                IN THE SUPREME COURT, STATE OF WYOMING

                                     2014 WY 40

                                                    OCTOBER TERM, A.D. 2013

                                                               March 21, 2014

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

RICHARD J. DELACASTRO,

Appellant
(Petitioner),
                                                   S-13-0141
v.

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

Appellee
(Respondent).

                   Appeal from the District Court of Laramie County
                     The Honorable Thomas T.C. Campbell, Judge

Representing Appellant:
      Robert A. Nicholas, Nicholas Law Office, Cheyenne, Wyoming.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; John D. Rossetti, Deputy Attorney
      General; Michael J. Finn, Senior Assistant Attorney General; Michael T. Kahler,
      Senior Assistant Attorney General.

Before KITE, C.J., and HILL, VOIGT*, BURKE, and DAVIS, JJ.

Justice Voigt retired effective January 3, 2014.
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.
KITE, Chief Justice.

[¶1] Richard J. Delacastro suffered a work-related injury to his right hip in 2007. In
2009, the State of Wyoming ex rel. Wyoming Workers’ Safety and Compensation
Division (the Division) denied, as unrelated to his work injury, requests for testing and
treatment of pain in his back. After a contested case hearing, the Office of
Administrative Hearings (OAH) reversed the Division’s final determination, directed
payment of Mr. Delacastro’s outstanding medical bills and ordered that one additional
test be performed to determine whether his back problems were associated with his work
injury. The parties submitted the results of the test, which were normal, and the hearing
examiner ordered that Mr. Delacastro was not entitled to further benefits for his back.

[¶2] The district court affirmed the OAH decision, and Mr. Delacastro appealed to this
Court. We conclude substantial evidence supports the OAH decision that Mr. Delacastro
did not satisfy his burden of proving additional testing and treatment of his back were
related to his work injury; however, we clarify that future treatment associated with the
original hip injury may be submitted for administrative review. We affirm, as modified.

                                         ISSUES

[¶3]   Mr. Delacastro presents the following issues for this Court’s consideration:

             1. Is the OAH’s decision denying all future medical benefits
                for [Mr. Delacastro’s] ongoing right hip and thigh pain
                supported by substantial evidence, arbitrary or otherwise
                contrary to law?

             2. Is the OAH’s decision denying additional diagnostic
                testing supported by substantial evidence, arbitrary or
                otherwise contrary to law . . .?

The Division phrases the issue on appeal as:

             In 2007, Delacastro injured his right hip, and the Department
             ruled this was a compensable work place injury. Nearly two
             years later, in 2009, Delacastro returned to his physician and
             underwent an MRI to diagnose “back pain.” The Division
             denied coverage for Delacastro’s 2009 medical treatment,
             concluding it was unrelated to his 2007 hip injury. At the
             contested case hearing, Delacastro argued that he actually
             injured his back in 2007, not his hip, and this 2007 back
             injury caused his 2009 symptoms. After ordering further
             investigation, the hearing examiner ruled that Delacastro

                                               1
               failed to meet his burden to prove that he suffered a back
               injury in 2007 and that this back injury caused his symptoms
               in 2009. Does substantial evidence support the hearing
               examiner’s decision?

                                               FACTS

[¶4] Mr. Delacastro was the director of human resources at Cheyenne Regional
Medical Center. On June 29, 2007, he was carrying boxes of personnel files up some
stairs and felt a “tear or pinch” in his right leg. He believed he had pulled a muscle, and
waited a couple of weeks hoping the injury would heal.

[¶5] Mr. Delacastro’s right hip and leg continued to bother him, and on July 16, 2007,
he filed a report of injury with the Division stating that he “was carrying trash from the
basement of the HR house up the stairs and felt a pinch in the right hip.” He saw Dr.
Philip Sharp who diagnosed him with a right hip strain and lateral femoral cutaneous
nerve irritation.1 Dr. Sharp prescribed physical therapy, and Mr. Delacastro attended a
few therapy sessions. On July 24, 2007, he stated that he was doing better and did not
have any pinching, so he canceled his final therapy appointment.

[¶6] On August 30, 2007, Mr. Delacastro returned to physical therapy with complaints
of weakness and pain in his right hip. After five visits, he was discharged from physical
therapy, and the discharge notes stated that Mr. Delacastro reported his symptoms had
improved 90%, he could jog a short distance without pain, and his “quad strength” was
improving. He told the physical therapist that he had been hunting over the weekend
“and walked a lot without increased symptoms.” He stated that he saddled his horse at
least once while on that hunting trip.

[¶7] Mr. Delacastro left his job at Cheyenne Regional Medical Center and did not seek
additional treatment for his injury until June 2009, although he did report numbness and
tingling in his feet to another doctor in 2008. That doctor thought his cholesterol
medication may be causing the symptoms and advised him to stop taking it. On June 2,
2009, Mr. Delacastro returned to Dr. Sharp with complaints of pain in his back, both
thighs and numbness in his feet. He told Dr. Sharp that his symptoms were a progression
of the same discomfort he had after the 2007 work injury and he had never really
improved. Dr. Sharp stated in his notes: “I think there is enough connection and
symptoms to consider this possibly related” to the initial injury and referred him to a
neurosurgeon, Dr. Warren Roberts.
1
  “The lateral femoral cutaneous nerve is a branch of the lumbar plexus, exiting the spinal cord between
the L2 and L3 vertebrae. . . . Neuropathies of the lateral femoral cutaneous nerve can arise from many
situations, and often manifest as sensory loss or pain, which can be tingling, aching, or burning.”
www.healthline.com.



                                                   2
[¶8] Dr. Roberts ordered several tests including nerve conduction studies,
electromyography, MRIs and X-rays of the lumber and thoracic spine. Although the tests
revealed some mild abnormalities including an arachnoid2 cyst in the thoracic spine, Dr.
Roberts was unable to make a diagnosis and sent Mr. Delacastro for additional physical
therapy to rule out “lumbar pathology.” Mr. Delacastro was evaluated by a physical
therapist but did not continue with therapy because he could not afford it.

[¶9] The Division issued a final determination on July 13, 2009, denying coverage for
treatment of his back, finding that it was not related to the 2007 right hip injury which
had resolved by September 2007. Mr. Delacastro objected to the Division’s final
determination, stating that the injury was “never to [his] hip” and the symptoms in his
right leg “continue[d] exactly as first reported” with “no cessation.” The matter was
referred to the OAH for a contested case hearing.

[¶10] On December 24, 2009, Mr. Delacastro saw Dr. Kenneth Pettine, a spinal
specialist. After reviewing Mr. Delacastro’s medical records, Dr. Pettine believed that he
may have suffered an annular tear to the L2/L3 vertebrae, which would manifest itself
initially as a hip flexor injury. He recommended a discography be performed to
determine if there was a tear and stated that such a tear would be consistent with Mr.
Delacastro’s reported injury.

[¶11] On March 15, 2010, Dr. Paul Williams performed an independent medical
examination (IME) of Mr. Delacastro. Dr. Williams reviewed his medical history,
performed an examination, and concluded Mr. Delacastro’s initial injury was a strained
right hip which occurred at work in June 2007 but there was no evidence of a back injury.
He noted that Mr. Delacastro showed symptoms of sensory peripheral neuropathy in both
feet, but that condition was not related to the work injury. He disagreed with Dr.
Pettine’s recommendation for a discography, stating that some literature said the test was
a “poor localizer of pain generators,” and that Mr. Delacastro did not need any further
treatment of his lumbar spine.

[¶12] Dr. Pettine responded to Dr. Williams’ conclusions in a letter dated April 23,
2010. He stated that other literature supported the use of a discography. He concluded:
“I believe discography would either 100% prove the etiology of [Mr. Delacastro’s]
ongoing symptoms or it would prove the lumbar spine to not be the source of his
symptoms.”

[¶13] The OAH held a contested case hearing on April 27, 2010. Mr. Delacastro
testified and provided his medical records and the deposition of Dr. Pettine in support of

2
 The arachnoid is a “delicate membrane that encloses the spinal cord and brain.” American Heritage
Science Dictionary (2002).


                                                  3
his position that he injured his lumbar spine at work in 2007. The Division did not
present any testimony but relied upon its cross examination of Mr. Delacastro, the
exhibits (which included Dr. Williams’ IME report), and the deposition transcripts.

[¶14] The OAH issued an unusual decision on May 26, 2010,3 stating:

                  [T]his Office finds and concludes Delacastro proved the need
                  for a discogram 4 to either rule in or rule out damage to the
                  L2-3 level of his spine and the attendant cause of that
                  damage, if found. This Office finds that a discogram should
                  be approved on a rule out basis. In the event the discogram
                  demonstrates an annular tear at L2-L3, this Office finds
                  Delacastro’s pain symptoms in his leg, hip and back are
                  related to the June 29, 2007 work injury. However, in the
                  event the discogram fails to show an annular tear at L2-L3,
                  this Office finds Delacastro’s pain symptoms in his hip, leg
                  and back are not work related. A positive discogram will add
                  weight to Dr. Pettine’s opinion. A negative discogram will
                  leave this Office with two opinions. Dr. Williams’ opinion
                  will have been validated by the negative discogram. Thus, in
                  that event, Delacastro will have failed to carry his burden of
                  proof.

(footnote added). A few days later, on June 1, 2010, Mr. Delacastro filed a motion
seeking clarification of the agency order with regard to whether the outstanding medical
bills from Dr. Sharp, Dr. Roberts and Dr. Pettine should be paid by the Division. While
waiting for a ruling on the motion for clarification, Mr. Delacastro filed a petition for
judicial review in the district court. On July 9, 2010, the OAH issued an order on the
motion for clarification, stating that Mr. Delacastro’s medical bills up to and including
the discography should be paid.

[¶15] In the meantime, Mr. Delacastro underwent a lumbar discography, which showed
no “pain reproduction” at the lumbar discs from L2 to S1. Mr. Delacastro filed a motion
to supplement the record with the report from the discography and stated: “Because the
discogram came back normal, Dr. Pettine has advised Mr. Delacastro to under go [sic] a
nerve block at the L2-3 to determine the cause of his ongoing pain.” The OAH issued an
order on the motion to supplement the record which reviewed the facts and procedural
history of the case, granted the motion to supplement the record with the results of the


3
    The order was incorrectly dated May 26, 2009.
4
    Discography is also referred to as discogram.


                                                    4
discography, and denied Mr. Delacastro’s request for additional medical testing and/or
treatment of his back.

[¶16] The district court issued a decision on Mr. Delacastro’s petition for review on May
28, 2013, affirming the OAH decision.5 Mr. Delacastro then appealed to this Court.

                                        STANDARD OF REVIEW

[¶17] Judicial review of an 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:

                        (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



5
  Both parties had filed their briefs in the district court by January 14, 2011. There is no explanation as to why the
district court did not issue a decision until over two years later.


                                                           5
                          (E) Unsupported by substantial evidence in a
             case reviewed on the record of an agency hearing provided by
             statute.



Under § 16-3-114(c), we review the agency’s findings of fact by applying the substantial
evidence standard. Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 22, 188 P.3d 554, 561
(Wyo. 2008). Substantial evidence means “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. 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.” Bush v. State ex rel. Wyo. Workers’ Comp. Div.,
2005 WY 120, ¶ 5, 120 P.3d 176, 179 (Wyo. 2005) (citations omitted).

[¶18] When an agency determines the claimant did not satisfy his burden of proof, we
apply the following standard:

             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. See, Wyo. Consumer Group v. Public Serv. Comm’n of
             Wyo., 882 P.2d 858, 860-61 (Wyo. 1994); Spiegel, 549 P.2d
             at 1178 (discussing the definition of substantial evidence as
             “contrary to the overwhelming weight of the evidence”). If, in
             the course of its decision making process, the agency
             disregards certain evidence and explains its reasons for doing
             so based upon determinations of credibility or other factors
             contained in the record, its decision will be sustainable under
             the substantial evidence test. 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.

Dale, ¶ 22, 188 P.3d at 561.

[¶19] The arbitrary and capricious standard is also available as a “ ‘safety net’ to catch
agency action 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.” Id., ¶ 23, 188 P.3d at 561, quoting Newman, ¶ 23, 49 P.3d at 172. In
all cases, we review an agency’s conclusions of law de novo and affirm only when the


                                            6
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); Dale, ¶ 26, 188
P.3d at 561–62.

                                         DISCUSSION

      1. Denial of All Future Treatment

[¶20] Mr. Delacastro asserts that the OAH erred by denying benefits for all future
treatment, including treatment of his work-related hip injury. Certain aspects of the OAH
decision could be construed as denying all benefits for future treatment of his hip injury.
However, a review of the entire decision clearly demonstrates the hearing examiner
recognized that Mr. Delacastro had suffered a work-related injury to his hip.

[¶21] The focus of the contested case hearing was on whether treatment of his back was
causally related to the work injury; there was no dispute over whether Mr. Delacastro had
suffered a work related hip injury in 2007. In fact, the Division’s expert, Dr. Williams,
specifically acknowledged that Mr. Delacastro had suffered a right hip injury at work.
Thus, the Division states on appeal that Mr. Delacastro may seek future benefits for
treatment of his hip, which would be subject to a “separate administrative determination
where he must show that the treatment is related to his original right hip injury.” We
agree and, to the extent the OAH order is inconsistent, it is modified.

      2. Substantial Evidence Review of Back Treatment

[¶22] The OAH concluded Mr. Delacastro failed to prove his back problems were
related to his earlier hip injury. A workers’ compensation claimant has the burden of
proving each of the essential elements of his claim, including causation, by a
preponderance of the evidence. Kenyon v. State ex rel. Wyo. Workers’ Safety & Comp.
Div., 2011 WY 14, ¶ 22, 247 P.3d 845, 851 (Wyo. 2011). A claimant must demonstrate
that a causal connection exists between a work injury and the injury for which worker’s
compensation benefits are being sought. Id.

[¶23] The fact-finder in a contested case hearing, in this case the OAH, must evaluate
the medical records and testimony, including medical expert testimony, and determine
the weight of the available evidence. Id., ¶ 24, 247 P.3d at 852. The agency “‘is entitled
to disregard an expert opinion if [it] finds the opinion unreasonable, not adequately
supported by the facts upon which the opinion is based, or based upon an incomplete and
inaccurate medical history provided by the claimant.’” Watkins v. State ex rel. Wyo.
Workers’ Safety & Comp. Div., 2011 WY 49, ¶ 25, 250 P.3d 1082, 1090-91 (Wyo. 2011),
quoting Taylor v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2005 WY 148, ¶ 15,
123 P.3d 143, 148 (Wyo. 2005).



                                            7
[¶24] Mr. Delacastro’s position was that he actually injured his lower back, rather than
his hip, when he was carrying the boxes at work in June 2007. Dr. Pettine testified that
an annular tear at L2-L3 could manifest itself in hip pain, which could be mistaken as a
hip flexor strain. He also confirmed that the symptoms could worsen over time and
involve the back, legs and feet. The hearing examiner accepted Dr. Pettine’s opinion and
concluded that a discography of the L2-L3 vertebrae was compensable under the “rule
out” doctrine.

[¶25] In Snyder v. State ex rel. Wyo. Workers’ Comp. Div., 957 P.2d 289, 295 (Wyo.
1998), we concluded that “[a]n appropriate diagnostic measure is not non-compensable
merely because it fails to reveal an injury which is causally connected to an on-the-job
injury.” In Mitcheson v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2012 WY 74,
¶¶ 22-23, 277 P.3d 725, 734-35 (Wyo. 2012), we noted that such diagnostic tests are
appropriate to “rule out” other causes of a patient’s symptoms. To be compensable under
the “rule out” doctrine, the employee must produce an “objective indication of a
physiologic connection between the claimant’s injury and the diagnostic measure at
issue.” Id., ¶ 23, 277 P.3d at 734-35.

[¶26] The hearing examiner generally agreed with Mr. Delacastro’s position and
specifically approved all of his treatment and tests up to and including the discography.
Mr. Delacastro argues, however, the record does not support the hearing examiner’s
conclusion that, based upon the results of the discography, further diagnosis or treatment
of lumbar back problems were not compensable.

[¶27] The hearing examiner’s ruling is amply supported by the record. Dr. Williams
opined that there was not even a factual basis to justify the discography; nevertheless, the
OAH allowed it. After the discography came back normal, Mr. Delacastro sought
additional tests and treatment on his lumbar back, including a nerve root block
recommended by Dr. Pettine.6 The record does not support additional testing or
procedures on his lumbar spine.

[¶28] Dr. Pettine testified that Mr. Delacastro’s symptoms were consistent with an
annular tear at L2/L3. He stated the “discography would either 100% prove the etiology
of his ongoing symptoms or it would prove the lumbar spine not to be the source of his
symptoms.” The OAH took Dr. Pettine’s opinion at face value and ordered the Division
to pay for the discography. The hearing examiner stated that the results of the
discography would determine whether further treatment of Mr. Delacastro’s back would
be covered. The discography was negative, and consistent with its earlier ruling, the
hearing examiner concluded the treatment and tests up to and including the discography

6
  The record is unclear as to whether the nerve block procedure was presented to the Division for
administrative review prior to asking the OAH to approve it. Because neither party takes issue with the
procedure, we will not address it.


                                                  8
would be covered by the Division, but any further testing and/or treatment of Mr.
Delacastro’s back would not be. This conclusion was supported by substantial evidence
as it was not contrary to the overwhelming weight of the evidence. Indeed, it was
unquestionably supported by the evidence presented at the hearing, including the
testimony of Mr. Delacastro’s treating physician, Dr. Pettine.

[¶29] Affirmed, as modified.




                                         9
