              IN THE SUPREME COURT, STATE OF WYOMING
                                       2013 WY 116

                                                            APRIL TERM, A.D. 2013

                                                               September 30, 2013

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

ANITA J. FIESELER,

Appellant
(Petitioner/Claimant),
                                                     S-13-0047
v.

STATE OF WYOMING ex rel.
WYOMING WORKERS’ SAFETY AND
COMPENSATION DIVISION,

Appellee
(Respondent).

                    Appeal from the District Court of Fremont County
                       The Honorable Norman E. Young, Judge

Representing Appellant:
      Frank B. Watkins of Frank B. Watkins, P.C., Riverton, Wyoming.

Representing Appellee:
      Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy
      Attorney General; Michael J. Finn, Senior Assistant Attorney General; Kelly
      Roseberry, Assistant Attorney General.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, 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.
VOIGT, Justice.

[¶1] The appellant suffered a heart attack while working as a medical/surgical charge
nurse at Lander Regional Hospital. She applied for benefits with the Wyoming Workers’
Safety and Compensation Division (Division), but the claim was denied. The Office of
Administrative Hearings (OAH) upheld the Division’s denial of benefits, concluding the
appellant did not satisfy her burden set forth in Wyo. Stat. Ann. § 27-14-603(b)
(LexisNexis 2013). Specifically, it found the appellant failed to prove her myocardial
infarction was caused by exertion clearly unusual or abnormal to her particular
employment at the Hospital.1 The appellant sought review of the OAH’s decision and the
district court affirmed. On appeal to this Court, the appellant claims the OAH
misinterpreted the statute governing coronary conditions when it required the appellant to
prove that her duties precipitating the heart attack were unusual or abnormal for her
position at the Hospital, rather than unusual or abnormal in the nursing profession
generally. We affirm.

                                             ISSUE

[¶2] Did the OAH err as a matter of law when it interpreted Wyo. Stat. Ann. § 27-14-
603(b)(ii) to require that the causative exertion be unusual or abnormal for a
medical/surgical unit charge nurse at the appellant’s specific place of employment, rather
than being unusual or abnormal for a medical/surgical unit charge nurse in the nursing
profession generally?

                                            FACTS

[¶3] On October, 2, 2010, the appellant was working the 7:00 p.m. to 7:00 a.m. shift as
a charge nurse at the Hospital’s medical/surgical unit. At approximately 10:45 p.m., the
appellant and four other employees moved an immobile stroke patient from a hospital
bed to an air mattress to allow for incontinent care to be provided. The appellant and
another nurse provided such care, and then attempted to move the patient into bed. Soon
thereafter, the appellant became nauseous, felt like she was going to vomit, and began to
sweat heavily.

[¶4] Because of her training, the appellant realized she was experiencing symptoms
indicative of a heart attack and went to the Hospital’s emergency room. The appellant
was admitted to the emergency room around 12:45 a.m., where she was diagnosed with a
heart attack. The appellant was life-flighted to Wyoming Medical Center in Casper,
where she underwent triple bypass surgery.


1
  The parties also refer to Lander Regional Hospital as Lander Valley Medical Center. To avoid any
confusion, we refer to this medical facility simply as the Hospital.


                                                1
[¶5] The appellant applied for worker’s compensation benefits for expenses related to
the heart attack, which the Division denied. Applying Wyo. Stat. Ann. § 27-14-603(b),
the Division found the “[m]edical documentation on file does not support a direct causal
connection between the condition under which [the appellant’s] work was performed and
[the appellant’s] cardiac condition diagnosed as three vessel coronary atherosclerotic
disease.” The appellant objected, and the case was referred to the OAH for contested
case proceedings.

[¶6] The OAH held a contested case hearing, during which the appellant, the Division,
and the Hospital all presented evidence and arguments. The appellant took the position
that her burden under Wyo. Stat. Ann. § 27-14-603(b)(ii) required proof that the exertion
leading to her heart attack was abnormal or unusual for a charge nurse generally in the
industry. Accordingly, the appellant relied on testimony to this effect from her cardiac
surgeon at Wyoming Medical Center, Dr. Eric Munoz. Dr. Munoz did not specifically
review the duties and policies for a charge nurse at the Hospital; rather, his opinion was
based on (1) the appellant’s own account of the facts, and (2) general observations at
several different hospitals around the country where he worked throughout his career.
Premised on these bases, Dr. Munoz concluded the exertions causing the appellant’s heart
attack at the Hospital were unusual or abnormal for a charge nurse.

[¶7] Conversely, the Division’s and Hospital’s medical expert testified about causation
by comparing the appellant’s duties to those of a charge nurse specifically employed at
the Hospital. The OAH received evidence establishing the appellant’s job description
and working conditions for a charge nurse at the Hospital’s medical/surgical unit. Also
entered into evidence and considered by the OAH were the Hospital’s staffing reports,
patient reports, and polices regarding nurse staffing.

[¶8] The OAH issued a clear and cogent 42-page order2 denying benefits, finding the
appellant failed to prove her activities as a charge nurse on the night of the heart attack
were unusual to or abnormal for a charge nurse in the medical/surgical unit at the
Hospital. Specifically, the OAH found:

                         This Office also finds that the Wyoming Supreme
                  Court case of Loomer v. State ex rel. Wyoming Workers’
                  Safety and Compensation Division, 2004 WY 47, 88 P.3d
                  1036 (Wyo. 2004) controls this matter and requires [the
                  appellant] to prove the causative exertion was unusual or
                  abnormal for a charge nurse on the medical/surgical unit of
                  LRH and not the nursing profession in general or a position in
                  the surgical unit of the Wyoming Medical Center in Casper.
                  In Loomer, the Wyoming Supreme Court reiterated its

2
    The OAH’s order includes detailed findings of fact and conclusions of law.


                                                      2
             holding that to ascertain when an employee’s specific
             exertion is unusual, an objective versus subjective test must
             be used. The objective test compares the employee’s specific
             exertion to the usual exertion of other employees engaged in
             the same or similar activity. The court also held that the
             causative stress or exertion must be clearly unusual to or
             abnormal for employees in that particular employment.

(Emphasis in original.)

[¶9]   Based upon this controlling authority, the OAH determined:

             [The appellant] did not satisfy her burden of proof for a
             coronary condition because she did not prove that her duties
             on the evening of October 2, 2010 were unusual or abnormal
             for that of a charge nurse on the medical/surgical unit of
             LRH. [The appellant] admitted, and the evidence showed,
             that it was typical for her to have five patients, provide
             incontinent care multiple times during the course of her shift,
             work with a traveler nurse, lift and move patients in their beds
             and have multiple tasks to perform at any given time. All
             medical evidence concluded that [the appellant’s] heart attack
             was caused by her three-vessel coronary artery disease,
             history of smoking a pack of cigarettes a day for 40 years,
             family history of artery disease and other risk factors. Dr.
             Munoz’ opinion was undermined by his lack of understanding
             of the medical/surgical unit at LRH, as well as the history
             provided to him by [the appellant], which was exaggerated in
             terms of the number of patients she had to care for on October
             2, 2010.

In sum, the OAH concluded that “[i]n fact, [the appellant] was hired to do all of those
activities during the normal course of business as a charge nurse on the medical/surgical
unit at LRH. The Wyoming Supreme Court case of Loomer [] clearly defines the
employment stress must be unusual for an LRH charge nurse on the medical/surgical
unit.”

[¶10] The appellant petitioned the district court for review, which affirmed, and this
appeal followed.




                                            3
                              STANDARD OF REVIEW
[¶11] In an appeal from a district court’s review of an administrative decision, we
review the matter as if it had come directly from the agency, affording no special
deference to the district court’s decision. Hayes v. State ex rel. Wyo. Workers’ Safety &
Comp. Div., 2013 WY 96, ¶ 11, 307 P.3d 843, 846 (Wyo. 2013). 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. Moss v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2010
WY 66, ¶ 11, 232 P.3d 1, 4 (Wyo. 2010); Wyo. Stat. Ann. § 16-3-114(c)(ii)(A)
(LexisNexis 2013).
                                     DISCUSSION
[¶12] The appellant’s claim for benefits concerning her coronary condition is controlled
by Wyo. Stat. Ann. § 27-14-603(b)(ii), which requires a claimant to establish, inter alia,
that: “causative exertion occurs during the actual period of employment stress clearly
unusual to or abnormal for employees in that particular employment . . . .” Pursuant to
this provision, the hearing examiner required the appellant to establish that her heart
attack was caused by exertion unusual to or abnormal for a charge nurse on the
medical/surgical unit of the Hospital, not in the nursing profession in general. The
appellant contends the OAH erred and that “particular employment” in her case means a
medical/surgical charge nurse without the specific focus on the employer. We previously
have had occasion to interpret this provision, which clearly answers the appellant’s issue
against her.

[¶13] In Loomer v. State ex rel. Wyoming Workers’ Safety and Compensation Division,
the claimant was originally hired by the employer, TRC, as a pipe inspector; however, the
claimant suffered a heart attack while unloading pipe off of a truck he had delivered to a
well site. 2004 WY 47, ¶ 1, 88 P.3d 1036, 1038 (Wyo. 2004). The initial question
became whether the claimant’s “particular employment” at the time of his heart attack
was that of a pipe fitter or truck driver. We determined the “phrase ‘particular
employment’ as found in Wyo. Stat. Ann. § 27–14–603(b)(ii) means the task being
performed at the time of the causative exertion.” Id. at ¶ 30, at 1045. Based upon our
interpretation, we explained that a claimant must establish that the employment stress
was abnormal or unusual for a person with that particular employer:
                      When Mr. Loomer suffered his heart attack, his
               particular employment was that of a TRC truck driver.
               Therefore, we must now determine whether there is
               substantial evidence to support the Commission's
               determination that the employment stress Mr. Loomer
               experienced was neither abnormal to nor unusual for a TRC
               truck driver.

Id. at ¶ 24, at 1044.

                                            4
[¶14] In the instant case, the OAH’s decision is in accordance with Wyoming’s coronary
statute and Loomer. It correctly determined that the appellant’s particular employment at
the time of her heart attack was that of a charge nurse on the medical/surgical unit at the
Hospital.3

                                          CONCLUSION

[¶15] The OAH correctly interpreted and applied Wyo. Stat. Ann. § 27-14-603(b)(ii).
The appellant was required to prove that the causative exertion be abnormal or unusual
for a medical/surgical unit charge nurse at the Hospital.

[¶16] Affirmed.




3
  Although the appellant raises one narrow issue of law, she includes in her briefing argument that under
her interpretation of Wyo. Stat. Ann. § 27-14-603(b)(ii), she has met her burden of proof based upon the
evidence presented. Because we find that the OAH did not err in interpreting and applying the statute at
issue, we need not address the appellant’s ancillary argument. See Hall v. Perry, 2009 WY 83, ¶ 3 n.1,
211 P.3d 489, 490 n.1 (Wyo. 2009). Indeed, the appellant concedes that “the stress at her workplace may
have been usual and normal for a medical/surgical charge nurse with her particular employer . . . .”


                                                   5
