IN THE SUPREME COURT, STATE OF WYOMING
2022 WY 100
APRIL TERM, A.D. 2022
August 19, 2022
MARY F. McBRIDE,
Appellant
(Petitioner),
v.
S-21-0296
STATE OF WYOMING, ex rel.
DEPARTMENT OF WORKFORCE
SERVICES, WORKERS’
COMPENSATION DIVISION,
Appellee
(Respondent).
Appeal from the District Court of Sheridan County
The Honorable John G. Fenn, Judge
Representing Appellant:
Brittany Thorpe, Domonkos Law Office, LLC, Cheyenne, Wyoming.
Representing Appellee:
Bridget Hill, Wyoming Attorney General; Mark Klaassen, Deputy Attorney
General; Peter Howard, Senior Assistant Attorney General; Holli J. Welch, Senior
Assistant Attorney General.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, JJ., and SHARPE, D.J.
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
any typographical or other formal errors so that correction may be made before final publication in the
permanent volume.
GRAY, Justice.
[¶1] In 2015, Mary McBride injured her back and left hip while working as a registered
nurse. After receiving a twelve percent permanent partial impairment rating, Ms. McBride
applied for permanent partial disability benefits (PPD). 1 Following a contested case
hearing, the Office of Administrative Hearings (OAH) awarded Ms. McBride PPD
benefits, finding that she had actively sought suitable employment given her health,
education, training, and experience. The district court reversed, concluding that Ms.
McBride had not actively sought suitable work under Wyo. Stat. Ann. § 27-14-405(h). She
appeals the district court order. We affirm the decision of the district court.
ISSUE
[¶2] Was the OAH decision that Ms. McBride met the legal requirement of actively
seeking work considering her health, education, training, and experience supported by
substantial evidence and not arbitrary, capricious, or otherwise not in accordance with the
law?
FACTS
[¶3] Ms. McBride, a registered nurse, worked at Sheridan Manor. In 2015, while
transferring a resident from his bed to a wheelchair, she injured her back and left hip. 2 Ms.
McBride immediately reported her injuries and the Department of Workforce Services,
Workers’ Compensation Division (the Division) approved medical coverage for treatment
of her thoracic and lumbar spine, left hip, and cervical spine injuries. She attended physical
therapy and continued working for a time, but her pain increased. By November 2016, her
treating physician, Dr. Michael Strahan, recommended that she retire from nursing, and
Ms. McBride retired. In December 2016, Ms. McBride applied for and received temporary
total disability benefits.
[¶4] In 2018, Ms. McBride received two independent medical evaluations. The first
evaluation was performed by Dr. Scott Johnston on April 26, 2018. Ms. McBride told Dr.
Johnston that she experienced a “burning throbbing tingling ache” in her lower back that
radiated from her waist to her tailbone and that her pain worsened during periods of
prolonged sitting, standing, laying, or walking. Dr. Johnston documented Ms. McBride’s
work history as a registered nurse for twenty-two years before retiring and before that as a
cosmetologist for seventeen years. He observed that Ms. McBride had mild difficulty
laying on and getting up off the examination table but had no difficulty in walking or
1
Permanent partial disability “means the economic loss to an injured employee, measured as provided
under W.S. 27-14-405(j), resulting from a permanent physical impairment[.]” Wyo. Stat. Ann. § 27-14-
102(a)(xv) (LexisNexis 2021).
2
Ms. McBride sustained a previous work-related injury to her neck in 2013.
1
sitting. He determined she had low back pain without evidence of radiculopathy or
myelopathy. He concluded that Ms. McBride suffered a two percent whole person
impairment and that she had reached maximum medical improvement. Dr. Johnston
recommended work restrictions of not lifting more than twenty pounds and changing
positions every five to ten minutes.
[¶5] On June 11, 2018, Dr. Spencer Greendyke performed a second evaluation. Ms.
McBride reported lumbar spine discomfort when at rest and increasing pain with activity.
She also reported bilateral posterior hip pain when at rest and increasing pain with activity.
Dr. Greendyke noted no outward signs of pain. He documented that Ms. McBride had no
difficulty standing, walking, squatting, or touching her toes despite tenderness in the
muscles around the cervical spine and lumbar spine. He concluded that Ms. McBride
suffered a four percent whole person impairment 3 and recommended work restrictions of
not “lifting more than 20 pounds with both arms, and no bending or stooping.”
[¶6] Ms. McBride’s back pain continued to worsen, and she was unresponsive to
conservative treatment. In March 2019, she had a L4-5 discectomy and fusion on her lower
back. Six months after her surgery, Dr. Greendyke performed a third independent medical
evaluation. He concluded that Ms. McBride had reached maximum medical improvement
following her latest surgery and increased her impairment rating to twelve percent. His
previous work restrictions and movement recommendations remained unchanged. Based
on Dr. Greendyke’s impairment rating, the Division awarded Ms. McBride a permanent
partial impairment benefit at twelve percent.
[¶7] In April 2020, Ms. McBride submitted her PPD application. The application
reflected that she had “[r]etired in 2016 because of injuries,” she was not employed, she
had not registered with job service or any other employment agency, and she was “not
seeking employment.” It listed only five job searches. These were performed between
April 1 and April 9, 2020. The Division denied Ms. McBride’s application based on her
failure to comply with Wyo. Stat. Ann. § 27-14-405(h)(iii) conditioning an employee’s
eligibility for PPD benefits on “actively [seeking] suitable work, considering the
employee’s health, education, training and experience,” and the Division rules defining
“actively seeking work” as a minimum of five job contacts per week over the course of a
six-week period immediately preceding the date the application is filed. Wyo. Workers’
Comp. Div. Rules, Regulations & Fee Schedules, ch. 1, § 4(c) (June 2011), superseded by
Wyo. Workers’ Comp. Div. Rules, Regulations & Fee Schedules, ch. 1, § 3(c) (Oct. 2020);
Wyo. Stat. Ann. § 27-14-405(h). Ms. McBride objected to the determination and a
contested case hearing was held.
3
Dr. Greendyke also assigned a four percent whole body impairment resulting from a work injury Ms.
McBride’s suffered in 2013.
2
[¶8] The independent medical examinations of Dr. Johnston and Dr. Greendyke were
submitted into evidence. Additional evidence included medical records showing that
throughout 2020 Ms. McBride had sought treatment for chronic back and neck pain. These
records included appointments with Jason Otto, PA-C, Ian Hunter, MD, McKenzi Turner,
RN, and Riley Paris, PA-C. The records reflect that Ms. McBride complained to Ms.
Turner, Dr. Hunter, and PA Paris of worsening gait and balance issues. PA Paris had talked
with a neurosurgeon who had reviewed Ms. McBride’s CT images. PA Paris informed
Ms. McBride that the neurosurgeon did not attribute her pain symptoms to her lumbar spine
fusion.
[¶9] Dr. Hunter testified by deposition. He asserted that Ms. McBride was “no longer
able to continue working as a registered nurse.” Dr. Hunter explained that working as a
nurse is “much more physical than you would think. A lot of the day is spent actively
moving around the office. We all get more than 5,000 steps during our day.” In his
opinion, “[r]epetitively doing these kind of things [lifting, bending, stooping]” would “flare
her back pain and lead to more problems.” Dr. Hunter clarified that his opinion was not
based on Ms. McBride’s “medical records[,] her physical limitations[,] her abilities based
upon her training and experience and education, [or] whether she could work again in a
lighter field.” His opinion was, instead, based on his observations during her recent office
visit. Dr. Hunter agreed with the work restrictions recommended by Dr. Greendyke. He
went on to say that Ms. McBride “could potentially find some . . . office job or something
else that maybe wasn’t as specifically demanding.” He cautioned that even in an office
job, “she would need [to] be able to get up and cruise around, because . . . prolonged sitting
causes problems as well.”
[¶10] Nonmedical evidence introduced at Ms. McBride’s contested case hearing included
a report from Investigative Resources of Wyoming, LLC; a vocational evaluation prepared
by vocational assessor Kari Cornella; and testimony from Ms. McBride. The Investigative
Resources of Wyoming report described Ms. McBride walking her dog, getting into or out
of her car, and shopping. The report stated that she exhibited no visible signs of pain or
physical limitations while engaged in these activities.
[¶11] Ms. Cornella’s evaluation included her assessment that, while Ms. McBride would
need accommodations for her physical limitations, she was qualified to work as a
consultant, supervisor, or case manager. Ms. Cornella identified several available jobs.
Her report stated that Ms. McBride told her she could no longer work, she was not willing
to relocate to find employment, and she did not like working with “management.”
[¶12] Ms. McBride testified that she had made only five job contacts and, aside from
those contacts, she did not “really [go] in and appl[y] anywhere.” She explained she had
increased susceptibility to COVID-19, and this affected the availability of jobs.
Additionally, she believed no employer would hire her because of her work restrictions.
She asserted that she could not work as a nurse because there was “always a time when
3
you have to do patient lifting: bending, stooping, twisting, all of that. It’s a very hard,
strenuous, physical job.” She testified instead of looking for work, she was “more trying
to recover from surgery and be physically able to pursue anything in the future.”
[¶13] The OAH reversed the Division and awarded Ms. McBride PPD benefits. It found
that Ms. McBride had made a tangible effort to find work considering her health, education,
training, and experience. The Division appealed to the district court, and the district court
reversed the OAH. It found that Ms. McBride did not present sufficient evidence that she
actively sought work and did not present expert medical testimony showing she was
incapable of working. Ms. McBride appeals.
STANDARD OF REVIEW
[¶14] “We review an administrative appeal as if it came directly from the administrative
agency, giving no deference to the district court’s ruling on the appeal.” Reichenberg v.
State ex rel. Dep’t of Workforce Servs., Workers’ Comp. Div., 2022 WY 36, ¶ 27, 506 P.3d
732, 741 (Wyo. 2022) (citing Boyce v. State ex rel. Dep’t of Workforce Servs., Workers’
Comp. Div., 2017 WY 99, ¶ 21, 402 P.3d 393, 399–400 (Wyo. 2017); Price v. State ex rel.
Dep’t of Workforce Servs., Workers’ Comp. Div., 2017 WY 16, ¶ 7, 388 P.3d 786, 789
(Wyo. 2017)). Our review of the agency’s decision is governed by Wyo. Stat. Ann. § 16-
3-114(c):
(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:
. . .
(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;
. . .
[or]
4
(E) Unsupported by substantial evidence in a
case reviewed on the record of an agency hearing
provided by statute.
Wyo. Stat. Ann. § 16-3-114(c)(ii)(A), (E) (LexisNexis 2021).
[¶15] “A workers’ compensation claimant must prove all essential elements of her claim
by a preponderance of the evidence.” Boylen v. State ex rel. Dep’t of Workforce Servs.,
Workers’ Comp. Div., 2022 WY 39, ¶ 8, 506 P.3d 765, 769 (Wyo. 2022) (citing Ross v.
State ex rel. Dep’t of Workforce Servs., 2022 WY 11, ¶ 9, 503 P.3d 23, 28 (Wyo. 2022)).
“When both parties submit evidence, this Court will apply the substantial evidence test to
fact findings.” Reichenberg, ¶ 28, 506 P.3d at 741 (quoting Ross, ¶ 9, 503 P.3d at 28).
Under the substantial evidence test,
we examine the entire record to determine whether there is
substantial evidence to support an agency’s [factual] 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. It is more than
a scintilla of evidence.
Matter of Worker’s Comp. Claim of Vinson, 2020 WY 126, ¶ 26, 473 P.3d 299, 308 (Wyo.
2020) (quoting Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 11, 188 P.3d 554, 558 (Wyo.
2008)). Further,
If the hearing examiner determines that the burdened party
failed to meet his burden of proof, we 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.
Ross, ¶ 9, 503 P.3d at 28 (quoting Watkins v. State ex. rel. Wyoming Med. Comm’n, 2011
WY 49, ¶ 16, 250 P.3d 1082, 1086 (Wyo. 2011)).
[¶16] “Even if an agency record contains sufficient evidence to support the administrative
decision under the substantial evidence test, this Court applies the arbitrary-and-capricious
standard as a ‘safety net’ to catch other agency action that may have violated the Wyoming
Administrative Procedures Act.” Reichenberg, ¶ 29, 506 P.3d at 742 (quoting Mirich v.
State ex. rel. Bd. of Trs. of Laramie Cnty. Sch. Dist. Two, 2021 WY 32, ¶ 16, 481 P.3d 627,
5
633 n.4 (Wyo. 2021)). This standard applies when “the agency failed to admit testimony
or other evidence that was clearly admissible, or failed to provide appropriate findings of
fact or conclusions of law.” Triplett v. State ex. rel. Dep’t of Workforce Servs., Workers’
Comp. Div., 2021 WY 118, ¶ 35, 497 P.3d 903, 911 (Wyo. 2021) (quoting McIntosh v.
State ex rel. Wyoming Workers’ Safety & Comp. Div., 2013 WY 135, ¶ 31, 311 P.3d 608,
616 (Wyo. 2013)). It does not “apply to true evidentiary questions.” Id. (quoting McIntosh,
¶ 31, 311 P.3d at 616).
The arbitrary and capricious test requires the reviewing court
to review the entire record to determine whether the agency
reasonably could have made its finding and order based upon
all the evidence before it. The arbitrary and capricious
standard is more lenient and deferential to the agency than the
substantial evidence standard because it requires only that
there be a rational basis for the agency’s decision.
Reichenberg, ¶ 29, 506 P.3d at 742 (quoting Vinson, ¶ 27, 473 P.3d at 309). “Importantly,
our review of any particular decision turns not on whether we agree with the outcome, but
on whether the agency could reasonably conclude as it did, based on all the evidence before
it.” Boylen, ¶ 8, 506 P.3d at 769 (quoting Matter of Claim of Hood, 2016 WY 104, ¶ 14,
382 P.3d 772, 776 (Wyo. 2016)).
[¶17] “[W]e review an agency’s conclusions of law de novo and affirm only if its
conclusions are in accordance with the law.” Ross, ¶ 11, 503 P.3d at 29 (quoting Triplett,
¶ 35, 497 P.3d at 911).
DISCUSSION
[¶18] OAH awarded Ms. McBride PPD benefits, finding that she had met the three
conditions in Wyo. Stat. Ann. § 27-14-405(h). Wyo. Stat. Ann. § 27-14-405(h) provides:
(h) An injured employee awarded permanent partial
impairment benefits may apply for a permanent disability
award subject to the following terms and conditions:
(i) The injured employee is because of the injury,
unable to return to employment at a wage that is at least
ninety-five percent (95%) of the monthly gross earnings
the employee was earning at the time of injury;
(ii) An application for permanent partial disability is
filed not before three (3) months after the date of
ascertainable loss or three (3) months before the last
6
scheduled impairment payment, whichever occurs later,
but in no event later than one (1) year following the later
date; and
(iii) The employee has actively sought suitable
work, considering the employee’s health, education,
training and experience.
Wyo. Stat. Ann. § 27-14-405(h) (LexisNexis 2021) (emphasis added).
[¶19] At the time of Ms. McBride’s injury, the Division rules included the following
definition of the term, “actively seeking work”:
For purposes of benefit eligibility, a claimant is actively
seeking work if the claimant provides tangible evidence of the
work search to the Division. Completion of the work search
form will be considered tangible evidence. The work search
must contain a minimum of five contacts per week over the
course of a six week period. The six week period must be
immediately preceding the date the application is filed with the
Division or immediately following the date the application is
filed with the Division. The contacts listed on the work search
must be made for work the claimant is reasonably qualified to
perform and is willing to accept. Actions that would be
considered an active search for employment include
completing job applications, faxing or mailing resumes
(include proof), or visiting the employers in person. Claimant
must contact the employer he was working for at the time of
injury to inquire if the employer has work available within their
medically documented restrictions.
Wyo. Workers’ Comp. Div. Rules, Regulations & Fee Schedules, ch. 1, § 4(c) (June 2011)
(emphasis added), superseded by Wyo. Workers’ Comp. Div. Rules, Regulations & Fee
Schedules, ch. 1, § 3(c) (Oct. 2020). 4
4
The citation is to the rules in effect from June 2011 to August 2017 as the hearing examiner must determine
the case “in accordance with the law in effect at the time of the injury . . .” and Ms. McBride’s injury
occurred in 2015. Wyo. Stat. Ann. § 27-14-602(b) (LexisNexis 2021). We note however, that Wyo.
Workers’ Comp. Div. Rules, Regulations & Fee Schedules, ch. 1, § 4(c) (June 2011), while superseded,
was not changed in the 2020 revisions. Compare Wyo. Workers’ Comp. Div. Rules, Regulations & Fee
Schedules, ch. 1, § 3(c) (Oct. 2020), with Wyo. Workers’ Comp. Div. Rules, Regulations & Fee Schedules,
ch. 1, § 4(c) (June 2011).
7
[¶20] The parties do not dispute that Ms. McBride met the first two statutory requirements
for PPD—she was unable to return to a job paying at least ninety-five percent of her gross
monthly earnings at the time of her injury, and she timely filed her PPD benefits
application. The controversy centers on the third statutory condition requiring an employee
to actively seek suitable work, considering the employee’s health, education, training, and
experience. Wyo. Stat. Ann. § 27-14-405(h)(iii). Ms. McBride concedes that she failed to
comply with the Division’s rule defining actively seeking work as a “minimum of five
contacts per week over the course of a six week period” immediately before or after the
application is filed. Wyo. Workers’ Comp. Div. Rule, ch. 1, § 4(c) (June 2011). But she
argues that she met the third requirement when the rule in In re Worker’s Comp. Claim of
Johnson, 2001 WY 48, 23 P.3d 32 (Wyo. 2001) is applied to her case. 5
[¶21] In Johnson, a co-worker accidentally dropped a four-pound hammer on Mr.
Johnson’s head while Mr. Johnson was standing on a ladder. Johnson, ¶ 3, 23 P.3d at 34.
The blow caused him to fall fourteen feet to the concrete floor injuring “his head, neck,
and lower back.” Id. He applied for PPD benefits, and the Division denied his application.
Id. ¶ 6, 23 P.3d at 35. He appealed and the OAH affirmed the denial concluding that Mr.
Johnson had failed to establish that he actively sought suitable work. Id.
[¶22] On appeal, “[t]he only issue for resolution was whether Mr. Johnson had proven by
a preponderance of the evidence that he actively sought suitable employment, considering
his health, education, training, and experience.” Id. ¶ 9, 23 P.3d at 36. Mr. Johnson
testified about his severe physical limitations and admitted that he did not seek work. Id.
¶¶ 10, 12, 23 P.3d at 36–37. However, he asserted his physician “advised him any type of
work would aggravate his already severely debilitated condition.” Id. ¶ 12, 23 P.3d at 37.
Mr. Johnson’s treating physician submitted a letter which said:
I cannot see where placing Mr. Johnson at any regular job will
help his back pain picture nor is it likely to remain static. It
will undoubtedly get worse with enforced sitting, standing or
any prescribed activity such as a job might indicate at this
point.
Id. ¶ 10, 23 P.3d at 36. We considered whether Mr. Johnson had complied with the
statutory requirement that he actively seek suitable work considering his health. See id.
¶ 12, 23 P.3d at 37. We reasoned:
The circumstances of this case raise a peculiar
quandary. Mr. Johnson is evidently in a very diminished
5
The Division argues that any reliance on Johnson is misplaced because Johnson predated the Division’s
rule requiring a minimum number of work searches. We do not reach this argument because we find that
Johnson is distinguishable.
8
physical state. His doctor has advised him against work of
any kind, and from his testimony, which is consistent with
this medical opinion, it appears he has not been released to
work. On the other hand, § 27-14-405(h)(iii) seems to require
evidence of an active job search. However, at the same time,
Wyo. Stat. Ann. § 27-14-407 (LEXIS 1999) precludes a
claimant from engaging in activities which imperil or retard
recovery. “[W]orkers’ compensation benefits will not be
awarded for the subsequent injury caused by the worker’s
willful disregard for his physical limitations and his doctor’s
orders.” Fenner v. Trimac Transportation, Inc., 554 N.W.2d
485, 490 (S.D. 1996) (State ex. rel. Wyoming Workers’ Safety
and Compensation Division v. Henriksen, 2001 WY 42, 21
P.3d 1185 [(Wyo. 2001)], presents an analogous factual
circumstance in the context of a claimant’s application for
temporary total disability benefits). This potential dilemma is
resolved by the language of § 27-14-405(h)(iii) which qualifies
the requirement the employee “actively sought suitable work”
with the language “considering the employee’s health.”
Johnson, ¶ 13, 23 P.3d at 37 (emphasis added) (footnote omitted). We concluded that Mr.
Johnson had met the work search requirement even though he had not applied for any work
because he had shown that his health condition precluded a job search of any kind. Id. The
burden then shifted to the Division for it to prove that “Mr. Johnson did not actively pursue
employment considering his health.” Id. ¶ 14, 23 P.3d at 37. The only evidence the
Division submitted was an independent medical examiner’s statement:
In light of his injury and physical impairments, I do not feel
that Mr. Johnson will be able to return to his prior line of work
which was a heavy duty job description. Mr. Johnson would
do best should he desire to return to the work force to receive
job retraining at the sedentary level. Mr. Johnson reports
difficulty sitting, standing or walking for prolonged periods of
time and I feel that it would be in his best interest to perform
all activities on an as tolerated basis only. I would limit his
sitting to no more than 1 hour at a time with positional changes
and rest breaks as needed.
Id. We found that the independent medical examiner’s opinion supported that of Mr.
Johnson’s physician—“return to the ‘regular’ workforce would be detrimental to his
health.” Id. ¶ 14, 23 P.3d at 38. We further found that the Division did not provide any
evidence establishing Mr. Johnson’s vocational capacity or identifying jobs he could
perform that would not worsen his physical state. Id. ¶ 15, 23 P.3d at 38. We held that the
9
OAH could not have reasonably found that Mr. Johnson had failed to establish that he
actively sought suitable work when the evidence before it conclusively established there
was no suitable work for him to seek. Id. ¶¶ 15–16, 23 P.3d at 38.
[¶23] Ms. McBride argues that, like Mr. Johnson, she has satisfied the requirement she
“actively sought suitable work, considering [her] health, education, training and
experience,” because there is no suitable work considering her health. Ms. McBride had
the burden of proving eligibility for PPD benefits by a preponderance of the evidence.
Camacho v. State ex rel. Dep’t of Workforce Servs., Workers’ Comp. Div., 2019 WY 92,
¶ 24, 448 P.3d 834, 843 (Wyo. 2019) (citing Bonsell v. State ex rel. Wyoming Workers’
Safety & Comp. Div., 2006 WY 114, ¶ 10, 142 P.3d 686, 689 (Wyo. 2006)). Accordingly,
to prevail before the OAH, Ms. McBride had to establish by a preponderance of the
evidence that there was no suitable work available considering her health.
[¶24] While Dr. Hunter opined that Ms. McBride could not return to work as a nurse
because demands of such a job “would flare her back pain and lead to more problems,” he
offered that she “could potentially find some . . . office job or something else that maybe
wasn’t as specifically demanding.” While he cautioned that it might be difficult for her to
get hired given her age and lack of experience, it was his opinion that there were jobs that
she could perform despite her limitations.
[¶25] Ms. McBride’s three independent medical evaluations corroborate Dr. Hunter’s
testimony. The first evaluation conducted by Dr. Johnston recommended work restrictions
of not lifting more than twenty pounds and that Ms. McBride should be allowed to change
positions every five to ten minutes. The second and third evaluations performed by Dr.
Greendyke recommended work restrictions of not “lifting more than twenty pounds with
both arms, and no bending or stooping.” While each evaluation contains recommended
work restrictions, none of them suggest that Ms. McBride cannot work without aggravating
her condition.
[¶26] The present case is distinguishable from Johnson. Ms. McBride’s injuries are not
as debilitating as those of Mr. Johnson. Ms. McBride can get in and out of her car, drive,
and walk her dog on a leash. Dr. Hunter testified that Ms. McBride could get out of her
chair, walk around, and get on the examination table. In contrast, Mr. Johnson had
developed a seizure disorder, experienced constant headaches, was unable to use his right
arm, was confined to a wheelchair, and could only walk ten to fifteen feet unassisted.
Johnson, ¶ 5, 23 P.3d at 34–35. His physician said that in “his medical opinion . . . any
level of ‘regular’ work activity would make Mr. Johnson’s already extraordinarily limited
physical capacity and condition worse.” Id. ¶ 11, 23 P.3d at 36. We held that Mr. Johnson
had met the requirement of actively seeking suitable work because under the unique
circumstances of his case, there was no work that would not detrimentally impact his
health. Id. ¶ 13, 23 P.3d at 37. Here, no medical provider opined that Ms. McBride was
unable to work without diminishing her physical state or causing additional injury. Ms.
10
McBride did not testify that she could not work. Instead, she conceded that she was not
looking for work. Ms. McBride did not establish by a preponderance of the evidence that
there was no suitable work given her health. We reverse the OAH decision as it is not
supported by substantial evidence. We affirm the decision of the district court.
11