the initial 21%. Green appealed to the Wyoming Medical Commission, which upheld the Division's decision, leading to a subsequent affirmation by the district court.
On appeal, Green contends that the Commission's ruling was legally flawed, lacked substantial evidence, and was arbitrary and capricious. The issues presented for review include whether the Hearing Panel misapplied Wyoming Statute 27-14-405 (f) and (g) in denying further PPI benefits and whether the decision was supported by substantial evidence.
The facts indicate that Green's injury was diagnosed as an L4-L5 disc herniation with severe radiculopathy and that his treating physician noted underlying conditions complicating his recovery.
In 2005, following a lumbar fusion surgery in 2004 and hardware removal in 2005, Dr. Jenkins reported that Green had ascertainable loss and was eligible for Permanent Partial Impairment (PPI) benefits. Dr. Michael Kaplan conducted an independent examination and rated Green’s impairment at 21% whole person impairment, attributing this to a work-related lumbosacral spine injury, diagnosed as bilateral L4 spondylolysis with symptomatic instability and painful disc syndrome. Kaplan indicated that Green's surgical fusion from L4 to S1 was modified due to anatomical anomalies and noted that Green was generally satisfied with his condition despite some stiffness.
On November 4, 2005, the Division issued a Notice of Permanent Partial Impairment Rating, determining the award for Green at $15,002.34, which he accepted on November 7, 2005. In July 2010, Green reported worsening back and leg pain to Dr. Jenkins, whose MRI findings indicated a bulging disc and moderate stenosis. Dr. Jenkins diagnosed Green with post-fusion syndrome and junctional stenosis. Consequently, Green underwent surgery in October 2010, which included multiple procedures to address the issues. The Division acknowledged that this surgery was related to Green’s original work injury and provided him with medical and Temporary Total Disability (TTD) benefits. On March 14, 2011, the Division requested an evaluation from Dr. Jenkins for a review of the final determination, which neither party disputed.
On May 4, 2011, Dr. Anne MacGuire conducted an independent medical examination of Green to determine his permanent impairment (PPI) rating, concluding a whole body impairment of 7% based on a three-level lumbar spine fusion for spinal stenosis, following the AMA Guides. Dr. MacGuire categorized Green's condition under class I for motion segment lesions and degenerative spondylolisthesis, assigning a default rating of 7%.
On June 20, 2011, the Division issued a Final Determination of Permanent Impairment, confirming the 7% rating and denying Green additional benefits due to his prior 21% rating. Green contested this rating, prompting a referral to Dr. Ricardo Nieves for a second evaluation, who assigned a 6% whole body impairment rating, stating that Green had reached maximum medical improvement related to his work injury.
On October 3, 2011, the Division issued a second final determination based on Dr. Nieves's assessment, again denying additional PPI benefits as the new rating was lower than the previously awarded 21%. Green objected, leading the Division to refer the dispute to the Commission for a hearing. Following an evidentiary hearing on February 17, 2012, the Commission upheld the Division's determination, which the district court later affirmed. Green subsequently filed a timely appeal to the Court.
In an appeal from a district court's review of an administrative decision, the reviewing court assesses the case as if it originated from the administrative body, without giving special deference to the district court's ruling. This process is governed by the Wyoming Administrative Procedure Act, which mandates that the court address all pertinent legal questions, interpret constitutional and statutory provisions, and assess the applicability of agency actions. The court must review the entire record or relevant parts cited by the parties, considering the rule of prejudicial error. The court can compel agency action that has been unlawfully withheld or delayed, and may invalidate agency actions if they are found to be arbitrary, capricious, an abuse of discretion, contrary to law, beyond statutory authority, procedurally flawed, or unsupported by substantial evidence.
The substantial evidence standard is applied to review an agency's factual findings, defined as relevant evidence that a reasonable mind could accept as sufficient to support a conclusion. Findings are deemed supported if a rational basis can be discerned from the evidence in the record. The arbitrary and capricious standard serves as a safeguard against agency actions that harm a party's substantial rights when they do not fit neatly into other review standards. It is invoked if an agency improperly excluded admissible evidence or failed to provide necessary findings or conclusions. Legal conclusions by an agency are reviewed de novo, with affirmation only if they comply with the law.
In the specific case regarding the denial of additional permanent partial impairment (PPI) benefits, the Commission determined that an additional surgery did not inherently result in a greater permanent impairment rating, as its purpose was to alleviate pain rather than increase impairment under the AMA Guides, 6th edition.
Dr. MacGuire and Dr. Nieves considered Green's October 2010 surgery when assessing his impairment ratings, which utilized the AMA Guides 6th edition's whole person approach. According to these guides, physicians must evaluate the current impairment state based on the latest criteria, especially if prior ratings were issued under earlier editions. Green did not present evidence at the hearing to contest the accuracy of the ratings from Dr. MacGuire (7%) and Dr. Nieves (6%), and he argued that the Division incorrectly compared these ratings to a 2005 rating from Dr. Kaplan (21%), leading to a determination of no increase in his PPI award.
Green contested the Commission's decision to deny additional PPI benefits as being unlawful, unsupported by substantial evidence, and arbitrary. He argued that different impairment ratings from various editions of the AMA Guides should not offset or reduce awards due to previous PPI ratings. Additionally, he claimed entitlement to a separate PPI award for a second compensable injury to a different body part. Both arguments were rejected, as they lacked support from relevant statutes and prior court rulings. Wyoming Statute Ann. 27-14-405 outlines that an injured employee's impairment rating must be based on the most recent AMA Guides edition, with awards calculated based on the percentage of impairment multiplied by sixty months.
Wyo. Stat. Ann. 27-14-405 (g) mandates that a physician assess an injured employee's impairment based on the most recent edition of the AMA Guides available at the time of the employee's ascertainable loss. This interpretation was upheld in Anderson v. State ex rel. Wyo. Workers’ Safety & Comp. Div., emphasizing that the rating must reflect the latest edition at the time of the loss. The Workers’ Compensation Act prohibits double recovery of benefits, necessitating that any subsequent impairment rating for the same body part be offset by any earlier rating. This principle was reinforced in cases such as State ex rel. Wyo. Workers’ Safety & Comp. Div. v. Singer and Taylor v. State ex rel. Wyo. Workers’ Safety & Comp. Div., confirming that comparison of different impairment ratings is required to avoid double recovery.
The court rejected Green's argument that impairment ratings from different editions of the AMA Guides cannot be compared, stating that it is common for a new edition to be released by the time an injury necessitates additional evaluation. This was exemplified in Anderson, where the court upheld the denial of PPI benefits based on comparing ratings from the 5th and 6th editions of the Guides. In that case, despite challenges regarding the reliability of the 6th edition, the court maintained that the legislature intended for the most recent edition to be used, which was indeed the 6th edition at the time of Mr. Anderson's maximum medical improvement. The Office of Administrative Hearings' decision to rate his PPI according to the 6th edition was thus deemed lawful.
The Court has determined that any alleged deficiencies in the ratings from the most recent edition of the AMA Guides do not justify disregarding the legislative requirement to use this edition for calculating impairment ratings, as outlined in Wyo. Stat. Ann. 27-14-405(g). The statute does not permit the use of earlier editions, and the Division acted lawfully in offsetting Green's lower back impairment ratings from the 5th and 6th editions and denying additional Permanent Partial Impairment (PPI) benefits based on that offset.
Regarding Green's argument for separate PPI awards for impairments to different body parts, the Court referenced its prior analysis on how physicians should use the AMA Guides. The Guides require physicians to individually rate each impairment and combine them for a whole person impairment rating, taking into account various criteria. While the Court agreed that separate awards for different body parts should not be offset, it found that the evidence did not support Green's claim that his current impairment rating pertains to a different body part from his previous award.
Green does not contest the accuracy or basis of the impairment ratings provided by Dr. Kaplan in 2005 or by Drs. MacGuire and Nieves in 2011, which all pertain to the same body part—the lumbosacral spine. Dr. Kaplan's 2005 rating was based on Green's 2004 work injury resulting in a two-level fusion from L4 to S1. The 2011 ratings from Drs. MacGuire and Nieves considered both the initial 2004 injury and subsequent fusions, including a three-level fusion that encompassed the earlier surgeries. Both evaluations addressed the same body part, allowing the Division to lawfully compare and offset the two ratings. Green argues that the Commission’s decision lacks substantial evidence and is arbitrary, contending that it is illogical for a claimant who undergoes additional spinal surgery to be deemed to have a lesser impairment. He requests the Court to reverse the Commission's decision and award him either the 7% or 6% permanent partial impairment rating previously assigned.
Green claimed entitlement to an additional PPI award of 6-7% beyond what he had previously received. This claim was rejected due to lack of evidence supporting his assertion of a greater permanent impairment than the 21% rating awarded in 2005. The Commission found he did not meet his burden of proof. The legal principle established is that the burden lies with the claimant to prove the essential elements of their claim by a preponderance of the evidence. This standard was reinforced by referencing similar cases, which clarify that it is not the Division's responsibility to substantiate the claimant's rating but rather the claimant's obligation to demonstrate entitlement to a higher rating.
In a parallel case, Himes argued against a 5% PPI rating for her cervical spine, asserting it lacked substantial evidence. However, her argument failed to recognize her responsibility to prove the need for a higher rating. The contested hearing was meant for her to establish the extent of her permanent impairments linked to her work injury, which she did not accomplish.
Consequently, the Commission’s refusal to increase Himes' PPI rating was upheld as she did not prove her claims. Similarly, Green's assertions that the Commission's decision was arbitrary and unsupported by substantial evidence were also rejected, as he did not demonstrate a higher impairment due to subsequent surgery. The Commission’s denial of Green’s request for an increased PPI rating was affirmed based on these grounds.
