IN THE SUPREME COURT, STATE OF WYOMING
2022 WY 81
APRIL TERM, A.D. 2022
June 27, 2022
ANTHONY HART,
Appellant
(Petitioner),
v.
S-21-0256
STATE OF WYOMING, ex rel.
DEPARTMENT OF WORKFORCE
SERVICES, WORKERS’
COMPENSATION DIVISION,
Appellee
(Respondent).
Appeal from the District Court of Campbell County
The Honorable Stuart S. Healy III, Judge
Representing Appellant:
Corrie Lynn Lamb, Barney & Graham, LLC, Gillette, Wyoming.
Representing Appellee:
Bridget Hill, Wyoming Attorney General; Mark Klaassen, Deputy Attorney
General; Peter F. Howard, Senior Assistant Attorney General; Holli J. Welch,
Senior Assistant Attorney General.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne,
Wyoming 82002, of typographical or other formal errors so correction may be made before final
publication in the permanent volume.
KAUTZ, Justice.
[¶1] After a contested case hearing, the Wyoming Medical Commission (Medical
Commission) upheld the Wyoming Workers’ Safety and Compensation Division’s
(Division) denial of coverage for Anthony Hart’s thoracic spine treatment, and the district
court affirmed. Mr. Hart claims the Medical Commission’s decision was not supported by
the hearing evidence. We affirm.
ISSUES
[¶2] The issues on appeal are:
1. Was the Medical Commission’s decision that Mr. Hart did not prove his
thoracic spine injury was caused by his work-related accident supported
by substantial evidence?
2. Was the Medical Commission’s decision that treatment for Mr. Hart’s
thoracic spine injury was not compensable under the “rule out doctrine”
supported by substantial evidence?
FACTS
[¶3] Mr. Hart was employed by Peabody Powder River Services, LLC as a production
technician at the North Antelope Rochelle coal mine near Wright. On September 17, 2017,
he was driving a haul truck which, when fully loaded, weighed 350 tons. The roads at the
mine were very rough, causing Mr. Hart to bounce “vigorous[ly]” as he drove. The truck
seat was equipped with an air shock; however, the shock was “shot” and did not work
properly. Mr. Hart injured his back when the seat “bottomed out” after hitting a bump.
[¶4] Mr. Hart filed a report of injury with the Division, stating he had injured his “back.”
He identified the location of his back injury as “L1,” referring to the vertebrae at the top of
the lumbar spine (low back). Mr. Hart sought medical treatment for “low back” pain on
September 18, 2017. After examining Mr. Hart and reviewing x-rays, a physician assistant
concluded Mr. Hart had a “lumbar strain” and recommended treatment with pain
medication, a muscle relaxer, a home exercise program, and physical therapy. The
Division issued a final determination which approved worker’s compensation benefits for
treatment of an injury to Mr. Hart’s lumbar spine.
[¶5] Mr. Hart’s lumbar spine injury initially improved, but in November 2017, his low
back pain worsened and he ceased working. An MRI of his lumbar spine showed some
mild abnormalities at the L5-S1 level, which is low on the lumbar spine, but “[e]very level
above L5 in the lumber spine [was] normal.” Mr. Hart remained off work and continued
to be treated for his lumbar spine injury over the next several months, including by
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interventional pain management specialist Todd Hammond, M.D. In early April 2018, Mr.
Hart was released to “full duty” work after he passed a “work status test” which measured
his ability to perform all physical requirements necessary to return to work at his job.
While Mr. Hart was being treated for his work-related lumbar spine injury from Fall 2017
through Spring 2018, the medical records do not contain any reports of pain in his thoracic
spine (mid-back).
[¶6] A June 4, 2018, medical record from Dr. Hammond contains the first post-accident
mention of Mr. Hart experiencing thoracic spine pain.1 Dr. Hammond treated Mr. Hart’s
thoracic spine injury with thoracic facet injections, a medial branch block, and eventually
rhizotomy (cauterization) of the sensory nerves at the T10 through T12 vertebrae levels,
which are “at the junction where the thoracic spine . . . turns into the lumbar spine.” Mr.
Hart’s thoracic spine injury improved after the rhizotomy.
[¶7] The Division issued a final determination denying Mr. Hart worker’s compensation
coverage for his thoracic spine treatment because it was not “reasonable and necessary
medical care to the 9/17/2017 worker’s compensation injury to the lumbar spine.” Mr.
Hart objected to the final determination, stating “most of back was hurting[;] I fixed what
hurt the most first.” The Division referred Mr. Hart’s case to the Medical Commission.
[¶8] After a contested case hearing, the Medical Commission upheld the Division’s
denial of coverage for Mr. Hart’s thoracic spine injury. It concluded Mr. Hart had not
proven 1) a causal relationship between “the treatment [he] received for injury to the
thoracic spine” and the “approved workplace injury to the lower back” which occurred nine
months earlier, or 2) the thoracic spine treatment was “compensable pursuant to the ‘rule
out’ doctrine.” The Medical Commission noted there was no mention in his medical
records of any thoracic spine pain until June 4, 2018, and Dr. Hammond, Mr. Hart’s treating
physician and expert medical witness, could not say to a reasonable degree of medical
probability that the thoracic spine injury originated from the September 2017 work-related
accident. Mr. Hart filed a petition for judicial review of the Medical Commission’s
decision, and the district court affirmed. He appealed to this Court.
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Evidence was presented to the Medical Commission at the contested case hearing that Mr. Hart had
received treatment to his thoracic spine in 2014 and 2015. Mr. Hart did not present any evidence or
argument at the hearing that he was entitled to benefits for treatment of a material aggravation of a pre-
existing injury to his thoracic spine, so we will not consider the matter. See generally, Hayes v. State ex
rel. Wyo. Workers’ Safety & Comp. Div., 2013 WY 96, ¶ 14, 307 P.3d 843, 847 (Wyo. 2013) (“an employee
may [be awarded worker’s compensation benefits] if his employment aggravated, accelerated, or combined
with [a preexisting] disease or infirmity to produce the condition for which compensation is sought”
(citation and some quotation marks omitted)); In re Boyce, 2005 WY 9, ¶ 11, 105 P.3d 451, 455 (Wyo.
2005) (an employee may receive worker’s compensation benefits if he presents evidence showing “the
work contributed to a material degree to the aggravation of the preexisting condition”).
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STANDARD OF REVIEW
[¶9] When an appeal is taken from a district court’s decision on review of an
administrative agency’s ruling, we examine the case as if it came directly from the agency,
giving no special deference to the court’s decision. In re Vinson, 2020 WY 126, ¶ 25, 473
P.3d 299, 308 (Wyo. 2020); Guerrero v. State ex rel. Dep’t of Workforce Servs., Workers’
Comp. Div., 2015 WY 88, ¶ 11, 352 P.3d 262, 265 (Wyo. 2015) (citing Dale v. S & S
Builders, LLC, 2008 WY 84, ¶ 8, 188 P.3d 554, 557 (Wyo. 2008)) (other citations omitted).
Wyo. Stat. Ann. § 16-3-114 (LexisNexis 2021) governs judicial review of administrative
decisions:
(c) To the extent necessary to make a decision and when
presented, the reviewing court shall decide all relevant
questions of law, interpret constitutional and statutory
provisions, and determine the meaning or applicability of the
terms of an agency action. In making the following
determinations, the court shall review the whole record or
those parts of it cited by a party and due account shall be taken
of the rule of prejudicial error. The reviewing court shall:
(i) Compel agency action unlawfully withheld or
unreasonably delayed; and
(ii) Hold unlawful and set aside agency action, findings
and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or
otherwise not in accordance with law;
(B) Contrary to constitutional right, power, privilege
or immunity;
(C) In excess of statutory jurisdiction, authority or
limitations or lacking statutory right;
(D) Without observance of procedure required by law;
or
(E) Unsupported by substantial evidence in a case
reviewed on the record of an agency hearing provided by
statute.
[¶10] In accordance with § 16-3-114(c)(ii)(E), we review an agency’s findings of fact by
applying the substantial evidence standard. Vinson, ¶ 26, 473 P.3d at 308. See also,
Camacho v. State ex rel. Dep’t of Workforce Servs., Workers’ Comp. Div., 2019 WY 92, ¶
23, 448 P.3d 834, 843 (Wyo. 2019) (“‘[T]he substantial evidence test is the appropriate
standard of review in appeals from [Wyoming Administrative Procedure Act] contested
case proceedings when factual findings are involved and both parties submit evidence.’”
(quoting Dale, ¶ 10, 188 P.3d at 558)).
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“In reviewing findings of fact, we examine the entire record to
determine whether there is substantial evidence to support an
agency’s findings. If the agency’s decision is supported by
substantial evidence, we cannot properly substitute our
judgment for that of the agency and must uphold the findings
on appeal. Substantial evidence is relevant evidence which a
reasonable mind might accept in support of the agency’s
conclusions.”
Id. (quoting Dale, ¶ 11, 188 P.3d at 558) (other citations omitted). See also, Kenyon v.
State ex rel. Wyo. Workers’ Safety & Comp. Div., 2011 WY 14, ¶ 11, 247 P.3d 845, 849
(Wyo. 2011) (“Substantial evidence means ‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” (quoting Bush v. State ex rel. Wyo.
Workers’ Comp. Div., 2005 WY 120, ¶ 5, 120 P.3d 176, 179 (Wyo. 2005)) (other citations
omitted)).
[¶11] When the Medical Commission determines “the burdened party failed to meet his
burden of proof, [the reviewing court] will decide whether there is substantial evidence to
support the agency’s decision to reject the evidence offered by the burdened party by
considering whether that conclusion was contrary to the overwhelming weight of the
evidence in the record as a whole.” Mitcheson v. State ex rel. Wyo. Workers’ Safety &
Comp. Div., 2012 WY 74, ¶ 9, 277 P.3d 725, 730 (Wyo. 2012) (citing Dale, ¶ 22, 188 P.3d
at 561). See also, Boyce v. State ex rel. Dep’t of Workforce Servs., Workers’ Comp. Div.,
2017 WY 99, ¶ 21, 402 P.3d 393, 399-40 (Wyo. 2017) (when an administrative agency
concludes a worker’s compensation claimant fails to meet his burden of proof, we decide
whether, upon review of the entire record, there is substantial evidence to support the
agency’s decision).
[¶12] Under § 16-3-114(c)(ii)(A), a court may set aside an agency decision found to be
“[a]rbitrary, capricious, an abuse of discretion or otherwise not in accordance with law[.]”
We do not use the arbitrary and capricious standard to review the sufficiency of the
evidence to support an agency’s decision following a contested case hearing. Dale, ¶ 22,
188 P.3d at 561. Rather, the standard acts as a “‘safety net to catch agency action which
prejudices a party’s substantial rights or which may be contrary to the other [Wyoming
Administrative Procedure Act] review standards yet is not easily categorized or fit to any
one particular standard.’” Dale, ¶ 23, 188 P.3d at 561 (quoting Newman v. State ex rel.
Wyo. Workers’ Safety & Comp. Div., 2002 WY 91, ¶ 23, 49 P.3d 163, 172 (Wyo. 2002))
(some quotation marks omitted). “‘We review an agency’s conclusions of law de novo[]
and will affirm only if the agency’s conclusions are in accordance with the law.’”
Middlemass v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2011 WY 118, ¶ 13, 259
P.3d 1161, 1164 (Wyo. 2011) (quoting Kenyon, ¶ 13, 247 P.3d at 849) (other citations
omitted).
4
DISCUSSION
Causation
[¶13] A claimant has the “burden of proving all of the elements” of his claim for worker’s
compensation benefits “by a preponderance of the evidence.” Trump v. State ex rel. Wyo.
Workers’ Safety & Comp. Div., 2013 WY 140, ¶ 21, 312 P.3d 802, 809 (Wyo. 2013) (citing
Mitcheson, ¶ 11, 277 P.3d at 730). “A preponderance of the evidence is ‘proof which leads
the trier of fact to find that the existence of the contested fact is more probable than its non-
existence.’” Id. (quoting Mitcheson, ¶ 11, 277 P.3d at 730, and Kenyon, ¶ 22, 247 P.3d at
851).
[¶14] Wyo. Stat. Ann. § 27-14-102(a)(xi) (LexisNexis 2021) defines a compensable
injury, in relevant part, as “any harmful change in the human organism . . . arising out of
and in the course of employment . . . .” To demonstrate the injury arose out of and in the
course of employment, the claimant must prove a causal connection between the “‘work-
related incident and the injury.’” Boyce, ¶ 22, 402 P.3d at 400 (quoting Leib v. State ex rel.
Wyo. Dep’t of Workforce Servs., Workers’ Comp. Div., 2016 WY 53, ¶ 12, 373 P.3d 420,
424 (Wyo. 2016)). See also, Vinson, ¶ 29, 473 P.3d at 309 (“For an injury to ‘arise out of
and in the course of employment,’ there must be a ‘causal nexus between the injury and
some condition, activity, environment or requirement of the employment.’” (quoting
Matter of Lysne, 2018 WY 107, ¶ 13, 426 P.3d 290, 295 (Wyo. 2018)) (quotation marks
and other citation omitted)).
[¶15] An agency’s determination of causation is a factual question. See, e.g., Boylen v.
State ex rel. Wyo. Dep’t of Workforce Servs., Workers’ Comp. Div., 2022 WY 39, ¶¶ 14-
15, 506 P.3d 765, 770 (Wyo. 2022) (applying the substantial evidence standard to review
the agency’s factual findings that the worker’s compensation claimant did not establish
causation); Vinson, ¶ 32, 473 P.3d at 310 (causation is a factual question and the agency’s
decision on whether the claimant has met his burden of proof is reviewed for substantial
evidence). When a single work-related accident is alleged to have caused an injury, the
causal connection must generally be established by medical expert testimony. Thornberg
v. State ex rel. Wyo. Workers’ Comp. Div., 913 P.2d 863, 867 (Wyo. 1996) (citing Hansen
v. Mr. D’s Food Ctr., 827 P.2d 371, 373 (Wyo. 1992)) (other citation omitted). “The
claimant must show the causal connection to a reasonable degree of medical probability.”
Guerrero, ¶ 15, 352 P.3d at 267. See also, Baker v. State ex rel. Wyo. Dep’t of Workforce
Servs., Workers’ Comp. Div., 2017 WY 60, ¶ 10, 395 P.3d 1095, 1099 (Wyo. 2017) (for a
claimant to prove a causal connection between the workplace accident and his injury, he is
generally required to provide “expert medical testimony that it is more probable than not
that the work contributed in a material fashion to the precipitation, aggravation or
acceleration of the injury” (citation omitted)).
5
[¶16] Mr. Hart claims the Medical Commission’s conclusion that he failed to meet his
burden of proving his thoracic spine injury was related to the September 2017 work
accident was arbitrary and capricious. He is mistaken about the standard of review. As we
stated above, the Medical Commission’s determination of causation was a factual question,
for which the substantial evidence standard of review applies.
[¶17] After making detailed findings of fact about the medical records and expert
testimony presented in Mr. Hart’s case, the Medical Commission concluded:
47. Mr. Hart’s injury to the thoracic spine is not well
documented. For nearly 9 months [after the workplace
accident], Mr. Hart’s medical records do not mention any pain
in the thoracic spine. On the day of the [work-related] injury,
Mr. Hart did note in his injury report that he had injured his
[“]back[”] and the location of the injury was “L1.” L1 is in the
lumbar spine. All the medical records in this matter generated
from September 18, 2017[,] . . . until June 4, 2018[,] describe
an injury to the lower back. There is no mention of any injury
to the thoracic spine. There is no mention of any pain in the
thoracic spine. The medical records do not establish causation.
48. Mr. Hart presented deposition testimony from
his treating physician Dr. Hammond. Dr. Hammond was asked
by Mr. Hart’s attorney: “[I]s there any way to essentially
correlate [Mr. Hart’s thoracic spine injury] to any specific
event or specific work injury here?” Dr. Hammond did not
“recall any specific detailed discussion” with Mr. Hart about
the injury itself. He further testified that the coding that was
used to designate the injury was for “a wear and tear related
injury[.]” Dr. Hammond testified that “it’s impossible for me
to say that specifically this occurred on one day at work.” Dr.
Hammond testified that as far as the facts surrounding the
injury that occurred on September 17, 2017, he had “little to no
recollection of that.”
(record citations omitted).
[¶18] Mr. Hart does not specifically challenge the Medical Commission’s factual findings
regarding the medical records or expert testimony. Instead, he asserts he proved his
thoracic spine injury was caused by the September 2017 work accident because he
generically listed “back” as the injured body part on the injury report he completed shortly
after the accident. He contends he injured his “whole” back at that time but did not
complain specifically about mid-back (thoracic spine) pain because he was focused on
obtaining treatment for his lower back (lumbar spine) as it “hurt the most.” He also claims
6
the fact that Dr. Hammond treated thoracic vertebrae T10 through T12, which are “pretty
much right at the junction where the thoracic spine . . . turns into the lumbar spine,”
demonstrates his thoracic spine injury was related to the workplace accident.
[¶19] We conclude there is substantial evidence in the record to support the Medical
Commission’s decision that Mr. Hart did not meet his burden of proving he injured his
thoracic spine in the September 2017 workplace accident. Mr. Hart reported to his
employer and the Division that he incurred a “back” injury at work on September 17, 2017.
Contrary to Mr. Hart’s argument on appeal, he did not generically claim he suffered a back
injury. Instead, he specifically described the location of the injury as L1, which is part of
the lumbar spine. The medical records from the day after the accident state that his “chief
complaint” was, “[m]y low back hurts.” A few days later, the Division issued a final
determination approving worker’s compensation coverage for an injury to Mr. Hart’s
“lower lumbar spine”; he did not object to the determination. The medical records show
that, over the next several months, Mr. Hart consistently complained of, and sought
treatment for, pain in his lumbar spine without any mention of pain in his thoracic spine.
In April 2018, he passed a work status test and was released to full duty work.
[¶20] The first mention of thoracic pain is found in a medical record from Mr. Hart’s
appointment with Dr. Hammond on June 4, 2018. As Mr. Hart points out, Dr. Hammond
testified he treated the area of Mr. Hart’s thoracic spine which was at the junction with the
lumbar spine. However, Dr. Hammond specifically stated he could not opine to a
reasonable degree of medical probability that Mr. Hart’s thoracic spine injury was related
to the September 2017 work accident. Consequently, Mr. Hart did not offer the requisite
expert medical testimony to establish causation. See Thornberg, 913 P.2d at 867; Hansen,
827 P.2d at 373; Baker, ¶ 10, 395 P.3d at 1098-99.
[¶21] The Medical Commission’s decision that Mr. Hart did not meet his burden of
proving a causal connection between his workplace accident and thoracic spine injury is
supported by substantial evidence as it clearly is not “contrary to the overwhelming weight
of the evidence in the record as a whole.” Mitcheson, ¶ 9, 277 P.3d at 730. See also, Dale,
¶ 22, 188 P.3d at 561; Boyce, ¶ 21, 402 P.3d at 399. The lack of medical evidence of
causation allows a reasonable mind to accept the Medical Commission’s decision that Mr.
Hart failed to meet his burden of proving the elements of his worker’s compensation claim.
Mitcheson, ¶ 9, 277 P.3d at 730; Boyce, ¶ 21, 402 P.3d at 399.
“Rule Out” Doctrine
[¶22] Mr. Hart argues the Medical Commission erred by denying coverage for his thoracic
spine evaluation and treatment because they were performed to “rule out” that area of the
spine as a cause of his work-related lumbar spine pain. He again urges us to review the
agency decision using the arbitrary and capricious standard. Given resolution of this issue
7
requires evaluation of the Medical Commission’s factual findings and the sufficiency of
the evidence presented by Mr. Hart, the substantial evidence standard of review applies.
[¶23] Under the “rule out” doctrine, “an appropriate diagnostic measure” may be
compensable if it is performed to “rule out” an area or condition as a source of the
symptoms associated with a work-related injury, even if the measure does not reveal a
causal relationship. Snyder v. State ex rel. Wyo. Workers’ Comp. Div., 957 P.2d 289, 295
(Wyo. 1998). In Snyder, the claimant fell at work, injuring his back and shoulder. Id. at
291. The back problem resolved, but the claimant was still experiencing pain in his
shoulder and tingling in his hands. Id. at 295. Mr. Snyder’s physician examined his
cervical spine and ordered x-rays of the area to determine if the claimant’s shoulder and
hand symptoms were caused by an injury to his neck from the work-related fall. Id. at 294-
95. We held the cervical exam and x-rays were covered worker’s compensation expenses
even though they revealed no such causal connection because they were performed as a
diagnostic measure for the claimant’s work-related injury, i.e., to “rule out” other medical
conditions associated with the injury. Id. at 295.
[¶24] To be compensable under the “rule out” doctrine, there must be an “‘objective
indication of a physiologic connection between the claimant’s injury and the diagnostic
measure at issue.’” Delacastro v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2014
WY 40, ¶ 25, 321 P.3d 327, 333 (Wyo. 2014) (quoting Mitcheson, ¶ 23, 277 P.3d at 734-
35). If the evidence does not demonstrate the tests were performed to diagnose the work-
related injury, the claimant is not entitled to worker’s compensation benefits. Price v. State
ex rel. Wyo. Workers’ Safety & Comp. Div., 2011 WY 160, ¶¶ 11-14, 266 P.3d 940, 943-
44 (Wyo. 2011) (MRI was not performed to “rule out” a cervical spine injury as a source
of the claimant’s shoulder pain from a work-related injury because previous tests had
already determined there was no such causal connection).
[¶25] In determining Mr. Hart was not entitled to benefits under the “rule out” doctrine,
the Medical Commission stated:
[I]t is clear that the treatment for [Mr. Hart’s] thoracic spine,
that occurred nearly 9 months after the work-related incident,
was not performed for the purpose of ruling out a source of
pain to the lumbar spine. This procedure was being performed
to determine the source of pain for a distinct injury to the
thoracic spine, an injury that had not been presented to the
physician for months from initiating treatment for the lumbar
spine. There was no evidence in the record that would have
supplied an “objective indication of a physiologic connection
between the claimant’s injury and the diagnostic measure at
issue.” Mitcheson, . . . ¶¶ 22-23, 277 P.3d at 734-35.
8
[¶26] Mr. Hart claims Dr. Hammond’s testimony that he used the “process of elimination
of isolating certain parts of the spine that may be potential pain targets and treating them
and then watching to see what their reaction is to . . . the treatment” shows he was testing
and treating Mr. Hart’s thoracic spine to see if it would help with the pain in his lumbar
spine. The record does not support Mr. Hart’s argument. The medical records are clear
that Mr. Hart complained of thoracic spine pain independent of the compensable lumbar
spine pain Dr. Hammond had been treating. Dr. Hammond testified he evaluated and
treated different areas of Mr. Hart’s thoracic spine to diagnose the pain he was experiencing
in that section of his back, not to address the pain in his lumbar spine. The evidence did
not establish a physiologic relationship between the thoracic evaluation and treatment and
Mr. Hart’s work-related injury to his lumbar spine. There is substantial evidence in the
record to support the Medical Commission’s determination that Mr. Hart did not meet his
burden of proving his thoracic spine evaluation and treatment were compensable under the
“rule out” doctrine.
CONCLUSION
[¶27] The record contains substantial evidence to support the Medical Commission’s
determinations that Mr. Hart did not meet his burden of proving 1) his thoracic spine injury
was related to his September 2017 work-related accident, or 2) the evaluation and treatment
of his thoracic spine were for the purpose of ruling out that area of the back as a source of
his work-related lumbar spine pain.
[¶28] Affirmed.
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