Hart by and through Hart v. State ex rel. Department of Workforce Services, Workers' Compensation Division

442 P.3d 653
CourtWyoming Supreme Court
DecidedSeptember 7, 2018
DocketS-17-0290
StatusPublished
Cited by5 cases

This text of 442 P.3d 653 (Hart by and through Hart v. State ex rel. Department of Workforce Services, Workers' Compensation Division) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hart by and through Hart v. State ex rel. Department of Workforce Services, Workers' Compensation Division, 442 P.3d 653 (Wyo. 2018).

Opinion

KAUTZ, Justice.

[¶1] In 2014, Pete Hart1 sought permanent total disability benefits for a back injury he sustained at work in 2005. The Workers' Compensation Division (the Division) denied *655benefits, and the Medical Commission Hearing Panel (Medical Commission) upheld the Division's denial of benefits after a contested case hearing. We affirm.

ISSUES

[¶2] Mr. Hart raises two issues in this appeal:

I. The Medical Commission's Findings of Fact, Conclusions of Law, and Order was vacated and remanded for further proceedings by the District Court. The Supplemental Findings of Fact, Conclusions of Law, and Order came to the same conclusion and this time was affirmed by the District Court, although the [Medical] Commission did not take any additional evidence. Was it proper to reverse and remand, rather than simply reversing and awarding benefits, and did the supplemental order cure the inadequacies identified by the District Court in the original Order?
II. Permanent total disability is "the loss of use of the body as a whole or any permanent injury ... which ... incapacitates the employee from performing work at any gainful occupation for which he is reasonably suited ...." Pete Hart injured his back in a work accident. He continued to work but his back pain increased throughout surgery, steroid injections and pain medications. He was diagnosed with ALS [amyotrophic lateral sclerosis ] two months before he was certified for [permanent total disability.] Was the work injury the cause of [his permanent total disability]?

FACTS

[¶3] On August 24, 2005, Mr. Hart injured his back while working at Solvay Chemicals, Inc. (Solvay). The Division opened a case and thereafter approved temporary disability benefits. In April 2006, Mr. Hart was evaluated for an impairment rating by Dr. Michael Kaplan. Dr. Kaplan recognized that Mr. Hart had returned to work by this time and concluded he had a total whole person impairment rating of 12%. On May 17, 2006, the Division approved Mr. Hart's request for permanent partial impairment benefits.

[¶4] Throughout the years after his injury, Mr. Hart received treatment for his continuing back pain from Dr. Raymond Bedell. His treatment included steroid injections and the use of pain medications. Despite his back pain, Mr. Hart continued to work at Solvay as a boiler operator. Mr. Hart explained that Solvay's policy did not allow him to take his pain medication while he was working, so he would wait to take it until after his shift had ended.

[¶5] In July 2013, Mr. Hart experienced a swollen tongue and slurred speech while at work and was taken from Solvay to the emergency room at Memorial Hospital of Sweetwater County via ambulance. While the records from the emergency room visit are not in the record, it appears the emergency room staff was unable to determine the cause of Mr. Hart's condition. However, for reasons undisclosed by the record, Mr. Hart attributed his condition to a reaction to one of his pain medications (Lortab ). Mr. Hart never returned to work. Mrs. Hart testified her husband was told by his supervisor at Solvay that he was not allowed to return to work until he was "off pain medication."

[¶6] Mr. Hart continued his back treatment with Dr. Bedell, and in October 2013, Dr. Steven Ringel at the University of Colorado Hospital diagnosed Mr. Hart with amyotrophic lateral sclerosis (ALS). On January 21, 2014, Mr. Hart submitted an application for permanent total disability benefits claiming the back injury he sustained in 2005 prevented him from working in his current position at Solvay. He claimed he could not work because his ALS increased the pain associated with his back injury and he must continuously take pain medication. He explained Solvay's policy prevented him from taking pain medication before or during his shift. Mr. Hart attached a certification from Dr. Bedell that identified Mr. Hart's physical complaints that prevented him from returning to work as: "ALS, failed back, DDD, sciatica."2

*656[¶7] After receiving his application, the Division referred Mr. Hart to Dr. Kaplan for an independent medical examination. Dr. Kaplan noted that at the time of the examination (May 2014), Mr. Hart suffered a right foot drop and drooling, had lost his ability to speak, and was using a feeding tube, all of which were attributable to ALS. Dr. Kaplan concluded: "Mr. Hart's current disability status, from the standpoint of an inability to return to his previous level of participation in the work setting, stems more from the recent development of ALS than from injury residual." Dr. Kaplan further stated: "In my opinion, if it were not for the ALS, [Mr. Hart] may have been able to manage his normal work duties, with chronic pain medications and injections continuing, as that was a successful regimen / pattern over the years." On June 10, 2014, the Division relied on Dr. Kaplan's report and denied Mr. Hart's request for permanent total disability benefits, determining Mr. Hart could not return to work because of ALS and not his back injury. Mr. Hart objected to the Division's determination. The Division referred the matter to the Medical Commission under Wyo. Stat. Ann. § 27-14-601(k)(v) (LexisNexis 2017).

[¶8] Mr. Hart and Dr. Bedell both died before the Medical Commission could conduct a hearing on this matter. Unfortunately, they were not deposed before they died. At the hearing, Mrs. Hart testified about her husband's back injury in 2005, his subsequent treatment, and the fact that he had thereafter returned to work. However, Mrs. Hart did not know how often or when Mr. Hart would use his pain medications and she did not know if he used them at work. Mrs. Hart also testified Dr. Bedell had suggested that Mr. Hart apply for permanent total disability benefits due to his back injury approximately two to three years before he actually submitted his application. Based upon Mrs. Hart's testimony and the medical records submitted to the Medical Commission, Mr. Hart argued he was entitled to total permanent disability benefits under the odd lot doctrine.3

[¶9] Dr. Kaplan did not testify at the hearing, but Mr. Hart submitted the transcript of Dr. Kaplan's deposition taken a year earlier. Dr. Kaplan testified consistently with the report from his 2014 independent medical examination of Mr. Hart. He agreed that Mr. Hart was unable to return to his position at Solvay but stated the reason for that permanent incapacitation was due to ALS and not the back injury. He also testified there is no correlation between a back injury and a progressive nerve degenerative disease like ALS.

[¶10] After considering Mrs. Hart's testimony, Dr. Kaplan's deposition and report, and the medical records, the Medical Commission concluded Mr. Hart had not established his inability to return to work was related to his back injury. The Medical Commission stated it gave great weight to Dr. Kaplan's independent medical examination, but also found Mrs. Hart's testimony credible. It also noted that certain aspects of Dr. Bedell's certification could not be clarified due to his death. Mr. Hart appealed the decision to the district court.

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442 P.3d 653, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hart-by-and-through-hart-v-state-ex-rel-department-of-workforce-services-wyo-2018.