[¶ 46] I respectfully dissent because I do not believe the Medical Commission had jurisdiction *Page 495 to decide this case. The case contains no medically contested issues and, in any event, was not properly referred to the Medical Commission. The Medical Commission therefore had no jurisdiction to decide this case, and this appeal should be dismissed.
[¶ 47] From a medical perspective, I see no disputed complex medical facts. Indeed, one need only review the majority opinion's discussion on the sufficiency of the evidence to appreciate that the only evidentiary issue in this case was Mr. McIntosh's credibility. Simply because the Medical Commission judged Mr. McIntosh's credibility primarily by the history he gave to the various physicians he consulted about his back pain does not make this hearing medically contested. The Medical Commission's ultimate denial of benefits did not depend on any medical information in the medical records, but rather on the factual history given by Mr. McIntosh contained in those records.
[¶ 48] The majority opinion, in paragraph 36, gives great significance to Dr. Bender's paper review in determining that the hearing involved "conflicting medical testimony requiring application of medical judgment to complex medical facts." I fail to discern any conflicting medical testimony. It was uncontested that Mr. McIntosh's spine showed signs of degenerative changes. The contradiction in the evidence presented by Dr. Beer and Dr. Bender was one of general fact.
[¶ 49] Dr. Bender, in his paper review, focused on inconsistencies in Mr. McIntosh's reporting of the mechanics and immediate severity of the back injury to various doctors visited in the aftermath of his alleged work injury. These inconsistencies led Dr. Bender to question Mr. McIntosh's credibility. For instance, at one point Dr. Bender opines that he has "deep concern about the change in [Mr. McIntosh's] report of the mechanism of injury between the time he saw Dr. Yost and the time that he filled out his Employee Report of Injury Form on 09/18/03."2 Relying on the inconsistencies, and in particular Mr. McIntosh's early reports that he did not remember an exact incident leading to the back pain, Dr. Bender expressed skepticism as to whether Mr. McIntosh's herniated disc could be related to any specific work activity. Ultimately, all Dr. Bender concluded from his paper review was that "it is just as likely that [Mr. McIntosh] developed symptoms simply as a result of the natural progression of his [underlying degenerative condition] as it is his work activities which by his own description were not in and of themselves likely to cause any of the abnormalities noted on his MRI scan."
[¶ 50] This conclusion in no way contradicted the testimony of Dr. Beer. Dr. Beer acknowledged the degenerative changes to Mr. McIntosh's spine and that his current symptoms could be caused by any number of factors. Dr. Beer testified, however, that the reason he attributed the injury to the work-related incident was because he believed Mr. McIntosh's version of the events leading to the injury, including Mr. McIntosh's statement that he had no prior back injury and no history of back pain prior to the work incident. This testimony was discounted by the Medical Commission not on any medical basis. It was discounted based on a finding that Mr. McIntosh had given Dr. Beer an inaccurate history. This finding, in turn, is based of course on the Medical Commission's disbelief of Mr. McIntosh. There simply were no medically contested issues, leaving the Medical Commission with no jurisdiction to decide the case.
[¶ 51] Procedurally, there is an even bigger problem. Prior to the hearing, Mr. McIntosh questioned the burden of proof. Which party bears the burden of proof is strictly a question of law. Dan's Supermarket v. Pate, 2001 WY 104, ¶ 8,33 P.3d 1121, 1124 (2001). As this Court has made clear, the Medical Commission does not possess the expertise to answer questions of law. Jacobs v. State ex rel., Wyoming MedicalComm'n, 2005 WY 104, ¶ 12, 118 P.3d 441, 445 (2005);French v. Amax Coal West, 960 P.2d 1023, 1030 (Wyo. 1998). The error in the Medical Commission's attempt to answer this question *Page 496 of law was magnified in this case because the Medical Commission did not address the question except in its final order. There is an obvious due process problem with having a claimant enter a hearing without knowing whether he bears the burden of proof. Answering the legal question was a prerequisite to holding the hearing and could have been answered only by the OAH. Because of the magnitude of this legal question, even had there been medically contested issues in this case, I suggest that this legal question was primary, placing jurisdiction with the OAH and not the Medical Commission.
[¶ 52] Finally, I am concerned about the process by which the case was referred to the Medical Commission. The Division statutorily is charged with referring the case either to the Medical Commission or the OAH in the first instance. Should the Division refer a case to the Medical Commission, the Medical Commission must then evaluate the case on a continuing basis to ensure the issue(s) involved is primarily a medically contested issue(s). If at any time it appears that the primary issue(s) is not medically contested, the Medical Commission must return the case to the Division. See generally Birkle v. State ex rel.Wyoming Workers' Safety and Comp. Div., 2007 WY 9,150 P.3d 187 (2007); Jacobs; French.
[¶ 53] The majority opinion, in paragraph 39, asserts that upon a referral from the Division to the Medical Commission, the Medical Commission has jurisdiction to decide all issues related to those identified in the hearing request. Unless the statements to this effect are intended to directly overrule this Court's decisions in Birkle; Jacobs; French; andRussell v. State ex rel. Wyoming Workers' Safety and Comp.Div., 944 P.2d 1151 (Wyo. 1997), they are far too broad. Although administrative review is not available to the parties to challenge the Division's referral, that does not remove the statutory restraints on the Medical Commission's subject matter jurisdiction. French, 960 P.2d at 1029 (referral by Division does not override statutory jurisdictional limitations.) Because the majority does not express an intent to overrule established case law, and because the majority opinion concedes that the Medical Commission's subject matter jurisdiction is limited to medically contested cases in other portions of the opinion, I construe the majority opinion's statements to have simply omitted certain jurisdictional exceptions.
[¶ 54] Should the Division initially refer the case to the OAH, the OAH has the option of seeking the advice of the Medical Commission or even transferring the case directly to the Medical Commission. By statute, however, the OAH cannot refer out an issue or the entire case without consent of all parties. Wyo. Stat. Ann. § 27-14-616(e) (LexisNexis 2005).
[¶ 55] In this case, the Division initially referred the case to the OAH, which almost immediately, and with no further information, referred the case to the Medical Commission. The referral contravened the statute in several respects. First, obviously the OAH ignored the Division's determination as to the appropriate initial referral, effectively cutting the Division out of this step of the referral process. Second, the OAH referred the case to the Medical Commission because it determined it had no jurisdiction over "medically contested" cases. This is an odd determination since the pertinent statute and case law affirmatively state that the OAH has such jurisdiction. French, 960 P.2d at 1029. Seegenerally Russell.
[¶ 56] Finally, the record contains no indication that, prior to the referral, the parties were contacted or consented to the same. I believe this renders the referral void. Section27-14-616(e) serves a serious purpose. The parties, especially at the early stages of a proceeding, know their case better than the OAH. Their input on the issues to be decided, and which tribunal is best situated to decide them, can be critical.
[¶ 57] I disagree with the majority opinion that record silence equals consent. The agreement of all parties is a statutory pre-requisite to referral by the OAH. As such, the parties' consent should be reflected in the record. At the very least the referral order should state that the OAH has received the consent of the parties to the referral. This is necessary for the Medical Commission to determine whether it can accept the referral *Page 497 because, without the consent of the parties, the OAH exceeds its statutory authority in referring the case. I believe that is exactly what happened in this case — the OAH exceeded its statutory authority rendering its referral of the case to the Medical Commission void.
[¶ 58] The doctors who comprise the Medical Commission are paid by the State for their medical expertise. It is a waste of the doctors' time and medical expertise, as well as state money, for them to be called upon to determine questions of non-medical fact. I believe the statute means exactly what it says-and what this Court has consistently construed it to mean — that a case should only go before the Medical Commission if it is a medically contested case. Birkle; Jacobs; French. In this case, the nature of Mr. McIntosh's injury was not determinative of whether or not the injury was work-related. The medical expertise of the panel was not required and should never have been invoked.
[¶ 59] The Medical Commission is a welcome addition to the Workers' Compensation hearing process, but it is simply that — an addition. It is not a substitute for the OAH. It has always been the function of the OAH to determine questions of fact and law and the OAH should not be allowed to abrogate its duty with such seeming total indifference to legislative intent.