[¶ 45] I respectfully dissent. I agree with all the majority has to say in ¶¶ 1-43. However, I do not agree with the majority's conclusions in ¶¶ 42-45, and most especially its decision to affirm the Medical Commission's order that Moss was not eligible for permanent disability benefits, as well as the district court's order affirming that decision.
[¶ 46] In the case In re Nagle, 2008 WY 99, ¶ 11, 190 P.3d 159, 164-66 (Wyo. 2008) we summarized the law applicable to the odd lot doctrine:
In addition, we are called upon to review this case in light of the odd lot doctrine:
. . . This court has long recognized the odd lot doctrine with respect to permanent total disability determinations made within the purview of the Wyoming Worker's Compensation Act. In the case of Schepanovich v. United States Steel Corp., 669 P.2d 522, 525 (Wyo. 1983) this court stated:
In our opinion in Cardin v. Morrison-Knudsen, Wyo., 603 P.2d 862 (1979), this court adopted a definition of the "odd-lot doctrine" as follows:
". . . The `odd-lot doctrine' is described in 2 Larson, Law of Workmen's Compensation, § 57.51 at p. 10-109 (1976), as providing that permanent total disability `may be found in the case of workers who, while not altogether incapacitated for work, are so handicapped that they will not be employed regularly in any well known branch of the labor market'" 603 P.2d at 863-864.
An injured workman who comes within the "odd-lot doctrine" need not *Page 13 show that he is totally incapable of doing any work at all in order to be entitled to an award for permanent total disability. E.R. Moore Co. v. Industrial Commission, 71 Ill.2d 353, 17 Ill.Dec. 207, 376 N.E.2d 206 (1978); Wilson v. Weyerhaeuser Company, 30 Or.App. 403, 567 P.2d 567 (1977); and 2 Larson, Workmen's Compensation Law, § 57.51, at 10-164.21 (1982). This court has stated the proposition in this fashion:
". . . The theory of counsel for the employer appears to be that the workman must go further than to show that he cannot do any hard work; that he must also show that he cannot do light work. Of course, it would almost be impossible, in many instances, for a man educated only to do hard work, to show that at some time or other some good Samaritan might not turn up and offer him some light work which he might be able to do. The law does not require impossibilities. It is stated in 71 C.J. 1071 that `where it is found that the employee is permanently and totally disabled so far as hard or manual work is concerned, but that he might do light work of a special nature not generally available, the burden is on the employer to show that such special work is available to the employee.' . . ." In re lies, 56 Wyo. 443, 452, 110 P.2d 826 (1941).
This court went on further to enunciate inSchepanovich, at 528:
The burden of proof initially is assigned to the injured workman who is seeking to qualify as permanently totally disabled under the "odd-lot doctrine" to demonstrate that he is incapacitated "from performing any work at any gainful occupation for which he is reasonably suited by experience and training." Section 27-12-405(a), W.S.1977; Cardin v. Morrison-Knudsen, supra. The test to be invoked is whether the workman is so disabled that the services which he is reasonably equipped to perform by his experience and training are not marketable in a well-known branch of the labor market in the community so as to provide a steady and continuous source of income rather than sporadic or intermittent employment. See 2 Larson, Workmen's Compensation Law, § 57.51 (1982). If that showing is made, the burden of proof is then shifted to the employer to show that light work of a special nature which the employee could perform but which is not generally available in fact is available to the employee. In re Iles, supra; Cardin v. Morrison-Knudsen, supra.
Finally, this court adopted the following rule formulated in 2 Larson, Workmen's Compensation Law, § 57.61, at 10-164.95 to 1-164.114 (1982) through its opinion inSchepanovich, at 528-29:
". . . If the evidence of degree of obvious physical impairment, coupled with other facts such as the claimant's mental capacity, education, training, or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant. Certainly in such a case it should not be enough to show that claimant is physically capable of performing light work, and then round out the case for noncompensability by adding a presumption that light work is available. . . .
"The corollary of the general-purpose principle just stated would be this: If the claimant's medical impairment is so limited or specialized in nature that he is not obviously unemployable or relegated to the odd-lot category, it is not unreasonable to place the burden of proof on him to establish unavailability of work to a person in his circumstances, which normally would require a showing that he has made reasonable efforts to secure suitable employment. . . ."
Other jurisdictions in this context have held that an employee in circumstances similar to those of the appellant *Page 14 must show that reasonable efforts have been made to obtain suitable employment in order to meet their burden of proof and shift the burden of proof to the employer. Wiedmaier v. Industrial Commission, 121 Ariz. 127, 589 P.2d 1 (1978); Oliver v. Wyandotte Industries Corporation, Me., 360 A.2d 144 (1976); Marez v. Kerr-McGee Nuclear Corporation, 93 N.M. 9, 597 P.2d 1178 (1978) (Sutin, J., specially concurring); Haines v. State Accident Insurance Fund, 27 Or.App. 793, 558 P.2d 367 (1976); Shealy v. Algernon Blair, Inc., 250 S.C. 106, 156 S.E.2d 646 (1967). See also cases cited in 2 Larson, Workmen's Compensation Law, § 57.61 at 10-164.114, n. 29 (1982).
. . . .
In § 27-14-102(a)(xvi) (Lexis 1999) there appears a definition of permanent total disability, which reads as follows:
Vaughan v. State ex rel. Workers' CompensationDivision, 2002 WY 131, ¶¶ 8-12, 53 P.3d 559, 562-63 (Wyo. 2002). [Emphasis added.](a) "Permanent total disability" means the loss of use of the body as a whole or any permanent injury certified under W.S. 27-14-406, which permanently incapacitates the employee from performing work at any gainful occupation for which he is reasonably suited by experience or training.
The claim of Vaughan that he is totally disabled is presented under the phrase relating to a condition which "permanently incapacitates the employee from performing work at any gainful occupation for which he is reasonably suited by experience or training." It is of significance that the legislature specifically used the words "gainful occupation" in this definition which suggests its concurrence with those policy considerations utilized previously by this court in support of the adoption of the odd lot doctrine. In fact, this court has previously recognized the statutory definition for permanent total disability is consistent with the odd lot doctrine. Gilstrap v. State ex rel. Workers' Compensation Div., 875 P.2d 1272, 1274 (Wyo. 1994) (citing City of Casper v. Bowdish, 713 P.2d 763, 765 (Wyo. 1986) and Cardin v. Morrison-Knudsen, 603 P.2d 862, 863-64 (Wyo. 1979)).
[¶ 47] The majority concludes that the evidence introduced by the Division from Dr. Kaplan, Dr. Clyde, and Dr. Newton constituted "sufficient evidence" to refute Moss's evidence to the effect that he could not perform even light duty work because he could not stand or sit for more than 30-60 minutes without then having to lie down to get relief from his pain. The majority asserts that the Division also came forward with evidence that there was light duty work available to Moss in his community that met Moss's needs. The Medical Commission decided that Moss's job search was a sham because he conceded that he was doing as instructed, even though he "knew" he was not capable of performing the jobs for which he was applying.
[¶ 48] I begin my analysis by noting a series of principles and circumstances that must be viewed as determinative in this case. I would reject the Medical Commission's determination that there is work available that is within Moss's physical limitations (which, of course, includes the facts that he is walking around with what is essentially a broken back, the level of pain that he experiences almost constantly, and the anxiety and depression that is ancillary to that pain, and his inability to "work" and earn a living). The evidence offered by the Division was not the sort of evidence that "a reasonable mind would accept as adequate to support a conclusion." The majority has already rejected most of the Medical Commission's findings that negatively impacted Moss's case. That circumstance leads me to view with distrust this final finding made by the Commission, which now must bear the entire weight of the final decision to deny Moss the benefits at issue here.
[¶ 49] We noted in both the Nagle case andTarraferro v. State ex rel. Wyoming Medical Com'n,2005 WY 155, 123 P.3d 912 (Wyo. 2005) case that medical science has very few reliable tools which can accurately assess the presence or severity of pain. Nagle, 190 P.3d at 159 (and see fn. 1); also see *Page 15 Ann K. Wooster, Annotation, Standard and Sufficiency ofEvidence When Evaluating Severity of Claimant's Pain in SocialSecurity Disability Case Under § 3(a)(1) of Social SecurityDisability Benefits Reform Act of 1984,42 U.S.C.A. § 423(d)(5)(A), 165 A.L.R. Fed. 203, §§ 1-8, 10, 38 (2000 and Supp.2008-2009); Alec Berezin, Thresholds of Pain, 8 Am.Jur. P.O.F.3d 91 (1990 and Supp. 2009); I.J. Schiffres, Annotation, Pain as "Disability" Entitling Insured toDisability Benefits Under § 103 of the Social Security Act(42 USC § 423), 23 A.L.R.3d 1034 (1969 and Supp. 2009); 4 Larson's Workers' Compensation Law, § 83.07 (Pain as a Factor in Disability Determinations) (2009).
[¶ 50] I note, as well, that we have held that the testimony of an injured worker alone is sufficient to prove injury. Ikenberry v. State ex rel. Wyo. Workers' Comp.Div., 5 P.3d 799, 803 (Wyo. 2000). Moreover, I think our cases bear out over the years that treating physicians should be credited with having the most comprehensive knowledge of the injured worker's condition, although that is not to say that independent medical examinations cannot be useful for some limited purposes. I would also note that the Medical Commission declined to give any weight to the Social Security Administration's (SSA's) decision to award Moss disability benefits. While Wyoming's worker's compensation scheme and the SSA's disability process constitute two different sources of insurance benefits for injured workers, I deem it more demonstrative of a social/political bias, than a "finding of fact," for the Medical Commission to wholly ignore the processes of the SSA. The Medical Commission should at least have had the good sense to acknowledge that SSA disability determinations are made after what can only be described as an onerous testing process and such determinations cannot be blithely cast aside as irrelevant. To disagree with facts after diligent study is one thing; to simply ignore them because they pose a very significant hurdle to the Medical Commission's desired result is another.
[¶ 51] The Division has brought to bear an unusually large cadre of experts in its attempt to dispute Moss's claims, and the evidence provided by his treating physicians (claims of chronic, debilitating pain, anxiety and depression, and what amounts to a broken back). Both the Medical Commission, and the Division's experts, relied on some surreptitious videotaping of Moss's activities (although the snippets of film shed light on less than an hour's worth of Moss's life). The Medical Commission, and at least one of the experts hired by the Division, misused that evidence to a degree that can only be considered maliciously irresponsible. For instance, at the top of page 16 of its findings (¶ 0), the Commission interpreted a piece of the film as showing Moss "sprinting up a flight of stairs at his home." Moss did not "sprint," although he moved at a brisk walk, but there were only two steps involved, from his yard to a small porch that led to the door of his mobile home. Moss is said to repeatedly bend, stoop and squat in the video, when in fact he bends slightly forward a few times, apparently to pick up small pieces of debris from the area he is watering with a hose. It was contended that Moss picked up a heavy piece of material (plywood?) and lifted it with ease onto an outbuilding. Moss brought that item to the hearing and it was a piece of tin that he slid onto the roof of the building, from a relatively low height, using the overhang of the roof as a weight bearing surface and then sliding the 8 pound piece of tin onto the roof. Even a superficial review of the video surveillance evidence mandates a conclusion that it did nothing to support the Medical Commission's findings or the findings made in the IME reports. On the contrary, the credit given that evidence by the Medical Commission calls into question the fact-finding capacity of the Commission and its experts (¶ Y, page 21; ¶ 10, page 25).
[¶ 52] In addition to ignoring the SSA determination, and crediting the surveillance video as supporting findings that it simply cannot support, I add the following examples wherein the Medical Commission played loose and fast with the facts: (1) See pages 3-4, ¶ 4; wherein the Commission blames Moss's injury on a congenital condition, as well as on his failure to observe his pre-2003 work effort restrictions (now that his condition has worsened considerably, the Commission contends he is more physically capable now than he was before the 2003 injuries and the failed surgery with hardware removal); (2) throughout its findings the Medical Commission *Page 16 refers to exhibits which cannot be located using its citations to the record; (3) In ¶ 15, pp. 6-7, fn. 1, the Medical Commission notes that Moss "has not submitted any evidence that his impairment rating of 23% was in error." When, in fact, that is what this case is all about (Moss's condition steadily deteriorated after the date of that determination).
[¶ 53] The majority credits Bruce Y. Newton, M.D., with "hearing" Moss's subjective complaints and performing a physical examination. Dr. Newton appears to have been recruited by the Division to do a sort of last-minute IME to add to its already exiting arsenal of IME's. If, in fact, Dr. Newton did listen to Moss's complaints about his pain and give him a physical examination, little mention of it can be found in his report. Dr. Newton ends his report, conceding that he spent a total of three hours "including face-to-face time with the patient, subsequent review of a large stack of medical records, and generation of this [17 page] report." The report is largely a regurgitation of what is contained in the medical records that appear in the record on appeal, including Dr. Clyde's and Dr. Kaplan's reports. Interestingly, the first bit of "medical evidence" Dr. Newton reviewed was a "video surveillance." That piece of video is not in this record, but it apparently shows Moss involved in a labor/management dispute and he has his girlfriend's children with him. Dr. Newton noted:
I have viewed surveillance video showing James in front of a prior place of employment with a picket sign directed negatively at his employer. Most of the time he is sitting, but he is also viewed standing and walking about. In addition, two young children are recruited for the same process. One holds a sign saying, "I am hungry because of the employer," another sign indicating that "my daddy is handicapped because of this employer." No strenuous activity is observed, although one occasion he is shaking his MRI scan at cars as they drive in and out of the place of employment.
[¶ 54] In response to the first question the Division asked Dr. Newton to answer (is Moss permanently totally disabled), this is the first paragraph of his response:
The video surveillance does not necessarily give evidence one way or the other. It does give an interesting snapshot into the character of Mr. Moss, and I find it highly unfortunate that he would recruit young children into his world of bitterness and disability. Such behavior can only be detrimental to the development of a child's character and reflects the inward focus of his existence.
On that basis alone, I would disregard Dr. Newton's report in its entirety. Moreover, Dr. Newton's report is cumulative of Dr. Kaplan's report and Dr. Clyde's report. My view of those reports is that Dr. Kaplan disagreed with the treating physicians, Dr. Clyde agreed with Dr. Kaplan, and Dr. Newton, in turn, agreed with Drs. Clyde and Kaplan. I would not credit them with being three separate pieces of evidence attesting to Moss's ability to do light duty work. To the extent the Division demonstrated that light duty work was available, I would conclude that that demonstration was little more than a showing that "some good Samaritan might . . . turn up and offer him some light work which he might be able to do."
[¶ 55] In light of all these circumstances, I would apply the last of the standards of review articulated inDale. The decision of the Medical Commission was arbitrary and capricious and it should not be abided, much less affirmed. I would remand this matter to the district court with instructions that the Medical Commission's order be reversed and that this matter be further remanded to the Division with instructions that Moss be awarded the applicable permanent disability award for which he applied and to which he is entitled. *Page 17