In the Matter of the Worker's Compensation Claim of: Jeffrey Baker v. State of Wyoming, ex rel., Department of Workforce Services, Workers' Compensation Division

IN THE SUPREME COURT, STATE OF WYOMING

2017 WY 60

APRIL TERM, A.D. 2017

May 22, 2017

IN THE MATTER OF THE WORKER’S
COMPENSATION CLAIM OF:

JEFFREY BAKER,

Appellant
(Petitioner),

v. S-16-0209

STATE OF WYOMING, ex rel.,
DEPARTMENT OF WORKFORCE
SERVICES, WORKERS’ COMPENSATION
DIVISION,

Appellee
(Respondent).

Appeal from the District Court of Campbell County
The Honorable John R. Perry, Judge

Representing Appellant:
Mark D. Sullivan, Mark D. Sullivan, P.C., Wilson, Wyoming.

Representing Appellee:
Peter K. Michael, Wyoming Attorney General; Michael J. Finn, Senior Assistant
Attorney General; Benjamin E. Fischer, Assistant Attorney General.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, 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 any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
FOX, Justice.

[¶1] Jeffrey Baker injured his right shoulder at work, and his shoulder surgery was
covered by the Wyoming Workers’ Compensation Division (Division). Mr. Baker later
requested temporary total disability benefits related to a neck injury he claimed occurred
with the shoulder injury. The Division denied his request. On review, the Medical
Commission Hearing Panel (Commission) denied his claim on the grounds that he failed
to prove a causal relationship between his neck injury and the work-related accident. The
district court upheld the Commission’s decision and Mr. Baker appealed. We affirm.

ISSUES

[¶2] We rephrase the issues as:

1. Was the Commission’s decision that Mr. Baker did not meet his burden of
establishing the causal relationship between his neck injury and his work-related accident
supported by substantial evidence?

2. Was the Commission’s decision arbitrary and capricious?

FACTS
[¶3] Mr. Baker worked as a laborer for Van Ewing Construction, Inc. when he was
injured while carrying a several-hundred-pound log. He went to the Campbell County
Memorial Hospital (CCMH) walk-in clinic complaining of right-shoulder pain,
numbness, and tingling in his arm. Shoulder x-rays taken at CCMH on the date of injury
were negative for a fracture or other abnormality, and Mr. Baker was prescribed pain
medication and a sling for his right arm. Due to continued pain in his right shoulder, Mr.
Baker saw Joseph Allegretto, M.D., an orthopedist. Mr. Baker complained of “moderate
to severe” “right shoulder pain in the area of the a.c. joint.” Dr. Allegretto performed a
physical examination, including an examination of Mr. Baker’s head and neck, and
reported that the head and neck area was normal and not producing injury or damage. Dr.
Allegretto ordered an MRI of the right shoulder, and prescribed physical therapy.

[¶4] Mr. Baker began physical therapy on December 12, 2013, and at his January 6,
2014 appointment with Dr. Allegretto, reported minimal relief of his right-shoulder pain,
so Dr. Allegretto performed a corticosteroid injection into the subacromial space of Mr.
Baker’s shoulder, which also provided little relief. Mr. Baker then underwent an
electrodiagnostic (EMG) study to determine whether his continued pain originated from
carpal tunnel syndrome or a pinched nerve in the neck. The EMG study showed evidence
of carpal tunnel syndrome, but neither a pinched nerve in the neck, nor right cervical
radiculopathy or plexopathy. As a result, Mark Murphy, M.D., an orthopedic surgeon,
performed a right shoulder arthroscopic Mumford distal clavicle excision, right carpal
tunnel release, and right shoulder arthroscopic subacromial decompression, which was
covered by the Division.

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[¶5] Mr. Baker continued to report numbness and tingling in his right arm as well as
pain radiating into his right shoulder. A second EMG study found no evidence of right
cervical radiculopathy, plexopathy, or entrapment neuropathy, and indicated Mr. Baker’s
carpal tunnel condition had been repaired. Dr. Murphy then ordered a cervical MRI
which showed mild posterior disc bulging at C4-C5, minimal posterior disc bulging at
C5-C6, and marked degenerative disc disease with extensive posterior disc bulging at C6-
C7. Dr. Murphy referred Mr. Baker to Mahesh Karandikar, M.D., a neurosurgeon, who
initially recommended a C4-C7 anterior cervical discectomy and fusion (ACDF). The
Division denied Dr. Karandikar’s preauthorization request for the C4-C7 ACDF on the
basis that the procedure was not related to a work injury. Dr. Karandikar submitted a
second preauthorization request to the Division, limiting the surgery to a C6-C7 ACDF.
The Division again denied the request because it was not work related. Dr. Karandikar
ultimately performed a C5-C7 ACDF on April 30, 2015.1

[¶6] Prior to the April 30, 2015 ACDF surgery, Mr. Baker requested temporary total
disability (TTD) benefits. Dr. Karandikar certified Mr. Baker as temporarily totally
disabled between September 23 and November 23, 2014, and designated the disability as
related to the cervical spine. The Division denied the benefits, and Mr. Baker objected to
the determination and requested a hearing. After an evidentiary hearing, the Commission
determined that Mr. Baker had “failed to show by a preponderance of the evidence that
his cervical condition was causally related to the work injury on November 4, 2013.”
The district court affirmed the Commission’s ruling, and Mr. Baker timely appealed to
this Court.
STANDARD OF REVIEW
[¶7] This Court reviews a district court’s decision on an administrative decision as
though the case came directly from the administrative agency. 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 is governed by the Wyoming Administrative Procedure Act
(W.A.P.A.), which provides:
(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:

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The Commission noted that Mr. Baker “has not submitted any medical bills for the [ACDF] surgery to
the Division and no final determinations have been made on the compensability of those expenses.”

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 ....
(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.

Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2015). We review an agency’s findings of
fact by applying the substantial evidence standard. Substantial evidence means “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Guerrero v. State ex rel., Dep’t of Workforce Servs., Workers’ Comp. Div.,
2015 WY 88, ¶ 12, 352 P.3d 262, 266 (Wyo. 2015) (quoting Bush v. State ex rel. Wyo.
Workers’ Comp. Div., 2005 WY 120, ¶ 5, 120 P.3d 176, 179 (Wyo. 2005)). “Findings of
fact are supported by substantial evidence if, from the evidence preserved in the record,
we can discern a rational premise for those findings.” Id. (quoting Kenyon v. State ex rel.
Wyo. Workers’ Safety & Comp. Div., 2011 WY 14, ¶ 11, 247 P.3d 845, 849 (Wyo.
2011)).

DISCUSSION

I. Was the Commission’s decision that Mr. Baker did not meet his burden of
establishing the causal relationship between his neck injury and his work-related
accident supported by substantial evidence?

[¶8] Mr. Baker asserts that the Commission’s conclusion that he failed to establish a
causal connection between his workplace injury and his cervical spine injury was not
supported by substantial evidence. He contends that he demonstrated by a preponderance
of the evidence that he “simultaneously suffered two injuries on November 4, 2013.” Mr.
Baker claims that the Commission “ignore[d] entirely” the “ultimate conclusions” of his
experts’ opinions establishing the causal connection between his neck injury and work-
related injury. Mr. Baker designated three experts: Dr. Karandikar, the treating
neurosurgeon; Dr. Murphy, the treating orthopaedic surgeon; and Jordan Malkowski, the
treating physical therapist. He presented each expert’s testimony to the Commission by
deposition. The Division designated three experts: Dr. Scott Johnston, M.D.; Dr. Ricardo

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Nieves, M.D.; and Dr. Paul Ruttle, M.D. The Division presented Dr. Johnston’s opinion
to the Commission through his written reports, and the opinions of Dr. Nieves and Dr.
Ruttle by deposition.

[¶9] The Commission found significant flaws in each of the six experts’ opinions. The
Commission, as the trier of fact, has the responsibility to “determine relevancy, assign
probative value, and ascribe the relevant weight given to the evidence presented.”
Chavez v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2009 WY 46, ¶ 18, 204 P.3d
967, 971 (Wyo. 2009) (quoting Spletzer v. State ex rel. Wyo. Workers’ Safety & Comp.
Div., 2005 WY 90, ¶ 21, 116 P.3d 1103, 1112 (Wyo. 2005)). We will not “re-weigh the
evidence or re-determine facts or assess the credibility of witnesses so long as the
decision of the hearing examiner is based on relevant evidence which a reasonable mind
might accept in support of the agency’s conclusions.” Spletzer, 2005 WY 90, ¶ 22, 116
P.3d at 1112 (citations and internal quotation marks omitted). It was Mr. Baker’s burden
to prove, by a preponderance of the evidence, that his cervical spine injury was causally
related to his workplace injury. In re Claim of Hood, 2016 WY 104, ¶ 16, 382 P.3d 772,
776 (Wyo. 2016). Although all of the experts fell short, the fact that his experts failed to
meet that burden was fatal to Mr. Baker’s claim, and, applying our standard of review,
we will find that reasonable minds could find the evidence adequate to support the
Commission’s conclusion.

[¶10] Mr. Baker is required to prove a causal connection between his workplace injury
and his neck injury to a reasonable degree of medical probability. See Eaton v. State
ex rel. Dep’t of Workforce Servs., 2015 WY 107, ¶ 7, 356 P.3d 765, 766 (Wyo. 2015).
“This commonly requires 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.” Id. The words used by an expert to express his opinion about the cause of
a claimant’s injury are critical. See Middlemass v. State ex rel. Wyo. Workers’ Safety &
Comp. Div., 2011 WY 118, ¶ 28, 259 P.3d 1161, 1168 (Wyo. 2011). We have
consistently held that expert medical testimony stating the claimant’s work “contributed
to” the injury or the injury was “most likely” or “probably” the product of the workplace
is sufficient, but opinions expressed in terms of “can,” “could,” or “possibly” are
insufficient to meet a claimant’s burden of proof. Id.; Price, 2017 WY 16, ¶ 18, 388 P.3d
at 792; Guerrero, 2015 WY 88, ¶ 19, 352 P.3d at 268. Additionally, the Commission
may disregard an expert’s opinion if it finds the opinion to be unreasonable, based on
incomplete and inaccurate medical history, or not adequately supported by the facts upon
which the opinion is based. See Johnson v. State ex rel. Wyo. Workers’ Safety & Comp.
Div., 2014 WY 33, ¶ 25, 321 P.3d 318, 325 (Wyo. 2014).

[¶11] Mr. Baker argues that both Dr. Murphy and Dr. Karandikar opined that his neck
injury was causally related to the work injury on November 4, 2013, yet the Division
ignored these conclusions. Dr. Murphy testified:

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 Q. [Mr. Sullivan:] Okay. And then similarly, Doctor,
could that same mechanism of injury as I’ve described it to
you also simultaneously have injured Mr. Baker’s neck?

A. [Dr. Murphy:] It could have yes.

Q. And do you believe that the same mechanism of
injury, to a reasonable degree of medical certainty, could have
caused the disk bulge that’s shown on this MRI report at C6-
C7.

A. It could have, yes.

....

Q. I’m sorry. Just so we get a clear record on this,
what is it that your opinion is, Doctor?

A. I believe that he likely had some degree of
degenerative change at C6-7 which was aggravated and
became symptomatic as a result of his work injury.

[¶12] The Commission highlighted Dr. Murphy’s use of “could have” in his testimony
related to causation and other portions of his testimony in which Dr. Murphy testified that
the degenerative disk disease such as that found in Mr. Baker’s cervical spine can
become symptomatic absent any precipitating trauma or event. It also noted that Dr.
Murphy testified that, had the work injury caused the changes in Mr. Baker’s cervical
spine seen in the August 2014 MRI, he would have expected Mr. Baker to report
symptoms such as neck pain, stiffness, or limited range of motion by the time Mr. Baker
was seen by Dr. Allegretto on November 18, 2013, none of which was reported by Mr.
Baker. Although the Commission might have chosen to focus on Dr. Murphy’s
testimony that it was “likely” Mr. Baker had some degree of degenerative change which
was aggravated as a result of his work injury, as the factfinder in a contested case
hearing, it is for the Commission to weigh the available evidence. Johnson, 2014 WY
33, ¶ 25, 321 P.3d at 325. There was sufficient evidence for the Commission to conclude
that Dr. Murphy’s testimony did not support a finding of causation.

[¶13] Although Dr. Karandikar’s testimony was less equivocal, the Commission
nevertheless found it was not adequately supported. He testified:

Q. [Mr. Sullivan:] Is it your opinion that his
degenerative disc disease at C6-C7 is work related?

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 A. [Dr. Karandikar:] The herniation, yeah. So the
herniation – it was accelerated by it.

Q. Okay.

A. That’s a tough question to be really accurate on.
So was there some degenerative disk disease? Most likely,
yes. I can’t prove that. Was it clearly exacerbated by --
exacerbated by some sort of inciting event? Yes. That’s --
you know, so . . .

Q. Okay.

A. It’s still a degenerative disk. See what I’m
saying? The problem is the degenerative disk. And, yes, that
was a result of the accident, but that doesn’t mean he didn’t
have a milder degenerative disk before that. So it’s not, I
would say, the best way to ask that question, but I think I see
what they’re getting at.

....

Q. Dr. Karandikar, do you believe, to a reasonable
degree of medical certainty, that Jeffrey Baker’s November
4th, 2013 injury caused the cervical spine condition for which
you are now recommending surgical intervention?

A. Yes, I do.

Mr. Baker’s attorney questioned Dr. Karandikar about select physical therapy notes, and
Dr. Karandikar testified that Mr. Baker’s reports of numbness, headaches, and neck pain
could be consistent with a cervical spine injury. The Commission, however, found it
difficult to rely on Dr. Karandikar’s testimony because it was based on an incorrect and
incomplete medical history. “[H]earing examiners may disregard even uncontradicted
opinion testimony from a medical expert if it is not adequately supported by the facts on
which it purportedly rests, or if it is based upon an incomplete or inadequate medical
history.” Rogers v. Russell Constr. Co., Inc., 2016 WY 80, ¶ 27, 376 P.3d 1172, 1177
(Wyo. 2016).

[¶14] At his initial appointment with Dr. Karandikar, ten months after the workplace
injury, Mr. Baker reported “excruciating neck pain” from the date of the workplace injury
on. This assertion was not borne out by the medical records. Ms. Malkowski, Mr.
Baker’s treating physical therapist, testified that she did not examine Mr. Baker’s neck at

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his initial visit, as he reported significant right shoulder pain with some numbness in his
arm, but no neck pain. She testified that Mr. Baker reported neck pain in some
subsequent visits and pointed to her use of mechanical traction in her treatment plan as an
indication of her concern for cervical spine involvement, but neither her testimony nor
her records support a finding of “excrutiating neck pain” from the time of the original
injury. She was uncertain whether the neck pain was caused by the right shoulder pain,
and she provided no opinion as to its cause. Dr. Karandikar testified that prior to Mr.
Baker’s initial appointment he had reviewed only the referral letter from Dr. Murphy and
the record of an injection in the joint of Mr. Baker’s shoulder completed by another
doctor in Dr. Karandikar’s office. When the Commission “disregards certain evidence
and explains its reasons for doing so based upon determinations of credibility or other
factors,” its decision will be upheld under the substantial evidence test. Dale v. S & S
Builders, LLC, 2008 WY 84, ¶ 22, 188 P.3d 554, 561 (Wyo. 2008). Our review of any
particular decision turns not on whether we agree with the conclusion, but on whether the
agency could reasonably conclude as it did, based on all of the evidence before it. Id.
The Commission’s decision to reject Dr. Karandikar’s medical conclusion was
reasonable, considering the conclusion was made with incorrect and incomplete
information.

[¶15] Finally, Mr. Baker takes issue with the Commission’s treatment of the Division’s
experts’ opinions. The Commission concluded that “The opinions of the Division’s
experts are also not without problems.” The Commission determined that Dr. Johnston’s
reports were inconsequential because he was not asked to evaluate Mr. Baker’s neck
injury. It found that Dr. Nieves testified somewhat incorrectly, and questioned the
thoroughness of his exam of Mr. Baker as well as the accuracy of his report. And it
resolved that Dr. Ruttle based his opinion, in part, on inaccurate information. The
Commission clearly recognized the weaknesses in each of the Division’s expert
witnesses. The relative weight, however, that the Commission placed on the Division’s
experts is immaterial. Mr. Baker, as the claimant, had the burden to prove all elements of
his claim by a preponderance of the evidence. See Jacobs v. State ex rel. Wyo. Workers’
Safety & Comp. Div., 2013 WY 62, ¶ 11, 301 P.3d 137, 141 (Wyo. 2013). The
Commission found that Dr. Karandikar’s testimony was not credible, that Dr. Murphy’s
opinion alone did not establish causation, that the physical therapist provided no
testimony as to causation, and, therefore, that Mr. Baker failed to meet his burden to
establish that his neck injury was causally related to a workplace injury. The Division’s
experts’ testimony was certainly flawed, but it was not the Division’s burden to disprove
causation. We find that the Commission could have reasonably concluded that Mr. Baker
did not prove causation.

II. Was the Commission’s decision arbitrary and capricious?

[¶16] Mr. Baker also challenges the Commission’s findings as arbitrary and capricious.
The arbitrary and capricious standard is available “as a ‘safety net’ to catch agency action

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which prejudices a party’s substantial rights or which may be contrary to the other
W.A.P.A. review standards yet is not easily categorized or fit to any one particular
standard.” In re Claim of Hood, 2016 WY 104, ¶ 15, 382 P.3d at 776 (quoting Dale,
2008 WY 84, ¶ 23, 188 P.3d at 561). “The arbitrary and capricious standard applies if
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.” Jacobs, 2013 WY
62, ¶ 9, 301 P.3d at 141. Mr. Baker, however, does not argue that the Commission failed
to admit testimony or other evidence that was clearly admissible. Mr. Baker’s arguments
rely exclusively upon record evidence. As a result, the arbitrary and capricious standard
is inapplicable. Id.; see also Rogers, 2016 WY 80, ¶ 17, 376 P.3d at 1175.

CONCLUSION

[¶17] We find that the Commission’s determination that Mr. Baker did not prove his
neck injury was causally related to his work injury on November 4, 2013 was supported
by substantial evidence. The Commission could have reasonably concluded as it did and
its decision was not arbitrary and capricious. Affirmed.

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