State ex rel. Department of Workforce Services, Workers' Safety & Compensation Division v. Hartmann

2015 WY 1, 342 P.3d 377, 2015 Wyo. LEXIS 1, 2015 WL 67744
CourtWyoming Supreme Court
DecidedJanuary 6, 2015
DocketNo. S-14-0105
StatusPublished
Cited by10 cases

This text of 2015 WY 1 (State ex rel. Department of Workforce Services, Workers' Safety & Compensation Division v. Hartmann) 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
State ex rel. Department of Workforce Services, Workers' Safety & Compensation Division v. Hartmann, 2015 WY 1, 342 P.3d 377, 2015 Wyo. LEXIS 1, 2015 WL 67744 (Wyo. 2015).

Opinion

KITE, Justice.

[¶ 1] The Office of Administrative Hearings (OAH) found that David J. Hartmann failed to prove a causal link between his dizzy spells and an earlier work injury. Mr. Hart-mann petitioned for review in district court, which held that the OAH failed to apply the second compensable injury rule and its decision was not supported by substantial evidence. The district court reversed the OAH determination and remanded the case for reconsideration under the second compensa-ble injury rule.

[¶ 2] Rather than pursuing the case before the OAH, the Wyoming Workers' Safety and Compensation Division (Division) appealed to this Court claiming the district court's decision was in error. We hold that the district court's ruling was not an appeal-able order. However, we exercise our discretion to convert the notice of appeal to a petition for review. We conclude the OAH failed to invoke and apply the applicable law. We further conclude that when the applicable law is applied, the OAH decision to reject Mr. Hartmann's evidence is against the overwhelming weight of the evidence. We affirm the district court's order to the extent it held the OAH failed to apply the second compensable injury rule but reverse the order remanding the case to the OAH for reconsideration. Applying the second compensable injury rule, we hold that Mr. Hartmann was entitled to benefits. We remand to the district court for an order remanding the case to the OAH for entry of an order awarding Mr. Hartmann benefits.

ISSUES

[¶ 3] The issues we consider are:

1. Whether the district court's order is a final appealable order.
2. Whether the OAH properly applied the applicable law.
3. Whether the OAH findings and conclusions are supported by substantial evidence when the applicable law is applied.

FACTS

[¶ 4] On February 24, 2010, Mr. Hart-mann was driving a 240-ton truck at the North Antelope Rochelle Mine in the course of his employment with Peabody Powder River Services, LLC when he was struck [380]*380from behind by a shovel bucket. His testimony that the shovel bucket was large enough to hold a couple of Volkswagen Beetles was undisputed. The shovel bucket hit the headache rack, a protective steel barrier between the cab and bed of the truck. Mr. Hartmann testified that when the shovel bucket hit the truck, his body went numb, he was nearly knocked unconscious and he did not know where he was for a short time. He was taken to the emergency room where he complained of neck pain. After an x-ray and CT sean, the emergency room physician diagnosed Mr. Hartmann with cervical strain and released him to return to work with the recommendation that he follow up in three to seven days with Dr. Lawrence Jenkins, a doctor Mr. Hartmann had previously seen for symptoms related to a C5-6 dise herniation.

[¶ 5] On March 4, 2010, Mr. Hartmann saw Dr. Jenkins. Mr. Hartmann reported that he was having persistent numbness and tingling in his arms as a result of the February 24, 2010, work injury. Dr. Jenkins concluded that the injury had exacerbated the C5-6 herniation. Expressing hope that the exacerbation was temporary, Dr. Jenkins advised Mr. Hartmann to take an anti-inflammatory daily, prescribed physical therapy and asked him to return in three weeks.

[¶ 6] On April 6, 2010, Mr. Hartmann saw Dr. Kenneth Pettine. Mr. Hartmann reported at that time that his neck symptoms had gotten much worse. Upon examining Mr. Hartmann, Dr. Pettine found:

He has a 50% loss of cervical motion and pain to palpation in the paraspinal/subocei-pital area with muscle spasm present. He has a positive Spurling's compression test. He had motor weakness and sensory changes in a C6 distribution. There is minimal evidence of intrinsic shoulder/elbow pathology but no evidence of acute skin changes, distal swelling or vascular changes.1

Dr. Pettine advised Mr. Hartmann there was a 90% chance his condition would improve within three months and prescribed an anti-inflammatory.

[¶ 7] Mr. Hartmann returned to Dr. Pet-tine's office on June 8, 2010, complaining of ongoing neck pain, headaches and intersea-pular pain. Comparing a new MRI to earlier MRIs, Dr. Pettine found "a definite dise herniation at C5-6." Dr. Pettine advised Mr. Hartmann that his options were to live with his symptoms or undergo surgery. He noted that Mr. Hartmann was "quite miserable and unable to work due to his symptoms" and "anxious to proceed with an artificial dise replacement in his cervical spine in an attempt to decrease pain and increase function."

[¶ 8] At a subsequent exam in October, 2010, Dr. Pettine reported that Mr. Hart mann's neck continued to be a problem-"(hle has ongoing severe neck pain, headaches, interseapular pain and radiating arm pain." To address those issues, Dr. Pettine performed a cervical dise replacement at C5-6. Up to this point, the Division paid benefits for the treatment related to the February, 2010 neck injury.

[¶ 9] In February, 2011, a year after suffering the compensable neck injury and four months after his surgery, Mr. Hartmann began experiencing dizzy spells. His primary care physician referred him to Dr. Angelo Santiago, a neurologist and neurophysiologist. After performing a neurological exam and testing, the results of which were normal, Dr. Santiago concluded Mr. Hartmann might be suffering from benign paroxysmal positional vertigo. He referred Mr. Hart mann to Kathy Blair, a doctor of physical therapy, board certified orthopedic clinical specialist and certified vestibular therapist, for further examination and treatment.

[T10] Dr. Blair performed testing and determined that Mr. Hartmann did not have paroxysmal positional vertigo. After further testing and based upon Mr. Hartmann's history of neck problems, Dr. Blair concluded he was suffering from cervicogenic dizziness. Dr. Blair treated the condition with manual [381]*381therapy, therapeutic exercises and needle point triggering. The treatment significantly lessened Mr. Hartmann's dizziness.

[T11] In the meantime, Dr. Santiago had submitted bills to the Division for his treatment related to Mr. Hartmann's dizziness. The Division concluded Mr. Hartmann's dizziness was not related to his February, 2010, work injury and issued final determinations denying payment of Dr. Santiago's bills. Mr. Hartmann objected and requested a contested case hearing. After the hearing, the OAH Mr. Hartmann did not meet his burden of proving his dizziness was related to his February 2010 work injury. However, the OAH concluded Dr. Santiago's testing was reasonable and necessary to rule out any serious cause of the dizziness and benefits should be awarded for the treatment he provided in March of 2011.

[¶ 12] Mr. Hartmann filed a petition for review in district court. After considering the parties' respective briefs and the record, the district court reversed the OAH's decision denying benefits for treatment for dizziness after Dr. Santiago's March 2011 examinations. The district court concluded the OAH had failed to apply the second compen-sable injury rule The district court also noted that several of the OAH's findings appeared to be contrary to the overwhelming weight of the evidence. The district court remanded the case to the OAH for reconsideration of all issues under the second com-pensable injury rule. The Division appealed the district court's order to this Court.

DISCUSSION

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2015 WY 1, 342 P.3d 377, 2015 Wyo. LEXIS 1, 2015 WL 67744, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-department-of-workforce-services-workers-safety-wyo-2015.